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                                          April 17, 1957


          Honorable Max E. Smith, Chairman
          House Appropriations Committee
          House of Representatives
          Capitol Station
          Austin, Texas
                                       Opinion No. WW-102
                                            Re: Is it necessary for the
                                                members of the Legislature
                                                to know whether the Comp-
                                                troller of Public Accounts
                                                would be required to con-
                                                sider the provisions of
                                                House Bills 8 and 584 in
                                                arriving at the estimate
                                                of the revenue available
                                                for the biennial appro-
                                                priation bill or any other
                                                appropriation bill that
                                                may be enacted by the Reg-
                                                ular Session of the 55th
                                                Legislature? Also related
          Dear Mr. Smithr                       questions.
               You have requested our opinion on the following ques-
          tionsz
                    “10 Is it necessary for the Members of the Legis-
                    lature to know whether the Comptroller of Public
                    Accounts would be required to consider the provi-
                    sions of House Bills.8 and 584 (providing they
                    have been enacted into law) in arriving at the
                    estimate of the revenue available for the biennial
                    appropriation bill or any other appropriation bill
                    that may be enacted by the Regular Session of the
                    55th Legislature?
                    "2* If House Bill No. 8 is Dnot an appropriation
                    within itself', as you state in your opinion, and
                    same passes both houses of the Legislature, will
                    it be necessary to pass an Dappropriation bill' In
                    order for the teachers and others included to re-
                                               .   .




Honorable Max E. Smith, page 2 (W-102)


     ceive ,the pay raise embodied'in said H. B.No.81"
     This qiiestioiiixat~~ll~ atildes'In viek of the'con-
     stitutional requ'irement'thst9io"money shall be
     drawn from~‘the'Treasiiry,but In pursuance'of " "
     specific approy)riationsmade'by law; . . .'(Const.,
     Art. VIII, 'Sec.~~6.)In other words, if H.B.No. 8
     is not an appropriatiotibill, how can money beob-
     talned under its terms without the specific appro-
     priation required?
     "3. If B.B.No. 8 does not have to be-certified
     by the Comptroller of Public Accounts, as your
     opinion states, and its provisions become law up-
     on passage by the Legislature and approval by the
     Governor, is-not such procedure a clear-cut-cir-
     cumvention of the'spirit, if not.the letter, of
     Section @a of Art. III of the Constitution?
    "4. Will you be"so kind~as to clarify the fol-
    lowing sentence which appears in the first para-
    graph,of page-2 of the opinion: 'Therefore,
    House Bill No:8 constitutes pre-existing law
    authorizing'future appronriations and is not an
    appropriation within itself,' particularly with
    referenceeto'the basis for H. B. No. 8 constitut-
    ing pre-existing law?"
     Section 6 of Article VIII of the Constitution of Texas
provides:
    "No money shall be drawn from the Treasury but
    in pursuance of specific appropriations made by
    law; nor shall any appropriation.of money be made
    for a longer term than two years, except by the
    first Legislature to assemble under this Con-
    stitution, which may make the necessary appro-
    priations to carry on the government until the
    assemblage of the sixteenth Legislature."
This constitutional provision controls all appropriations~
from the State Treasury and money not specifically appro-
priated by the Legislature cannot be withdrawn from the
Treasury. Pickle v. Finley 91 Tex. 484, 44 S;Wi 480
(1898); Lightfoot v. Lane, iO4 Tex. 447, 140 S.W. 89 (1911).
Honorable Max E. Smith, page 3 (WW-102)


     House Bill No. 8, as pointed out in Attorney General's
Opinion WW-93 (1957), establishesnew minimum salary
schedules for various public school teachers and'adminlstra-
tops and prescribes a formula basis for the calculation of
same. House Bill 584 provides for a minimum monthly salary
for school bus drivers with the further provision that funds
for such purpose shall be allocated from the Foundation
School Fund.. Neither House Bill 8 nor House Bill 584 makes
an appropriation which would authorize a withdrawal of any
state funds from the State Treasury.
     In the past, the Legislature has appropriated to the
Central Education Agency the Foundation School Fund for
the purpose of carrying out the provisions of S. B. 116,
Acts of the 51st Legislature, Regular Session 1949, ch.
334, p. 626, as amended and which House Bill 6 and House
Bill 584 proposes to amend. Without these specific appro-
priations, moneys allocated to the Foundation School Fund
could not be withdrawn from the State Treasury.
     Under the provisions of Subdivision 4a of Article XX
of House Bill 8, Acts of the 47th Legislature, Regular
Session, 1941, as amended, codified in Vernon's as Article
7083a, Subdivision 4a, the Foundation School Fund Budget
Committee is directed to allocate, transfer and credit to
the Foundation School Fund such an amount as Is determined
from time to time by the Foundation School Fund Budget Com-
mittee as may be needed to pay all accrued grants in full.
     Since the Foundation School Fund Budget Committee is
required to make allocations to the Foundation School Fund
of moneys needed to carry out the Foundation School Program,
both House Bill 8 and House Bill 584 will have a direct
effect on the amount of money available for appro rlation
and such money, if House Bill 8 and House Bill 58& are en-
acted into law, would be immediately set aside by the Comp-
troller of Public Accounts for such purposes. However, the
money could not be withdrawn from the State Treasury until
such a time as the Legislature makes specific appropria-
tions of such allocated funds, and at that time the Comp-
troller would have to determine if sufficient moneys are
available to carry out the provisions of House Bills 8 and
584.
     Section 49a of Article III of the Constitution of Texas
requires the Comptroller of Public Accounts to certify that
the amount appropriated in any bill containing an appropria-
tion is withinthe amount estimated to be available in the
affected funds. Since the allocations required to be made
Honorable Max E. Smith, page 4 &W-102)

affect the .amounts that will be available for appropria-
tion, the provisions of House Bill 8 and Rouse Bill 584,
if enacted into law, will directly affect certification
by the Comptroller of any bill containing an appropria-
tion, out of any fund from which the allocation has been
made.

      In view of the foregoing you are advised:
      (1) In answer to your first question it is neces-
sary for the Members of the Legislature to know whether
the Comptroller of Public Accounts would be required to
consider the provisions of House Bills 8 and 584 (pro-
viding they have been enacted into law) in arriving at
the estimate of the revenue available for the biennial
appropriation bill or any other appropriation bill that
may be enacted by the Regular Session of the 55th Legis-
lature.
      (2) In answer to your second question, it will be
necessary to pass an appropriation bill in order that
teachers and others included receive the pay raise em-
bodied in House Bill 8.
       (3)  In answer to your third question, you are ad-
vised that the passage of House Bill Number 8 prior to
the passage of the Biennial Appropriation Bill will not
in an manner circumvent the spirit   or the letter of Sec-
tion $ g(a) of Article III of the Constitution of Texas,
as the .qFlaryincreases provided for in House Bill Number
8, would have to be taken into account by the Comptroller
in making his certification of the Biennial Appropriation
Bill. If the Comptroller makes a correct estimate of anti-
cipated revenue then deficit financing would not occur.
In this connection it is to be noted that Section 49 (a)
does not prohibit deficit financina. Tt does prohibit
the valid enactment of any bill containingan approptiation
which does not contain a certificate by tne Comptroller
of Public Accounts that the amount appropriated is with-
in the amount estimated to be available in the affected
funds. However, if after the passage of the Biennial
Appropriation Bill the Legislature subsequently passed
House Bill Number 6 or any other legislation reducing
the amount of money coming into the General Revenue Fund,
and deficit financing resulted, the spirit of Section 49
(a) of Article III of the Constitution of Texas would be
circumvented. We need not pass upon the precise legal
effect of this until presented.
              .    -
.   -




        Honorable Max E. Smith, page 5   (W-102)

                                            _~       ._
             (4) 'Your fourth question requests this office
        to cl&rify the statement 'that House Bill 8'constitutes
        pre-existing'lavi;authoriifng"futura'approprilatlons;
        The sole question for consIderation,before this'office
        Was Whether House~Blll 8 or'Rouse'Bll1 584 contains an
        appropriation~~9qui~ih~~a~~tificafidn of‘the Comptroller
        of Public Accounts pursuant to Section 49a of Article
        III of the Constitution of Texas.
             Before an appropriation can be made for salaries
        for school teachers, State officers or State employees
        or for the payment of any claim against the State of
        Texas, there must-first be a valid pre-existing law
        authorizing the appropriation. Without pre-existing law,
        such as contained in House Bill 8, if enacted into law,
        the Legislature would not be authorized to appropriate
        any money'in excess'of-the amount authorized under ex-
        isting law. Therefore, if House Bill 8 Is enacted into
        law, it Will constltute'pre-existing law authorizing
        future appropriations even though the bill does not it-
        self contain an appropriation at this time.



                                  SUMMARY


                       Itwlll be necessary to pass an
                       appropriation bill In order that
                       teachers and others included re-
                       ceive the pay raise embodied In
                       House Bill 8 of the 55th Legis-
                       lature. The Comptroller 'of Pub-
                       lic Accounts would be required to
                       consider the,provisions of House
                       Bills 8 and 584 (providing they
                       have been enacted into flaw) in
                       arriving at the estimate
Honorable Max E. Smith, page 6 (WV-102)


                  of the revenue.~Wailable for
                  the biennj&l apptiopriatlonbill
                  or any other appropriation bill
                  that may be enacted by the Regu-
                  lar Session of the 55th Legisla-
                  ture.

                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas




JR:zt

APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
W. V. Geppert
C. K. Richards
J. C. Davis, Jr.
Edwin P. Horner
REVIJWEDFOR THE ATTORNEY GENERAL
BY:
      Geo. P. Blaakburn
