                OFFICE     OF TNE ATTORNEY            GENERAL       OF ‘I’-
Qourot%llucn                          AUBnN
A7ummwmmtau


          Honorable George H. Shepgard
          Comptroller    o? Pub110 Aooountr
          Austin,   Texas

          Dear Slrr
                                      OpInIon No. O-3830
                                      Re:  Transier   0r funds          In Old Age
                                           AssIOtanoe   FmdZ-
                      We are in reoelpt    or your recent   opinion   request
          relative   to ,the txnsrer    of certain  funds irc;n the State’ Old
          Age Aaslstanoe    Fund to the Federal    Old Age Assistsnae     Fund,
          rshlch the State   Department   of Fublic Welfare    has requested
          you to nake.
                      There are berore   us twc letters from the Depart-
           ment oi Publio    Welfare, one dated July 26, 1941, the other
           dated August 15, 19&l, from which xe understand     the iaots
           to be as tallows:
                            Sine6 July 1, 1936, the Federal                  and State      Govern-
           ments have heen oooperating               in making payments             ior old age
           aasistanoe       on an equal basis,           I. e., the Federal            Government
           has matched State         payments      to pensioners          dollar      iOr dollar.
           The-aUnIstration            Of the ?edbrrdl Soolal             SOOUrlty Act IO
           vested      In the Soolal      Seourlty       Board whloh has made various
           rules     and regulations       and Is oharged with the duty oi deter-
           mining that the Federal            monies are expended              or dlsttlbuted
           in aooordanoe with the Federal                  Soolal     Seourfty      Aot.    Eaoh
           quarter       the Federal    Oovernment has forwarded                 It6 pro rata
           part of the penalon          money to the State             Agenoy, based upon
            estlaates,      and the State agenoy eaoh month has made the aotual
           dIsbursemoMs          tc Individuals         after    determinine        their    ellulbIlIt~
          .aud needs.         From time to time the soolal                Seo&ty         Board Kas
           made audits        of the payments         to various       reoiplents,        and at pre-
            sent audits       have been oompleted             ooverlng    the periods        1936, 1937,
           1938, 1939, and 1940.
Honorable    Caorga   R. Sheppard,      page   2


                At the completiBn         of each audit period         the Social
Security      Board took exceptions           to various     payments     by the
State     agency and presented          aartaln    schedules      ot Vlscal     and
allglbllity        axoapt ions*.       After alaarance       material     had bean
submitted       by the State       agency in justlticatlon          ot the payments,
and appeal       perfected      to the Social      Security     Board,    said Board
rlnally      disallowed     and refused        to aoncur In payments         made to
certain      reclpiente     from July 1, 1936, to D?oember 31, 1939, In
tha total       arm or $23 662.87.           In the latter      or July 26, 194l,
mentioned       above,    It 1s stated       that *the amounts heretofore
shown as adjustments            have bean Oarefulg        checked and this
agency la In agreement             with the Sooial       Gaourity     Board that the
Federal      Old Age AaaIstanca         Fund should be reimbursed            due to
the adjustments          as shown ior the various           periods    In accordance
with the audits          submitted     by the Federal       Auditors.”

              The State   Department   of Fubllo Vialfare has tharatora
requested     you to transfer    #23,662.87   tron the State   Old Age
Assistance     ?Ud to the Federal      Old~Age Assistance    Fund In
setl~fnctlon     of this   clslm by the Social     Security  BoaQd.   You
request     our advice   as to whether    you are authorized   to make
this tranarer.
            The Public      :‘1alfare Aat,. enacted      by the 46th Legla-
lature  oreated    the “State       Departmeht    of Fubllc     Gelfaran,
which among other       things    wss organized     to administer       asalstanaa
to tee needy aged,         The duties      of t5e Texas Old Age Aaslstanoa
Cammlaslon,    together     with its funds, ware trenstarred              to such
nawlg created Dapartnen5.             This act was amended by the WPubllo
walrare  Act or 1941*, 17th Leglalqtura,              a+ractIve     July 2, 194l
md in general      continued       the same sdalnistratlve        arganization
as that provided      by the Act of 1939.

               Under Section      I of the “Fubli& ‘:‘altare     Act of 191,1w,
the Ptate Departcent         of Public    :7elf’are is charged with the
admlniatratlon        of the walrara     activltlas     of the State    as pro-
vided therein,        and it la provided        that II shall   WadmInIater
aaaiatanoa      to the needy aged.”         Seotion    6 oi aaid Aot daalgnataa
the State Department         as the State       agenoy to oooperata    with ths
Federal     Government     In the administration        oi the provision8     of
the Federal       Soolal   Security   Aot, Including      the payment of asslstan~
to the needy aged.
                                                                                 t




Honorable       George H. Shappa$d,        page   3


                Saotlona    26 and 27 bt the lot         of 19&l read       a8
rollowa     t
                *sea. 26. All asslatanoa              payments      rovldad for
          under    the tams      oi thla Aot ahall ba pa Bd by vouohara
          or warrants      drawn by theState          Comptroller      on the proper
          aooounts     of a *State      Department       of Dub110 Welrara        Fund*;
          ror the purpose         of parnittlng       the State     Comptrollerto
          properly     draw and Issue        auoh vouohars        or warrants,     the
          StateDapartment         of Pub110 Welrara         shall   furnish    the Comp-
          twollar     with a list      of or roll       oi those entitled        to asalat-
          anoa iron time to time,            together     with the amount to whloh
          each raolplant        la entitled.        When auah vowhan           or warrants
          have barn drawn they shall             be delivered       to the haoutlva
          Director     of the State       Dapartnent       of Fubllo Welfare,        who
          in turn shall        suparvlaa      the delivery       of same to the parsons
          entitled     thereto.
                 aSac. 27. (1) For tha Ruwposes of oarrylng               out the
           provlalona      of this Act, the Old Age Asslatanoa            Fund, the
            3lind    Assistance    Fund, and the Children         Aaalstanoe      Fund,
           aa provided      for in HoLae Bill No. 8, Aota of tine Forty-
           seventh    Legislature,      Regular    Seaaion are hereby made
           separate    aooounts     of the ‘State      Department    of Publlo
           Welfare    Fund* as oraated        by this aot.     Provided,     that
           all moneys In the saparate            aooounts   at tia State     Dapart-
           mentor Pub110 Welfare          Bund shall be expanded only for
           the purposes       of oarrylng      out the provlalons     of this Act,
           and for the purposes         for which said separate         acoounta
           were created       or appropriated.
                  e(2)    The State     Treasurer      18 hereby daalgnatad
           aa the opstodlan         of any and all money whloh may be ra-
            oelvad by th? State         of Texas (whloh the State          Dapartmant
            of public     Welfare    la authorized       to admlnlater),      from any
            appr>prlatlons      nreda by the Congress U the United States,
            ror the purpose       of cooperating        with the several      provlmlons
          ’ of the Federal       Social    Security     Aot, and all     money raoaItad
            from any other source;          and the State Treasurer         la ha?aby
            authorized      to reoelve     auoh money, pay It Into the propar,
            fund or the proper         aooount     of the Caneral     Fund of the
            State    Treasury,    provide     for the proper ouatody        thereof,    ~\,
            and to make dlsbursaments            therefrom    upon the order of tha
            State    Department     and upon warrant        of the State    Comptroller
             of Public     Aocounta.’                                                         !a,
Honorable     Cecrga    B. Sheppard,       page   4


                Tha Padoral       money mentioned       in 27(Z),     quoted above
la deposited        with the State        TraaaureS by vlrtua or an Rot or
Congress.       Sad. &2 U.S.C.A. ( ) O)Ol.,        393.      The Stats    monies
in the=sparata           aooouuta designated         as the Old Age Aaalatanoa
Fund of the State           ~apartmant      of Pub110 %aliara        Fund era
derived      iron tsxea levidd          and oolleotad       bp tha Stats    or
Texas and allooatad            to this apaolal       fund In the State        Treasury
or by appropriation           by the Laglalatura          iron another     fund ln
the treasury.          For example,       sea House Bill No.8, Aota l,7th
Legislature,        Regular      Session.     We assume the "State         Old
Age Aaaoolatlon          Fund* snd tha RFederal           Old Age Aaaistanoa       Fund-,
whloh are not mantlonad               In the lagIslatl~a       act,   are separate
aooounta       In the Old Age Aaalatanoa           Fund propr,        whloh you have
set up to iaollltata             the kaaplng    Of adequate       records   and a
proper aooountlng           between the Federal         and State     Governments
In their       oontrlbutlona        to such fund.
               It la stated     In the letter         of August lgth,      aooompany-
Ing the request        that the quarterly          payments had6 by the Soolal
Saourlty     Board are only a tentative             basis,    are not final
payments     to the State,      and are aubjeot          to review by the Federal
authoritlaa.        For the purpose        of this     oainlon     we ~111 eaa&‘oe
the correctness        of t?ia   atstenent      and ~111 aaauze further          thati
such runda are deposited           in trust     *tit& tie State       agency to be
distributed       as directed    by the Sootal         Security     Board, that the
exceptions       of said Board ror the pa8lods             audited    were well taken,
and that     the Federal      CoverlLaent    has a.vslld        claim torrelmburse-
ment . We express         no opinion    with reference          to these matters,
however.
            hrtlola  VIII,  Seotlon          6,   of the    Texas   Constitution
rexda   in part as iollowsr
              wNo money shall     be drqwn rromthe  Treasury  but In
        purauanoe   of spaclrlo     appropriations  made by law; nor
        shall   any appropriation      of money be made #or a longer
        term than two years, .l,. .I)
             The Board has not requested        that you draw a werrant
payable    to the Federal -Oovernme.nt and thua wlthdraw           this money
from the treasury       ln pamant     of the olala,     but Instead    has
requested    that the Federal      Govarnaaatqa     aooount in the Old A&a
Aaalatanoa     Fund be oradltad     with the ano,-nt of the olalm and
oharged against      the State    aooount   in aatlaiaotlon     of such
ola4.m.    Any dlf~arsnoa    between the above twc situations           would
.




    Honorable     George    ?I.’ Sheppard,    page   5


    srem to be one of form and not of substanoe.                        Thw whole basis
    and purpose        of this proposed         transfer    of funds Is it) <pay or
    discharge       the olaim amde by the Sooial              Seourity    Board against
    the State,        and&though      the immediate        action   may not be one
    of withdrawal          from the treaeury,         that  ir neoessarllp      its
    ultimate      result      and purpose.        In our opinion      the payment of
    this    alaim and withdrawal            of money from the treasury         16r that
    purpose      may not be done by lndlrectlon               in the absented       appro-
      riate    legislative       authorization.          MaCombs v. Dallas      County,
    v T.C.A.)     136 S. W, (26) 975.0
                    It is also a well established         principle      of law in
    this    jurisdlotlon        that a Department,    suah aa the State Depart-
    ment of Public          Welfare,    w&lch is a creature     of the statute
    has only authority            &a may be delegated    to it by the
    Legislature,         either    expaeesly  or by neoesaary       impllaatlon.
                We find nothing    in the PublioWelfare               Act of 194l
    which would authorize     this aotion,  but on the               contrary   it direots
    that the State money in the Old Age Assistance                    Fund be used to
    furnish  ass!stanoe   to old persons   who satisfy               the requlreaents
    provided  in: said aot.
                  The ourrent      appropriation    to the State    Department
    of Publla     Welfafr,     (S.B. No. 423, Aats f,7th Lgg., Regular         Session)
    Old Age Asslstanoe         Division,     out of tk    Old Age Asslstanoe    Fund,
    after  listing     various     administrative     expendas,  provides:
                   “All lnoomer allooated           or transferred      to the Old Age
            Assistmoe       Fund by H. B. NO. 8, Aots of the 47th Legisla-
            ture,     Regular   Session,     or other revenue        laws, for the pur-
            pOS0 of providing         and administering         old age assistance      is
            hereby appropriated          for eaoh of the fisoal           years  ending
            August 31, 1942, and August 31, 19l,3, tothe                   State Department
            o? Pub110 Welfare for old age assistanoe                   payments   and for
            salariee,      muipment,       supplies.     travel    malntenanoe.     ?nd aon-
            tinKent     expenses    neoesaary        in the extenplon      of said old&
            assistanoo,       . . .I (Emphasis         Sansa)
                 In our opinion       the above appropriation        is not euffioient
    to author184      the payment of this claim whioh has aoaumulated
    over a period       of years   since July 1, 1936.        oh odly aontezplates
    the current     payment of old age assistanoe         to needy reolpients
    and adminlstratire        expenses    in connection   therewith,      This oon-
    oluslon   Is supported       by Artlole   XX, Seation     2(4) of If. B. MO. 8,
    ;taayded      by 8. B. No. 190, Aota &7th Leg,, Regular              Session,   whio
            :
Honorlblr     Goorgr     H. Sheppard,         Paga 6


                "(4)     After    the above allooatlon               and payments
        have been made from ruah Olearanoe                        Fund, there          rh8ll
        be paId therefrom              into the Old-Age Assistanoe                    Fund on
        the first        of eaoh month, 8uoh aurn, whlah, taken with
        other 8ums paid Into ruah Old-Age A88lstanoe                                Fund by
        virtue       of othar      law8 still        In foroe        will      equal a total
        o? One Million           Seven Hundred Fifty *housand                     ($1,950,000.00)
        Dollarr,        ad 8U8h 8UlE 18 hereby appropriated                         for the'U8e
        provided        by law for 8uoh Old-Age Asri8tanoe                        Fund.        Should
        auoh payment8 iaSb thr Old-Age A88irtanoe                              Fund by virtue
        of other lavir exored One Million                       Saven Hundrrd Fifty
        Thou8and ()1,750,000.00)                  DOllar8,       In any one month,
        then not more than One Million                       Sersn Hundred FIity
        Thousand (#1,750,0OO.O0)                  Dollar8       o? 8uoh 8hall be ex-
        pended for old-age               ar8istanoe        In such month, and the
        remfalnbrr in exOe88 thereof                   shallb5.tithheld               until     the
         suooeeding        month or months and be taken Into oonsldera-
         tion In allooatIng              fund8 from the Clearance                 Fund to the
         Old*Age Assistanoe              Fund,    and. the amonnt paid in from the
         Clehrance       Fund into the Ol&kge Asslstsnae                         Fund 8hall
        be reduced         scoordlcgly         to the end that a stationary                     sum
         of Ona “illion          Seven Hundred Fifty               Thousand        ($1,750,000.00)
         Dollars       per nohth'be         avaiiable        frcn State Funds for 016
         age assistance;            provided,       however,       for the balance             of the
         figoal      veer ending August )1, 194l, the payments                              into the
         ZlO-Age Assistance              Fund shall        be made In the same manner
         as provided         above.        However age               we?t      the total        paid
         fro3 all sources             Into the 01 A 'Assistance                      Fund including
         the amount allocated               to the 01 Age Assistance                    Fund from
          the Clearanoe         Fund on the first              day of eaah month as pro-
         vided above, does not amount to One Million                               Seven Hundred
         Fifty      Thousand      ($1,750,000.00)            Dollars      for each month after
          t&e ccfeotive         date of this          aat,     then in that          event, the
          first     revenue     oolleoted        and which ordinarily                would be paid
          Into the General            Revenue Fund of the State                  OS Texas after
          the fIrat       day of eaoh month shall                 be set aside,          allocated,
          traneferred,         oredited,        and appropriated            to the Old-Age
          Assistanoe       Fund to the extent               and In rush sums a8 are neces-
          sary to provide           One Million         Seven Hundred FlSty Thousand
           ($1,750,000.00)          Dollar8      Jm thr Old-Age A88istanos                    Fund
          for esoh month with the effeotlve                       date of thi8 Aot, lnolud-
          lng the month o? June, 1941, and through                            the month of
          AUgU8t, 1941.           All     laws   in   confllot       with     this seotlon          are
          hereby repealed           to the extent           of suoh oonfliot            only.*
.




        .                                                            .
    Honorable    George II. Sheppard,      pago 7


                  It 18 our OpiniOn that your Department           i8 not
    authorized      to make the transfer       of funds as requested      by the
    State    Department    of Publia    Welfare.      WS do llOt eX 1888 EUly
    opinion    with reference      to the authority      of the leg f datum
    to make an appropriation         or any other question      whloh may
    arise    in oonnectlon    with this matter,       it being unnecessary
    ta do so in answering        the que-tlnn     presented.
                                                    Yours   very    truly
                                               ATTORJXY G?Z?RAL OF TEXAS


                                               By # Cecil    C. Cammaok
                                                               Aeeistant


    ccc;A!m




     Ok G.B.L.
                 4PmOvED Opinlor        Com3l~tee
                                                    BY B.W.B.      Chairman
