                       THEAITORNEY                    GENERAL
                                     OFTEXAS

    GEBALDC.MANN                    Aus~rlv   11. TEXAR
I
A-l-l-URN&Y     c4ILCNJaRAL.




        Honorable George H. Sheppard          Opinion No. O-2924
        Comptroller of Public Accounts        He: Authority of Governor to grant
        Austin, Texas                         deficiency appropriation to supple-
                                              ment contingent appropriation to
        Dear Sir:                             Labor Commissioner.

                    We quote from your letter of Movember 20, 88 follows:

                  "The current general appropriation bill appropriates for the
        Bureau of Labor Statistics:

                  "'$lgOO.OO . . . for equipment, stationery, printing, postage,
        office supplies, telephone, telegraph, express and contingent expenses,'
        for the fiscal year ending August 31, 1941.

                    "The rider to this general appropriation bill, a.8found at page
        233   of the Act reads, a8 follows:

                  "'It is further provided that, during any three month period,
        no department can expend more than one-fourth of the appropriations made
        herein for; (a) traveling expenses, (b) contingent expenses, (c) telephone
        and telegraph, (a) postage, provided that any unexpended balances from
        preceding quartere may be expended during subsequent quarters.'

                  "The Bureau of Labor Statistics has spent one-fourth of the
        above mentioned appropriation before the end of the first three months
        of the fiscal year."

                  Upon thie statement, you aak the opinion of this department
        upon the following question:

                  "18 the governor authorized to grant a deficiency appropriation
        to the Labor Commissioner to supplement the above mentioned appropriation
        in such amount a8 is reasonably necessary to pay for extra help and mie-
        cellaneous expenses?"

                  The Governor derives his authority to grant deficiency appro-
        priations from the provisions of Article 4351, which reads:

                  "All heads of departments, manager* of State institutions or
        other persons intruded with the power or duty of contracting for supplies,
        or in any manner pledging the credit of the State for any deficiency that
        may arise under their management or control, shall, at least thirty bays
                                                                           -I   .




Hon. George H. Sheppard, page 2 (O-2924)



before such deficiency shall occur, make out a sworn estimate of the amount
neceesary to cover such deficiency until the meeting of the next Legis-
lature. Such estimate shall be immediately filed with the Governor, who
shall thereupon carefully examine the 6ame and approve or dieapprove the
same in whole or in part. When such deficiency claim, or any part thereof,
has been 80 approved by the Governor he shall indoree his approval thereon,
designating the amount and items thereof approved and the items disapproved,
and file same with the Comptroller; and the same shall be authority for
the Comptroller to draw his deficiency warrant for so much thereof as
may be approved; but no claim, or any part thereof, shall be allowed or
warrants drawn therefor by the Comptroller, or paid by the Treasurer,
unless such estimate has been so approved and filed. If there is a de-
ficiency appropriation sufficient to meet such claims, then a warrant
shall be drawn therefor and the same shall be paid; but, if there is no
such appropriation, or if such appropriation be so exhausted that it is
not sufficient to pay such deficiency claim, then a deficiency warrant
shall issue therefor; and such claim shall remain unpaid until provision
be made therefor at some session of the Legislature thereafter. The pro-
visions of this article shall not apply to fees and dues for which the
State may be liable under the general laws. When any inJury or damage
shall occur to any public property from flood, storm or any unavoidable
cause, the estimate may be filed at once but must be approved by the Gov-
ernor as provided in this article."

          In our opinion No. O-2118 (copy of which we enclose herewith)
we construed Article 4351. In that opinion we said:

          "Every head of a department, and every manager of a State in-
stitution, perhaps without exception, is by law clothed with the power
or duty of contracting (In the manner prescribed by law) for supplies,
traveling expenses, and other things necessary to the proper administra-
tion of the departmental or institutional affairs. . . 0"
          91. . . The duty of maintenance and carrying on is imposed by
the law and if the revenue appropriated to that legitimate and necessary
end proves to be insufficient, it amounts to the casual deficiency con-
templated by the Constitution and statutes."

          "An appropriation such as we are discussing is not the same
as an appropriation for a purpose which may be accomplished within the
sum appropriated therefor, like a building, a betterment and the like,
since in a case of that kind the building or the betterment may be
brought within the specific appropriation; whereas, such things as main-
tenance, incidentals, including traveling expenses, postage and the like
in their very nature are continuous and of daily necessity to the opera-
tion of the State's affairs - the very functioning of the government.
In the latter case the larger purpose of the Legislature is to authorize
the incurring of such maintenance and incidental expensea."
.   -




    Hon. George H. Sheppard, page 3 (O-2924)



              It is our opinion that, upon proper showing under the provisions
    of Article 4351, that the amount available for expenditure during any
    quarterly period from a "contingent" expense appropriation will be insuf-
    ficient to defray the expenses to be paid from such appropriation, neces-
    sary to carry on the functions of the particular department, the Governor
    may authorize the issuance of deficiency warrants to supplement the amount
    available for contingent expenses for the particular quarter involved.
    The application to the Governor must be made before the deficiency is
    incurred, under the provisions of Article 4351. When the deficiency is
    authorized to supplement the contingent expenses available for a particular
    quarter, the deficiency will not be available for expenditure in another
    quarter. And, of course, a8 held in our opinion No. o-2118,the Governor
    may authorize only such expenditures as are necessary to be made to carry
    on the business of the Department until the next meeting of the Legisla-
    ture; so that, at all events, the deficiency allowance will not be avail-
    able for expenditure after the Legislature convenes.

              No opinion has been sought, and none is expressed, with refer-
    ence to specific fact questions which may arise in connection with a particu-
    lar deficiency allowance by the Governor or expenditures made thereunder.
    The above general rules, however, can doubtless be applied by you without
    difficulty, to such specific matters.

                                                    Yours very truly

    APPROVED JAW 30, 1941                      ATTORNEY GENERAL OF TEXAS

    /II/Grover   Sellers

    FIRST ASSISTANT                            By   /s/ R. W. Fairchild
    ATIORRRY GEWERAL                                    R. W. Fairchild
                                                              Assistant

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