           TISEATORNEY                   GENERAL
                          OF TEXAS
                      ATJNTXN. Tssxws
                                    78711




                                 June 5, 1975


The Honorable Bob Bullock                    Opinion No. H- 622
Comptroller of Public Accounts
State Finance Building                       Re: Effect on the Comptroller’s
Austin, Texas                                certification of the general
                                             appropriations bill of omission
Dear Mr.   Bullock:                          of a page of the bill.

    You have asked our opinion on tive questions involving the Comptroller’s
ability to certify Senate Bill 52, the General Appropriations Bill enacted
by the 64th Legislature.   The questions arise from a clerical error which
occurred before the bill was enrolled and resulted in the omissiodof   a page.
The omitted page appears at page III-82 of the conference dommittee report
on Senate Bill No. 52.

    As we understand the facts, page III-82 was mistakenly omitted from one
copy of the conference committee report while the report was being prepared.
Three copies of the report were filed in the House of Representatives and
three copies were filed in the Senate. Page III-82 was contained in all three
copies of the report filed in the House and in two of the three reports filed
in the Senate. Both houses adopted the report.     Unfortunately, the copy
used by the enrolling room in preparing the enrolled version of the bill was
the one copy which did not contain page 111-82. Shortly before the adjourn-
ment sine
       --  die of the Legislature, the Lieutenant Governor and the Speaker
signed the enrolled copy in the presence of the Senate and the House of
Representatives respectively.     The error was discovered after tbe bill was
delivered to the Comptroller.     For easy reference a copy of the missing page
as it appeared in five of the six copies of the conference committee report
is attached as an appendix to this opinion. We believe this situation constitutes
an extraordinary case and our opinion is limited to these facts.




                                   p. 2755
The Honorable   Bob Bullock.   page 2   (H-622)




   Article 3, section 49a of the Texas Constitution outlines the Comptroller’s
duty to certify whether sufficient funds exist to cover the amount of an
appropriation bill.  That section provides in part:

           From and after January 1, 1945, save in the case
       of emergency and imperative public necessity and
       with a four-fifths vote of the total membership of
       each House, no appropriation in excess of tbe cash
       and anticipated revenue of the funds from which such
       appropriation is to be made shall be valid. From
       and after January 1. 1945, no bill containing an
       appropriation shall be considered aa passed or be
       sent to the Governor for consideration until and
       unless   the Comptroller of Public Accounts endoreea
       his certificate thereon showing that the amount appro-
       priated ia within the amount estimated to be available
       in the affected funds. When the Comptroller finds an
       appropriation bill exceeds the estimated revenue he
       shall endorse such finding thereon and return to the
       House in which same originated. Such information
       shall be immediately made known to both the House
       of Representatives and the Senate and the necessary
       steps shall be taken to bring such appropriation to
       within the revenue, either by providing additional
       revenue or reducing the appropriation.
       (Emphasis added)

    Your first question is:

       (1) Does the obvious omission of Page 82, Article III
       prevent the bill from being certified to the Governor
       by [the Comptroller]?

    The Comptroller’s   constitutional duty is to indicate whether “the amount
appropriated is within the amount estimated to be available in the affected
funds. ” Tbua, if the Comptroller is able to make this determination on the
basis of the information in the bill as it was presented to him, then he has
sufficient information to make the certification decision.   While we are aware
of the contents of the missing page we believe your first two questions do not
require reference to that page, since in our view all information relevant to the
certification process is contained on other pages.



                                    p. 2756
.      ,




    The Honorable     Bob Bullock, Rage 3      (H-622)




         At pages III-172   and III-175. of the enrolled bill, the recapitulation
    of the total appropriationa to the Highway Department is shown as
    $790,519,303    and $816,825,138    for fiscal yeara 1976 and 1977, respectively.
    The recapitulation also shows that the method of financing thia total appro-
    priation is to be accomplished by utilizing $650,000 and $250.000 of general
    revenue funds for the 1976 and 1977 tiscal years, respectively,       and utilizing
    $789.869.303    and $816,575,138    “from other funds” for the respective
    fiscal years.   On page III-81, the State Highway Fund “other than that money
    appropriated elsewhere in this Act from the State Highway Fund” is appro-
    priated for State Highway Department purposes.        The State Highway Fund
    then would be one of the other funds referred to in the recapitulation to be
    utilized in financing the Highway Department.       On page III-83 of the
    enrolled bill. the Farm-to-Market       Road Fund is appropriated to the State
    Highway Department.       The amount to be allocated to the Farm-to-Market
     Road Fund each year is set by statute at $15,000,000.       V. T. C. S.,
    art. 7083a. § 2(4-b).

         As the bill presented to the Comptroller contains (1) the total amount
    of the Highway Department Appropriation, (2) the amount of that appropriation
    which is to come from the general revenue fund, (3) the amount which is to
    come from other funds, (4) the other funds which are to be used, and (5) suf-
    ficient information by which the amount to come from each of the other
    funds can be ascertained, we believe the Comptroller has adequate data
    to fulfill his constitutional obligation of determining whether “the amount
    appropriated is within the amount estimated to be available in the affected
    funds. ‘I

           Your second question is:

              . . . [S]hould this office take into account the approxi-
              mately $800 million dollars per year that is not included
              in the bill in determining whether or not the numerous
              other appropriation items can be certified?

        Although reference is made to the approximately 800 million dollars
    per year which is on the omitted page, it should be noted that that figure
    represents a final total of several smaller figures almoat all of which appear
    on earlier pages.   The final totals appear elsewhere in the bill as well, and




                                            p. 2757
’   .       1




        The Honorable Bob Bullock, page 4      (H-622)




        thus you should consider them when deciding whether sufficient revenues are
        anticipated to permit you to certify the bill. The only appropriations figures
        which do not appear in complete detail are limited to approximately 5.6 million
        dollars for the two year period and relate to two programs.

           Your third and fourth questions are:

                     (3) . . . [Clan the Comptroller issue warrants
                after September 1, 1975 to the Highway Department
                even though there is no page 82 of Article III in the
                bill that is certified by this office?

                    (4) . . . [Wjhat document does the Comptroller
                use to determine the exact appropriations of the Texas
                Highway Department? . . .

             As we have indicated the total amount appropriated to Ihe Highway
        Department can be easily ascertained without making reference to the missing
        page. However, the specific purpose for which approximately 5.6 million
        dollars is appropriated over the biennium is not clear in the bill presented to
        you.   Since the funds clearly are appropriated to the Highway Department,
        and there is pre-existing statutory authority for the Department to expend
        these funds, we believe that if and when the bill is effective, warrants may
        be issued and may be spent in fulfilling those statutory responsibilities even
        though the exact use of certain portions of the funds is not specifically
        indicated in the bill delivered to you. See, Attorney General Letter Opinion
        MS-99 (1953); cf. , Atkins v. State Highway Department, 201 S. W. 226 (Tex.
        Civ. App. --Austin 1918. no writ); Attorney General Opinion V-1255 (1951).

            However, in determining the specific purposes for which the 5.6 million
        dollars can be spent, the Highway Department and the Comptroller should
        be guided by the intent of the Legislature and to determine that intent in this
        case should use the conference committee report which was the document on
        which the Legislature voted and which clearly contains the missing page.
        Letter Advisory No. 72 (1973); Attorney General Opinions C-131 (1963);
        V-1312 (1951); V-1234 (1951).

            Because of our answers to your first four questions it is unnecessary
        to consider your fifth question.




                                             p. 2758
*     ’




    The Honorable Bob Bullock,   page 5      (H-622)




                              SUMMARY

               There is sufficient information in the enrolled copy
           of Senate Bill No. 52, the General Appropriations Bill
           for fiscal years 1976 and 1977, for the Comptroller to
           determine whether to certify the bill. In the issuance
           of warrants and the expenditure of funds appropriated
           to the Highway Department, the Comptroller and the
           Department should be guided by the intent of the Legir-
           lature.

                                                   Very truly yours,




                                                   Attorney General of Texas

    APPROVED:




    DAVID hi. KENDALL,     First Assiatant




    C. ROBERT HEATH,      Chairman
    Opinion Committee




                                       p. 2759
                                    APPENDIX
                          Attorney General Opinion H-622



                                                                     S.B.   No. 52

                              HIGHWAY DEPARTMENT
                                 jContinued1

7. Travel and Information Service,
   estimated to be                                      2.498.368       2.724,271
8. Gulf Intracoastal Waterway:
   a.   For administration of Senate
        Bill No. 472, Acts of the Sixty-
        fourth Legislature,   Regular
        Session, 1975                                     100,000               U. B.
   b.   For purchase of right-of-way,    if
        necessary,   in accordance with the
        provisions of Senate Bill No.
        472. Acts of the Sixty-fourth
        Legislature,   Regular Session,
        1975                                              300.000               U.B.

    GRAND TOTAL, HIGHWAY DEPARTMENT
      (All funds, Including Sums
      Certain and Estimated)                       $790.519,303      $816.825.138

   Method of Financing:

   State Highway Fund, estimated                    $774,869,303     $801.575.138
   Farm-to-Market  Road Fund                           15,ooo.ooo       15.000,000
   General Revenue Fund                                    650.000          250.000
                                                                             & U.B.
     Total, Method of Financing,
        estimated                                  $790.519,303      $816,825,138




                                              p. 2760
                             APPENDIX (continued)
                        Attorney General Opinion H-622



                        Schedule of Exempt Positions

                                                     1976          1977

Commissioners,     3                         $        17,700   $    18,900
State Highway Engineer                                40,500        42,300
Assistant State Highway Engineer, 2                   31,400        33,200
Bridge Engineer                                       27,900        29,700
Chief Engineer, Highway Design                        27,900        29,700
Chief Engineer, Maintenance and
   Gpe ration                                         27,900         29,700
District Engineers, 4                                 27,900         29,700
Engineer--Manager                                     27,900         29.700
District Engineers. 21                                27,400         29,200
Construction Engineer                                 27.400         29,200
Engineer VI, 3                                        26,200         28,000
Engineer, Secondary Roads                             27,400         29,200
Right-of-Way Engineer                                 27,400         29,200
Materials and Tests Engineer                          27,400         29,200
Engineer-Director,   Automation                       27,400         29,200
Engineer-Director,   Planning
   and Research                                       27.400         29,200
Director, Motor Vehicle                               26.800         28,600
Director, Finance                                     26,800         28,600
Director, Equipment and Procurement                   26,800         28,600
Personnel and Wage Administrator                      26,800         28,600
Director, Travel and Information                      26.800         28,600
Director, Insurance                                   26,800         28.600
Accounts Examiner III                                 16,140         17.244




                                III - 82                           05/30/75   Cl




                                           p. 2761
