          THE    ATTORNEY       GENERAL
                    OF  TEXAS

                     Wh   14, 1988




Honorable Bob Bullock     Opinion NO. J&872
Comptroller of Public
   Accounts               Re:    Authority of State Auditor
L.B.J. Building           and Legislative  Audit Committee
Austin, Texas 78774       to conduct economv and efficiencv.
                          audits and effectiveness    audits
                          under section   321.0133 of the
                          Texas   Government    Code,    and
                          related questions (RQ-1279)

Dear Mr. Bullock:

     YOU ask six questions regarding the proper construc-
tion and constitutionality of two recently enacted bills
that.set   forth responsibilities    and authority' of the
State Auditor and the Legislative Audit Committee.        The
Committee comprises the Lieutenant Governor,.the     Speaker
of the House, and the chairmen of the Senate State Affairs
Committee,   the Senate     Finance Committee, .the     House
Appropriations Committee,    and the House Nays and Means
Committee.   See Gov't Code 9321.002.      Several of your
questions ra=    issues that have not been addressed      yet
specifically in any court case or any Attorney       General
opinion in Texas: these are issues of first impression.
The first bill with which you are concerned, House Bill
No. 699 [hereinafter H.B. 6991 amends the Government     Code
by adding several sections to chapter     321 governing   the
State Auditor and       the Legislative   Audit   Committee,
including sections    321.0133, 321.0134 and 321.016, that
define specifically the sorts of audits that the auditor
may conduct with the approval of the committee.          Acts
1987, 70th Leg., .ch. 862, 56 at 5876-5889.      The second
bill with which you are concerned, House Bill No. 2181
[hereinafter H.B. 21811, amends sections 51.005 and 61.065
of the Education    Code, and purports to confer joint
rulemaking authority on the State Auditor and the College
Coordinating   Board.    Acts 1987, 70th Leg., ch. 823,
§§3.06, 4.02, at 5712-13, 5725-26. Before we turn to your
first question, we first present a brief history of the
position of State Auditor    in order that we may place    in
perspective the scope of the 1987 amendments.



                          p. 4225
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Honorable Bob Bullock - Page 2     (~~-872)


                                                                ?


      The position    of   "State Auditor   and   Efficiency
Expert," an executive branch officer      appointed  by the
Governor ', was created in 1929.1 Acts 1929, 41-d Leg., 1st     ?
C-S., ch. 91, at 222. He was to be '*an investigator       of
all custodians of public funds and disbursing officers ,of
the State and personnel of departments."    Acts 1929, 41st
L-3., 1st C.S., ch. 91, 51, at 222.      He was granted   the
authority "to inspect all the books and records of all the
officers,    departments  and institutions   of the     State
Government" and to   "investigate the efficiency of the the
personnel and clerical    forces thereof." Acts 1929, 41st
L-3. I 1st C.S., ch. 91, 53, at 223. Section 4 of the act
provided the following:

        In addition to the other duties provided
       for said Auditor,      he shall     thoroughly
       examine all     departments  of    the   State
       Government  with special regard to their
       activities and the duplication     of efforts
       between departments, and the efficiency     of
       the subordinate   employees in each of such
       several departments.   He shall examine   into
       the work done by the subordinate     employees
       in the several departments      of .the State
       Government.

          Upon completing  the examination   of any
       department he shall furnish the head of said
       department with a report on    (a) the effi-
       ciency of the subordinate employees; (b) the
       status and condition of all public funds in
       charge of said department; (c) the amount of
       duplication between work done by the depart-
       ment so examined and other departments    of
       the State Government: (d) such a system of
       accounts as will provide      for a uniform
       system of auditing, bookkeeping, and system



      1. We note that section 402.026,         Gov't Code,
reposes responsibility   in the Attorney    General,   inter
u,    to inspect monthly   "the accounts of the offices of
the state treasurer,   comptroller, and each other person
responsible for collection or custody of state funds." It
appears that this provision, which was first enacted      in
1879 and subsequently   recodified three times before    its
inclusion in the non-substantive recodification      of the
Government Code in 1985, heretofore has not been enforced.




                         p. 4226
    Honorable Bob Bullock - Page 3    (J&872)




           of accounts for every department of State.
           He shall also make recommendations to the
           said head of      the departments   for   the
           elimination of duplication and inefficiency.
           A copy of each such report submitted by said
           officer to the head of the department   shall
           be forthwith furnished to the Governor,   the
           Speaker of the House, and the President    of
           the Senate. Nothing contained herein    shall
           be construed   as    authorizing  the   State
           Auditor to employ or discharge     any state
           employee other than those herein authorized
           to be appointed by him for his department.

    Acts 1929, 41st Leg.; 1st C.S., ch. 91, 54, at 223.    And
    finally, he was required, at section 5, to prepare       a
    report showing the status of all public funds in the state
    and to +ecommend   to the Legislature  such changes as he
    deems necessary to provide uniform, adequate and efficient
    systems of records and accounting in each department."
    Acts 1929, 41st Leg., 1st C.S., ch. 91, 55, at 224.

          The 1929 act was repealed in 1943. The position was
    renamed "State Auditor," and appointment power was vested
    in the newly-created Legislative Audit Committee, a joint
    interim committee    of the legislature.    Acts   1943, 48th
    Leg.,  ch.293, at  429 [codified  at V.T.C.S.  arts.   4413a-13
    through 4413a-241. Section 7 of 1943 act continued            to
    repose in the Auditor the authority to audit all accounts,
    books, and financial records of every agency of the state,
    but the act for the first time purported to confer on the
    Auditor the authority, not just to report to the legisla-
    ture recommended changes, but also to direct the adminis-
    tration or execution of the laws by executive            branch
    agencies themselves    insofar as he was authorized:         "TO
    require such changes in the accounting system or systems
    and record or records of any office, department,         board,
    bureau, institution, commission or state agency, that 'in
    his opinion will augment or provide a uniform,        adequate,
    and efficient    system of records and accounting."         Acts
    1943, 48th Leg., ch. 293, §7(3), at 431.      Section  8 of  the
    1943 act also required the Auditor to prepare, again, a
    report for the head of every agency on, inter alia, the
P
    efficiency   of subordinate      employees,   the amount      of
    duplication between work done by the examined agency and
    other agencies, and "any suggested changes looking toward
    economy and reduction of number of clerical          and other
    employees,   and    the elimination     of duplication       and
    inefficiency."    Section 8 also set forth the following:




                               p. 4227
Honorable Bob Bullock - Page 4 (JR-872)




          Reports   shall   also contain    specific
       recommendations to the Legislature for the
       amendment of existing laws or the passage of
       new laws designed to improve the functioning
       of various    departments, boards, bureaus,
       institutions or agencies of State Government
       to the end that more efficient service    may
       be rendered and the cost of government
       reduced.

          All recommendations   submitted by    the
       State Auditor  shall be confined to those
       matters properly coming within his jurisdic-
       tion, which is to see that the laws passed
       by the Legislature dealing with the expendi-
       ture of public moneys are in all respects
       carefully observed, and that the attention
       of the Legislature is directed to all cases
       of violation   of the law and to       those
       instances where there is need for change of
       existing laws or the passage of new laws to
       secure the efficient 'spending of public
       funds. The State Auditor shall not include
       in his recommendations to the Legislature
       any recommendations as to the sources   from
       which taxes shall be raised to meet the
       governmental expense.

Acts 1943, 48th Leg., ch. 293, 58, at 432. And finally,
section 10 of the act authorized      the Legislative   Audit
Committee to conduct hearings with the head of any agency
where the Auditor   has found "evidence of improper prac-
tices of financial administration       or of any general
incompetency  of    personnel,  inadequacy    of    financial
records." Acts 1943, 48th Leg., ch. 293, 510, at 433.
The committee was required to report to the legislature
any refusal of the agency officials        to remedy    "Such
incompetency  or    the, installation    of proper     fiscal
records." Id.     Except for a 1977 amendment giving      the
committee authority to subpoena information that it seeks,
the act remained unchanged until 1985. At that time, the
articles governing the Legislative Audit Committee and the
State Auditor were recodified in a nonsubstantive revision
and placed in Chapter 3 of the newly-enacted      Government
Code. House Bill No. 699 and House Bill No. 2181, the two
bills about which you inquire, were adopted in 1987 by the
70th session of the Legislature.




                          p. 4228
Honorable Bob Bullock - Page 5      (JM-872)




     Prior to the     enactment of    H.B. 699,     section
321.013(a) of the Government Code provided, inter alia,
that the State Auditor shall "perform an audit of all
governmental accounts, books, and other financial   records
of any state officer or department."  The chapter did not
define "audit," but section 321.014(a) provided that the
Vtate Auditor shall conduct each audit as directed by the
committee and as prescribed by this chapter."     With the
passage of H.B. 699, section 321.013(f) of the Government
Code now confers authority on the State Auditor to conduct
various types of audits, specifically "financial ~audits,
compliance   audits,  economy   and   efficiency    audits,
effectiveness audits, special audits, and investigations
as defined by this chapter."

     Sections 321.0133 and 321.0134 of the Government Code
define "economy and efficiency audit" and "effectiveness
audit" respectively.  Section 321.0133 of the Government
Code provides:

       An economy and efficiency audit is an   audit
       to determine:

           (1) whether   the  audited    entity   is
       managing    or  utilizing   its    resources,
       including state funds, personnel,   property,
       equipment, and space, in an economical    and
       efficient manner:

           (2) causes of inefficiencies or uneconom-
       ical practices,   including  inadequacies   in
       management information systems, internal and
       administrative   procedures,   organizational
       structure, use of resources, allocation     of
       personnel, purchasing, policies, and eguip-
       ment; and

          (3) whether financial, program, and stat-
       istical reports of      the audited   entity
       contain    useful  data    and  are   fairly
       presented.

Section 321.0134 of the Government Code provides:

          (a) An effectiveness audit is an audit to
       determine,  according   to established
       designated prcgram objectives, responsibilyf
       ties or duties, statutes and regulations,
       program performance   criteria,  or program
       evaluation standards:



                          p. 4229
Honorable Bob Bullock - Page 6 W-872)




             (1) whether   the    objectives    and
          intended benefits are being      achieved
          efficiently and effectively: and

             (2) whether the program duplicates,
          overlaps, or conflicts with another state
          program.

           (b) An effectiveness audit may be sched-
       uled only when the audited entity     is not
       scheduled for review under the Texas Sunset
       Act (Chapter 325).

Section 321.016 of the Government Code requires,      inter
u,    that the State Auditor report to the Governor,    the
Legislative Audit Committee,  the administrative head and
the chairman of the governing body of the affected agency,
any evidence of improper practices of financial    adminis-
tration or "ineffective program performance"; the Legisla-
tive Audit Committee  is required then to report to the
legislature any refusal by the administrative head or the
governing body of the agency to make changes    recommended
by the committee.

     You first ask whether section 321.016 of the Govern-
ment Code, as amended by H.B. 699, is unconstitutional   to
the extent that it purports to give the Legislative   Audit
Committee the authority to order changes in the way in
which legislation  is implemented  or administered   by an
executive agency. Section 321.016, Government Code, now
provides the following:

           (a) If in the course of an audit the
       State Auditor    finds evidence of improper
       practices    of     financial    administration,
       inadequate fiscal records, uneconomical       use
       of    resources,     or    ineffective   program
       performance,    the     State   Auditor,    after
       consulting with the head of the agency,
       shall immediately report the evidence to the
       governor, the committee, and the administra-
       tive head and the chairman of the governing
       body of the affected department.

          (b) If in the course of an audit the
       State Auditor finds evidence of an illegal
       transaction,  the   State   Auditor,    after
       consulting with the head of the agency,




                          p. 4230
Honorable Bob Bullock - Page 7 (JB-872)




       shall immediately report the transaction to
       the governor, the committee, and the appro-
       priate legal authority.

          (c) Immediately    after   the   committee
       receives a report from the State Auditor
       alleging  improper practices     of financial
       administration,     uneconomical    use    of
       resources, or ineffective program perform-
       ance, the committee shall review the report       '
       and shall consult with and may hold hearings
       with the     administrative  head   and   the
       chairman of the governing      body of    the
       affected department regarding the report.

          (d) If the administrative   head or the
       governing body of the affected department
       refuses to make the changes recommended   by
       the committee at the hearing or provide  any
       additional information or reports requested,
       the committee  shall report the refusal to
       the legislature.

     The various    statutes enacted through the       years
conferring authority upon the Legislative Audit Committee
and its effective agent, the State Auditor, reveal a trend
toward the conferral of ever-expanding authority on both.
The 1929 act      conferred upon the State Auditor       and
Efficiency Expert the authority to examine the fiscal
records of every state agency and to make recommendations
to the    legislature    regarding   the   elimination    of
duplication and inefficiency.   The 1943 act attempted    to
expand the authority of the newly-named State Auditor     by
conferring upon him the power, not only to report to the
legislature recommended changes, but to direct the admin-
istration or execution of the laws by requiring         each
agency to install whatever method of accounting and record
keeping that he recommended.     After conducting  hearings
with the heads of those agencies      in which the State
Auditor found evidence of improper practices of financial
administration, inadequate financial records, or "general
incompetency of personnel," the newly-created   Legislative
Audit Committee was required to report to the legislature
as a whole any refusal of agency officials to remedy those
identified problems. And with the 1987 amendments to the
recently-codified   Government   Code, the State Auditor
appears to be empowered to "audit" not just the efficiency
and cost effectiveness of an agency's performance,       but
also the substantive performance       of the tasks      and
responsibilities imposed by law on an executive      agency,




                          p, 4231
Honorable Bob Bullock - Page 8 (JM-872)




 .   to determine whether there is "ineffective     program
;eZormance."   It appears, for example, that inquiry into
whether the College Coordinating  Board, for instance,   is
in fact carrying out its statutory responsibilities   rests
now with the Legislative Audit Committee rather than with
the Committee   on Higher Education    in the House      of
Representatives and with the Committee on Education in the
Senate.

     Article II, section 1, of the Texas Constitution
provides   for the separation   of powers between     the
executive, the judicial, and the legislative branches  of
government.   It states:

       The powers of the Government of the State of
       Texas shall be divided into three distinct
       departments, each of which shall be confided
       to a separate body of magistracy, to wit:
       Those which are Legislative   to one, those
      'which are Executive to another, and those
       which are Judicial to another: and        no
       person, or collection  of persons, being of
       one of these departments, shall exercise any
       power properly  attached to either of the
       others,  except in the instances      herein
       expressly permitted.

    This office has consistently held that any attempt by
the legislature to supervise the implementation of duly
enacted statutes through the means of a legislative
committee or through some means other than the normal
legislative processes (set forth in sections 28 through 40
of article III of the Texas Constitution) violates article
II, section 1. Attorney General Opinions MW-460      (1982) r
V-1305 (1951); V-1254 (1951); and O-4609     (1942).    This
rule is the rule in virtually every other state that has
had cause to address this issue. See, e.9.      Legislative
Research Comm'n v. Brown, 664 S.W.2d 907 (Ky: 1984); State
ex rel. SteDhan v. Kansas House of ReDresentatives,      687
P.2d 622 (Kan. 1984); General Assemblv of the State of New
Jersev v. Bvrne, 448 A.2d 438 (N.J. 1982); State ex rel.
Barker v. Manchin, 279 S.E.2d 622 (W. Va. 1981); State of
Alaska v. A.L.I.V.E.   Voluntary   606 P.2d 769      (Alaska
1980); see also Bonfield, S&e        Administrative     Rule
Makinq, 58.3.2(c).

     In Attorney   General Opinion O-4609      (1942), this
office addressed whether     a bill     creating   a    Joint
Legislative Advisory  Committee   and conferring     specific
powers thereon was constitutional.   The opinion construed



                         p. 4232
Honorable Bob Bullock - Page 9       (~~-872)




a rural aid appropriations bill, Acts 1941, 47th Leg., ch.
549, at 880, that created a joint legislative      advisory
committee composed of five senate members and five house
members.  The committee was given the authority to approve
numerous transactions,   including the receipt of tuition
payments and transportation aid by school districts.   This
office held that only   so much of the  act that created   a
joint legislative advisory committee to study school   laws
as an aid to their recodification was constitutional;    the
provisions reposing   in the committee   the authority    to
administer the law were unconstitutional.

       It is the function of the legislative branch
       of the government  to make the laws: it is
       the function of the executive branch of the
       government to administer  and execute those
       laws. In the statute under consideration,
       the Legislature of the State of Texas has
       undertaken not only to declare what the law
       shall be, which is clearly its prerogative,
       but has also undertaken to clothe a portion
       of the membership of the Legislature,     the
       Joint Legislative Advisory Committee,    with
       the authority to execute and administer   the
       law passed by     the Legislature.      Under
       Article 2. Section 1. of the Constitution of
       the State of Texas. the Legislature        is
       powerless to clothe itself, or a nortion   of
       its members.    with executive    authoritv.
       (Emphasis added.)
Attorney General Opinion O-4609 (1942) at 8.

     In Attorney General Opinions V-1305       and   V-1254
(19511,   this   office   declared   unconstitutional
appropriations act rider that attempted to confer on tii
Legislative Budget Board the authority to require of
various executive branch administrative agencies    further
itemization of appropriations or specific approval of the
expenditure of appropriated funds by the board.

          The phrase 'any power properly    attached
       to either of the others'      [set forth in
       Article II, section l] prompts inquiry as to
       what powers belong to each branch.     'Legis-
       lative' means 'making, or having the power
       to make, a law or laws.'       Webster's   New
       International  Dictionary   (2d Ed.     1938).
       This includes making and itemizing approp-
       riations.     'The    power     to     itemize



                           p. 4233
Honorable Bob Bullock - Page 10 (JR-872)




       appropriations is a legislative power which
       it may exercise     if it sees fit as lona
       the matter    is in its hands. . . .          Tit:       ?
       legislation      is      complete    when     the
       ;zEp;iation    is made.' -Peoole V. Tremaine
             . . 817    (N.Y. Ct. ADD.     1929).    Th;
       monev once ansronriated. th;-Legislature is
       no longer authorized to concern itself with
       the further segregation and disbursement       of
       the funds. the constitutional         inhibition
       beina not onlv against actual usurnation       of
       the    function,     but    also   against    one
       denartment's   setting      itself   UD    in   a
       sunervisorv caoacitv over the actions          of
       another.   lcitation omittedl.      Parenthetic-
       allv. it mav be noted here that if the
       gnnroval of nrooosed exnenditures       be con-
       sidered a legislative      function. still such
       function could not be delegated bv the body
       a   a      1             few of its     members.
       [%tati%"o~it~~d.~

          The legislative    function'being    to make
       laws, the executive     function is to carry
       them out.      Webster's    New    International
       Dictionary (2d Ed. 1938), in its definition
       of  'executive,'     uses the      phrases    'or
       carrying   into   effect'   .  . . 'or   secures
       their due performance.'     More snecificallv,
       the fiscal administration of the affairs       of
       the ao ernment has been held to be an
       executi:e dutv      lcitation omitted.1      The
       above riders 'thus      attern&    to  vest
       executive Dower in a ioint committee of tFZ
       legislative branch.    (Emphasis added.)

Attorney General Opinion V-1254    (1951) at 15.

     And finally, in Attorney       General Opinion MW-460
(1982), this office held unconstitutional legislation that
purported to confer authority    on the standing committees
of both houses of the legislature effectively to veto or
repeal administrative rules adopted by executive     agencies
pursuant  to the     Administrative   Procedure  and    Texas
Register Act, article 6252-13a, V.T.C.S.    The opinion held
that the discretionary   rulemaking authority delegated    to
an administrative agency is an executive function; it is
therefore impermissible under article II, section 1 of the
Texas Constitution,   for the legislature    or one of its
committees to usurp the function. See Walker v. Baker,          -7




                         p. 4234
    Honorable Bob Bullock - Page 11   (JM-872)

                                                                .




    196 S.W.2d 324 (Tex. 1946); Kx oarte Younablood;251     S.W.
    509 (Tex. Crim. App. 1923).

         In passing upon the constitutionality of any statute,
    we begin with a presumption of validity.  Smith v. Davis,
    426 S.W.2d 827   (Tex. 1968); Texas National Guard Armory
    Board v. McGraw     126 S.W.2d 627 (Tex. 1939).    We are
    required, moreov&,    to construe the code .provisions at
    issue in a way that comports with the constitution, if any
    such reasonable c'onstruction is possible.    McKinnev
    Blankenshin, 282 S.W.2d 691 (Tex. 1955); Thomas v. Groeby;
    212 S.W.2d 625 (Tex. 1948). See also Gov't Code, 5311.021
    (Code Construction     Act): Local   Gov't Code,    51.002
    (application of Code Construction Act to Local Government
    Code).

         If we were to construe section 321.016 of the
    Government Code in the fashion that you suggest, i.e., as
    conferring authority on the Legislative Audit Committee to
    order changes in the way that executive agencies implement
    or administer duly       enacted statutes,    we would     be
    constrained  to    hold    the   section   unconstitutional.
    However, we do not so construe that provision.    Subsection
    (c) of section 321.016 merely confers on the committee the
    authority to make recommendations to the various executive
    agencies, recommendations    that each agency may ignore.
    However, subsection    (d) provides that, if any agency
    refuses to accept any such recommendation, the committee
    is required to inform the legislature as a whole of that
    fact. Subsection (d) permits an ill-disguised attempt by
    the committee to direct the methods by which    investigated
    administrative agencies execute the laws. While it is true
    that the committee itself technically is not conferred the
    authority to impose sanctions or to enforce compliance     by
    those administrative agencies that refuse to comply with
    committee recommendations, the absence of such conferral
    of authority does not resolve the article II, section      1,
    issue. Subsection    (d) clearly acts in a punitive,      and
    perhaps in 6 coercive, fashion that is tantamount to a
    legislative usurpation of executive power, in violation of
    article II, section 1, of the Texas Constitution.      We do
    not question the authority of the legislature or of a
    committee of the legislature to gather information and to
P
    investigate those matters about which     it properly   could
    enact legislation,   a subject that we will address more
    fully in answer to your fourth and fifth questions.        We
    question only the propriety of making a committee's report
    to the legislature as a whole mandatory upon an adminis-
    trative agency's refusal to comply with the committee's
    recommendations.



                            p. 4235
Honorable Bob Bullock - Page 12 (JB-872)




     As a matter of law, the committee does not have the
authority to order any executive agency to implement      or
administer any law in any particular manner, any more than
it has authority to direct officers in the judicial branch
in the construction   of the laws, which the constitution
reposes   in   the judicial    branch. The    legislature's
authority to direct the administration      of laws whose
execution is reposed by statute in.so-called   "legislative
agencies," see. e.g., Gov't Code, §§326.001-326.003,      is
greater, 'of course. Accordingly, we conclude that chapter
321 of the Government Code, which creates the Legislative
Audit Committee   and the office of State Auditor       and
confers powers and duties thereon, does not authorize   the
Legislative Audit Committee to order an executive    agency
to change the way in which    it implements or administers
any law; however, subsection   (d) of section 321.016 does
authorize an impermissible intrusion by the legislative
branch into areas of administration reposed by the Texas
Constitution in the executive branch.     Insofar as that
subsection requires the committee to report to the legis-
lature as a whole    in the event that an administrative
agency fails to adopt its recommendations,   subsection (d)
is unconstitutional.

     You next ask whether   the State Auditor,    whom you
characterize as, in effect, an employee of the Legisla-
ture, may properly exercise authority to supervise members
of the executive branch     in their implementation      of
statutes or whether his proper role is investigatory only.
As we noted earlier, the position of State Auditor      was
created in 1943 to replace an executive       officer, the
"State Auditor and Efficiency Expert," appointed by the
governor.  Acts 1929, 41st Leg., 1st C.S., ch. 91, at 222.
The 1943 act repealed the 1929 act, created the Legisla-
tive Audit    Committee,  renamed    the position    "State
Auditor," and conferred   authority on the committee     to
appoint him. There is no question that the State Auditor
is an appointee and an agent of the legislature.        &g
Gov't Code, §§326.001-326.003    (authorizing co-operation
between houses    of the    legislature   and   leaislative
agencies) (formerly codified as article 5429g, V.T.C.S.);
see also Attorney General Opinions MB-192 (1980): H-1063
(1977); V-504 (1948). Accordingly,    we conclude that the
State Auditor is a subordinate of the legislative branch.

     For the reasons set forth in answer to your     first
question, if we were to construe chapter 321 as conferring
on the State Auditor the authority to order any changes in
the way in which executive agencies administer the laws,
we would be constrained   to declare any such provisions




                          p. 4236
Honorable Bob Bullock - Page 13 04-872)




unconstitutional as a violation of article II, section   1,
of the Texas Constitution.   And, again, for the reasons
set forth in answer to your first question, we do not
construe any provision  of chapter 321 of the Government
Code as conferring authority on the State Auditor to order
executive agencies to change the way in which statutes are
implemented or administered.   If the State Auditor were
part of the executive branch whose activities          were
directed, as they were prior to the 1943 enactment, by the
Governor rather than by the Legislative Audit Committee,
his authority possibly could be broader.  But such is not
the case.

     Section 321.013 of the Government Code sets forth the
powers and duties of the State Auditor and provides:

           (a) The State   Auditor shall    conduct
       audits of all departments, including  insti-
       tutions of higher education, as specified in
       the audit plan. At the direction     of the
       committee, the State Auditor shall conduct
       .an audit or investigation   of any entity
       receiving funds from the state.

           (b) The State Auditor shall conduct the
       audits in accordance with generally accepted
       auditing standards as prescribed      by the
       American   Institute   of Certified    Public
       Accountants,   the Governmental    Accounting
       Standards Board, the United States General
       Accounting Office, or other professionally
       recognized entities that prescribe   auditing
       standards.

           (c) The State Auditor shall determine the
       audit plan for the state for each fiscal
       year.    In devising the    plan, the State
       Auditor    shall   consider   recommendations
       concerning coordination of agency functions
       made by the committee composed       of    the
       Legislative Budget Board, Sunset Advisory
       Commission, and State Auditor's Office. The
       plan shall provide   for auditing of federal
       programs at least once in each fiscal bien-
       nium and shall ensure that audit reguire-
       ments of all bond covenants and other credit
       or financial agreements are satisfied.     The
       committee shall review and approve the plan.




                         p. 4237
Honorable Bob Bullock - Page 14 (JK-872)




         (d) At any time    during an audit     or
      investigation, the State Auditor may require
      the assistance of the administrative   head,
      official,  auditor, accountant,   or   other
      employees of the entity being audited or
      investigated.

          (e) The State Auditor    is entitled   to
     ,access to all of the books,        accounts,
      confidential  or   unconfidential   reports,
      vouchers, or other records of information in
      any department or entity subject to audit,
      including access to all electronic      data.
      However, the State Auditor has access to
      information and data the release of which is
      restricted under federal law only with the
      approval of the appropriate federal adminis-
      trative agency, and the State Auditor   shall
      have access to copyrighted     or restricted
      information obtained by the Office of the
      Comptroller of Public Accounts under sub-
      scription agreements  and utilized    in the
      preparation of economic estimates only for
      audit purposes.

         (f) The State Auditor may conduct   finan-
      cial audits, compliance audits, economy and
      efficiency  audits, effectiveness    audits,
      special audits,    and   investigations    as
      defined by this chapter and specified in the
      audit plan.

          (g) To the extent that the performance of
      the powers and duties of the State Auditor
      under law is not impeded or         otherwise
      hindered,   the State Auditor    shall   make
      reasonable efforts to coordinate     requests
      for employee assistance under Subsection (d)
      or requests for access to books, accounts,
      vouchers, records, or data under Subsection
      (e) so asp not to hinder the daily operations
      of the audited entity.

         (h) The State Auditor may not conduct
      audits of    private   entities   concerning
      collection or remittance of taxes or fees to
      the state if the entity is subject to audit
      by another state agency for the taxes or
      fees.




                       p. 4238
Honorable Bob Bullock - Page 15   (JM-872)

                    .




          (i) If the State Auditor decides a change
       in an accounting system is necessary,    the
       State Auditor shall consider the present
       system of books, records, accounts,      and
       reports to ensure that the transition   will
       be gradual and that the past and present
       records will be coordinated into the new
       system.

Sections 321.0131 through 321.0136 define the various
audits and investigations   that the State Auditor may
conduct. Nothing in these sections or in section 321.016,
purports to confer any authority upon the State Auditor to
direct the activities of state agencies.

     In your third question you ask whether        sections
51.005 and 61.065 of the Education Code, as amended by
H.B. 2181, are unconstitutional insofar as they purport to
allow the State Auditor,     an agent of the legislative
branch, to prescribe    administrative   rules for    state
institutions of higher education.      Prior to the 1987
amendments, the authority to prescribe such administrative
rules was reposed solely in the College Coordinating
Board. In a letter accompanying a brief submitted to this
office by the State Auditor, it is urged that, if it is
constitutional for the legislature to delegate to a member
of the executive branch the authority properly to promul-
gate rules that have the force and effect of law, it is
certainly constitutional for the legislature to delegate
such authority to a member of the legislative branch.    We
disagree; we conclude that the amended sections of the
Education   Code are unconstitutional    insofar as    they
purport to confer joint rulemaking authority on the State
Auditor and the College Coordinating Board.

     Section 51.005 of the EducationCode     provides:

           (a) True and full accounts shall be kept
       by the governing board and by the employees
       of the institution of all funds collected
       from all sources and of all sums paid out
       and the persons to whom and the purposes for
       which the sums are paid.       The governing
       board shall annually, between    September  1
       and January 1, print a complete report of
       all the sums collected,    all expenditures,
       and all sums remaining on hand. The report




                        P. 4239
Honorable Bob Bullock - Page 16 (JM-872)

           .




       shall show the true condition of all funds
       as of the August 31 preceding as well as the
       collections   and   expenditures   for   the
       preceding year.

           (b) ReDOrtS under this section must be in
       a form aDVrOVed iointlv bv the coordinatinq
       board and the state auditor. Tbe accoun&&lg
       and classification vrocedures of each insti-
       tution must be consistent with        uniform
       procedure   vrescribed  f r that DurDose   bv
       the coor%natinci     boar: and    the   state
       auditor.   The requirements imvosed bv the
       coordinating board and state auditor must be
       designed to reduce DaDerwork and duvlicative
       reDorts .

          (c) The governing board shall furnish one
       copy of the report each to the governor,
       comptroller   of   public    accounts,   state
       auditor, Texas Higher Education Coordinating
       Board, Legislative     Budget Board,     House
       Appropriations   Committee,   Senate   Finance
       Committee, and Legislative Reference    Libra-      1
       W.   The governing board shall retain     five
       copies of the report for distribution       to
       legislators   or other state officials      on
       request.   (Emphasis added.)

Section 61.065 of the Education Code provides:



          (a) The state auditor and the            board
       iointlv shall DreSCribe      and DeriOdiCallV
       UDdate a     uniform 'svstem     of     financial
       accounting and reDortina for the institu-
       tions    of   higher    education.      includinq
       definitions of the elements of cost on the
       basis of which aDDroDriations shall be made
       and financial records shall be maintained.
       In order     that the     uniform    system    of
       financial accounting     and reporting      shall
       provide for maximum consistency        with the
       national    reporting    system     for    higher       ?
       education,    the    uniform    system      shall
       incorporate    insofar    as    possible      the
       provisions of the financial accounting        and
       reporting manual published by the National
       Association   of   College    and     University



                         p. 4240
Honorable Bob Bullock - Page 17 (JM-872)




       Business Officers.    The accounts of the
       institutions shall be maintained and audited
       in accordance with the approved reporting
       system.

           (b) The coordinating board shall annually
       evaluate the informational requirements    of
       the state for purposes of simplifying insti-
       tutional reports of every kind and shall
       consult with the state auditor in relation
       to appropriate changes in the uniform system
       of financial     accounting  and   reporting.
       (Emphasis added.)

     In legal theory, the legislative power vested in the
legislature by article III, section 1, of the constitution
must be exercised by it alone.         Texas National     Guard
Armorv Board v. McGraw, sunra; Brown v. Humble Oil 8
Refining Co., 83 S.W.2d 935 (Tex. 1935). The principle of
non-delegation,     however,     has     certain     important
qualifications.   See aenerallv, Annot., Permissible limits
to delegation of legislative Dower, 79 L.Ed. 414        (1935).
Many powers properly have been delegated by the legisla-
ture to administrative     agencies.    See, e.9              q
Authoritv of Dallas v. Hiaainbotham, 143 s.i: 79""yEi.
1940); Brazos River Conservation & Reclamation Dist. v.
McGraw, 91 S.W.2d 665 (Tex. 1936); Trimmier v. Carlton,
296 S.W.Zd 1070 (Tex. 1927). Among them has been the
power to make rules having the force and effect of law.
S , e.a., Housing Authoritv of Dallas v. Hiaainbotham,
$&a   .; O'Brien v. Amerman,   247 S.W. 270      (Tex. 1922):
Soears v. Citv of San Antonio, 223 S.W. 166 (Tex. 1920).
Valid rules promulgated by an administrative agency acting
within its statutory authority have the force and effect
of legislation. Lewis v. Jacksonville Building and Loan
Association    540 S.W.2d    307 (Tex.      1976).    A    rule
oromulaated'bv an administrative aaencv acting within       its
delegated authority should be considered      under the same
.principles as if it were the act of the legislature.
Texas Licuor Control Board v. Attic Club, Inc., 457 S.W.
41 (Tex. 1970). Nevertheless, when such rulemaking        power
is vested in an agency of the state, it is regarded as an
incident of the executive power to administer laws enacted
by the legislature, and not as a power to enact laws.        It
is held that an act of the legislature that is complete
and comprehensive   in itself and which confers upon an
agency authority only to establish rules, regulations       and
minimum standards to reasonably carry out the expressed
purposes of the leaislature's        act, does not make a
constitutionally   forbidden    delegation   of    legislative




                          p. 4241
Honorable Bob Bullock - Page 18 (JM-872)




power. Oxford v. Hill 558 S.W.2d 557 (Tex. Civ. App. -
Austin 1977, writ ref:d). It confers only the power to
efficiently   administer   the    complete   law    already
established by the legislature.    See E
561 S.W.2d 503 (Tex. Crim. App. 1978).
Comoanv v. State   153 S.W.2d 681   (Tex. 1941)  (delegated
power to fix rat& is legislative power).

     The power to control or correct decisions    committed
to administrators by law is an executive,function.   Walker
v. Baker, m.      The legislature,   of course, may in the
first instance severely     restrict the discretion      of
executive officers or administrators   to make rules by so
thoroughly detailing  legislation before    it leaves its
ambit that little or no room is left for administrative
interpretation.  &g Fire DsDartment    f Citv of Fort Worth
v. Citv of F r-tWorth 217 S.W.2d 664O(Tex. 1949); Letter
Advisory No.O2 (1973): And, by the proper exercise of its
law-making powers, the legislature may supersede or repeal
any agency rule or decision that has acquired the force
and effect of law.    But when a statute commits. to an
administrative agency's control the power to execute   that
law and promulgate rules in order to better administer the
legislative policy embodied therein, neither the legisla-
ture nor any of its committees may direct that agency
regarding the manner in which the executive discretion    is
thus reposed. Tex. Const. art. II, 51.

     If a discretionary   Nlemaking    function delegated   to
an administrative agency is an executive function -- as we
think it is -- it is impermissible for the legislature (or
one of its committees)     to usurp that function.        Tex.
Const. art. II, 51, Walker v. Baker, m;             Ex oarte
Younablood,   suora; Attorney      General opinions    V-1254
(1951); O-4609    (1942).   See State ex r 1        Judae v.
Legislative Finance Committee,      et al., 5:3- P.2d 1317
(Mont. 1975). Se     also Anderson v. Lamm, 579 P.2d 620
(Colo. 1978): Ine r      ni i      of the Justices    to the
Governor, 341 N.E.2de25z (:a::. 1976). See also, Railroad
Commission of Texas v. Shell Oil ComDanv, 161 S.W.Zd      1022
(Tex. 1942): penison v. State, 61 S.W.2d 1017 (Tex. Civ.
APP. - Austin), writ ref'd ner curiam, 61 S.W.2d          1022
(Tex. 1933).

     The amendments also violate  article III, section 1,
of the Texas Constitution, even if the powers conferred
could be said to be purely legislative in character.   It
was held in Parks v. West,  111 S.W. 726 (Tex. 1908), and
reiterated in Walker v. Baker, m,         that where the
constitution gives a power and prescribes    the means by




                         p. 4242
    Honorable Bob Bullock - Page 19 (JM-872)




    which or the manner in which   it is to be exercised, such
    means or manner is exclusive of all others. Article   III,
    section 1, of the constitution vests the legislative power
    of the state "in a Senate and House of Representatives,
    which together  shall be styled 'The Legislature of the
    State of Texas."' Sections 29 through 40 of that article
    detail at great length the manner in which the legislature.
    must exercise its right to legislate.    Because the means
    by which the legislature is to accomplish the enactment of
    laws is expressly provided by the constitution,        any
    authority for the legislature to exercise that right in a
    different mode is excluded.    m   Walker v. Baker, suvra:
    American Indemnitv  Comnanv v.   Citv of Austin, 246 S.W.
    1019 (Tex. Crim. App. 1922).

         Accordingly,  we conclude    that the two   amended
    Education Code provisions   are unconstitutional because
    they attempt to confer upon members of the legislative
    branch of government an executive power to efficiently
    administer laws enacted by the legislature.

         The restrictions in article II, section 1, apply, to
P   a "collection of persons" of the legislative    department.
    It was held in Ex carte Younablood, 251. S.W. 509      (Tex.
    Crim. App.   1923), that when a power conferred     by the
    constitution upon the~legislature or either branch thereof
    is in turn conferred by the constitutionally     designated
    legislative body upon a committee composed of members     of
    the house and senate, the committee    is a "collection   of
    persons" within the proscription of the foregoing   consti-
    tutional provision -- and one to which non-legislative
    powers cannot be delegated.   See also Walker v. Baker, 196
    S.W.Zd 324 (Tex. 1946); Attorney General Opinions V-1254
    (1951); o-4609   (1942). See also Anderson v. Lamm, 579
    P.2d 620 (Colo. 1978); In re Ovinion    of the Justices   to
    the Governor, 341 N.E.2d 254 (Mass. 1976): Bramlette v.
    Stringer    195 S.E. 257    (So. Car. 1938); Peoole       v.
    Tremaine: 168 N.E. 817 (N.Y., 1929).

         It has been suggested that Texas has adopted the more
    modern view of the doctrine of separation of powers, which
    permits cooperation between branches of government  rather
    than enforces a rigid separation between them.      It is
    contended that the older view, perhaps best exemplified by
    Kilbourn v. Thomnson, 103 U.S. 168 (1880), has been dis-
    carded in favor of a more flexible construction of the
    constitutional provision.  In Kilbourn v. Thomnson, w,
    the United States Supreme Court set forth a classic state-
    ment of the older construction:




                             p. 4243
Honorable Bob Bullock - Page 20 (JW-872)




      It is believed to be one of the chief merits
      of the American system of written     constitu-
      tional law, that all powers       intrusted  to
      government, whether state or national,      are
      divided into the three grand departments     of
      government, the executive, the legislative,
      and the judicial.      That the       functions
      appropriate to each of these branches        of
      government shall be vested in a separate
      body of public servants, anp that           the
      perfection of the svstem recuires that the
      lines which sevarate      and divide      thes
      deDartmentS be broadlv and clearlv defined:!
      Jt is also essential      to the successful
      working of this svstem that the nersons
      intrusted with Dower in anv one of these
      branches shall not be oermitted to encroach
      unon the oowers confided to the others. but
      that each shall bv the law of its 'creation
      be limited to the exercise of the vowers
      xrouriate   to its own deDartment    and to no
      Ethel;. (Emphasis added).

Id. at 190-191. A statement  of.the more modern view was
well expressed  in J. W. Hamnton. Jr. & co. v. United
States, 276 U.S. 394 (1928):

       Our   Federal     Constitution  and     State
       Constitutions of this country divide the
       governmental   power   into three    branches
       . . . . [T]he rule is . . . in carrying   out
       that constitutional    division into    three
       branches it is a breach of the fundamental
       law if Congress gives up its legislative
       power and transfers it to the President    or
       to the Judicial branch, or if by law it
       attempts to invest itself or its members
       with either executive or judicial power.
       This is not to say that the'three    branches
       are not coordinate Darts of one government
       and that each in the field of its duties may
       not invoke the action of the other two
       branches insofar as the action invoked shall
       not be an assumvtion of the Constitutional
       field of action of another branch.         In
       determining   what it mav do in       seekinq
       assistance from another branch. the extent




                        p. 4244
        Honorable Bob Bullock - Page 21 (JW-872)




               and character of that assistance  must be
               fixed according to common sense and the
               inherent necessities   of the aovernmental
               coordination.  (Emphasis added.)

        a. at 406: see also, y nastown Sheet 8 Tube Co.           v.
        Sawer, 343 U.S. 579 at 6:: (1952). But see, Singer,       2a
        Sutherland on Statuto rv Construction, 53.07. The rule    as
        stated in Sutherland seems to be:

               This interpretation of the doctrine permits
               the exercise by one department      of some
               powers of the other departments when it is
               essential to the discharge    of a primary
               function, when it is not an assumption   of
               the whole power of another department,  and
               when the exercise of the other power does
               not jeopardize individual liberty.

        Id. at 83.06 (and cases cited therein).

             The'argument that. Texas adopts the more modern view
    P
        rests primarily   upon language found in a case that
        received no review by the Supreme Court, Coates v.
        Windham, 613 S.W.Zd 572 (Tex. Civ. App. - Austin 1981, no
        writ), which upheld an appropriations     act rider that
        conferred upon certain, specified public officers the
        limited and negative power of declining   approval of any
        particular prison site proposed by the Department      of
        Corrections.  The relevant passage provides:

               We believe that it is well settled that this
               constitutional   prohibition   [providing for
               separation of powers] states a princivle      of
               government and not a rigid classification as
               in a table of organization. This provision
               must be     interpreted along     with    other
               constitutional provisions, and when this is
               done it is clear that the Constitution      does
               three things:   (1) it provides     for three
               polar functions of      government;    (2)    it
               delegates certain powers to each of the
               three departments in a distribution of all
               governmental   powers;   and  (3) it     blends
P
               legislative, executive, and judicial powers
               in a great many cases. [Footnote omitted.]
               The proper   interpretation   of Article     II,
               section   1  is  therefore dictated by its
               context. The proper interpretation is that
               this provision   prohibits   a transfer    of a



                                  p. 4245
Honorable Bob Bullock - Page 22 (JM-872)




       whole mass of powers from one department  to
       another and it prohibits   a person of one
       branch from exercising a power historically             --..
       or inherently belonging  to another depart-
       ment. It may not be interpreted    in a way
       that prevents  cooperation  or coordination
       between two or more branches of government,
       hindering altogether effective governmental
       action. It was designed,     as were other
       checks and balances, to prevent    excesses.
       (Emphasis in original).

613 S.W.2d 572 at 576.

      For purposes of this discussion, we are not prepared
 to accept the proposition    that Texas adopts the more
 modern, flexible construction of the separation of powers
 doctrine, absent a definite ruling of the Texas Supreme
 Court. We note that it is only under that construction
 that article II, section 1, would permit the legislature,
 or more specifically a joint interim committee thereof, to
'appoint the State Auditor, since the appointment    power,
 except for specific constitutional    provisions  reposing
 such authority in others, is historically one that inheres
 in the office of Governor.   See, Walker v. Baker, w.
 Because you do not ask about the constitutionality of the
 statute pursuant to which the State Auditor is appointed,
 we need not resolve that issue.      But even this more
 flexible construction   will not    permit the sort      of
 intrusion that the Education Code amendments contemplate.

      In State Board of Insurance v. Betts, 308 S.W.Zd 846
(Tex. 1958), the court held that, in an instance in which
the attorney  for a statutory receiver   for an insurance
company resigned and the board of insurance commissioners
did not designate a successor,    the district  judge had
discretionary  power to appoint an attorney      for    the
receiver, since he had judicial control or supervision   of
the receivership    case.  The   statute then in      force
conferred appointment authority upon the board. The court
seemed to accept the modern construction of the separation
of powers principle when it rejected a challenge to the
judge's action under article II, section 1. But the court
stated, at 851-852:
                                                               -I
        However the controlling  factor in settling
        the constitutional  point presented  is the
        presence or absence of interference with the
        effective judicial control occasioned by the
        executive power to select a liquidator.
        . . . It is onlv when the functioning of the


                          p. 4246
        Honorable Bob Bullock - Page 23 (JM-872)




               judicial orocess in a field constitutionally
               committed to the control of the courts      is
               interfered  with    bv   the   executive    or
               legislative branches th t      constitutional
               problem arises.   (Emphas?s zdded.)

             Analogously, we conclude that the Education        Code
        amendments about which you inquire permit the legislature,
        or more specifically an effective agent of a committee    of
        the legislature, to interfere with the proper    functioning
        of an executive branch agency in a field constitutionally
        committed to its control,     i.e. the proper execution   or
        administration of the law and the responsibilities      duly
        imposed upon it by statute. Our construction of article
        II, section 1, and article III, section 1, suggests that
        the State Auditor may. not constitutionally        prescribe
        accounting and record keeping procedures for all state
        agencies. There is no question that the legislature        is
        authorized to prescribe the accounting and record keeping
        procedures to be followed by state agencies.          It is
        doubtful, however, whether the State Auditor        and the
        Legislative Audit Committee may prescribe such procedures.
    -
        Although such authority has been conferred by statute
        sinc.e 1943, general acquiescence in a custom which may not
        have resulted in a harmful violation of the constitution
        does not nreclude    a contest when substantial rights are
        insisted upon. Citv of Los Anaeles v. Los Anaeies       City
        Water Co., 177 U.S. 558 (1919).     If it be urged that the
        result that we reach here is unrealistic, impractical, and
        inefficient, we note the words of the United          States
        Supreme Court in the recent case of Immiciration and
        Naturalization Service v. Chadha, 462 U.S. 919 at 944
        11983) fwhich held that the so-called "leaislative     veto"
        &an    unconstitutional violation of the implied separation
        of powers principle of the U.S. Constitution):

               . . . the fact that a given law or procedure
               is efficient, convenient, and useful in fac-
               'ilitating functions of government,  standing
               alone, will not save it if it is contrary to
               the Constitution.   Convenience and efficien-
               cy are not the nrimarv obiectives -- or the
               hallmarks -- of democratic government. . . .
-            We conclude that the Education Code provisions   about
        which you inquire interfere impermissibly with the proper
        administration of the laws reposed by article II, section
        1, in the executive branch. Accordingly, we conclude that
        it is constitutionally  impermissible for the legislature
        to delegate to the      State Auditor and the       College



                                p. 4247
Honorable Bob Bullock - Page 24 (JM-872)




Coordinating  Board the     joint   authority   to    promulgate
administrative rules.

     You next ask:

          Whether the State Auditor's authority         as
       legislative staff is similarly   limited         to
       investigating matters  that could lead           to
       legislation?

       Assuming a 'yes' answer to my fourth          gues-
       tion, my fifth question is:

          Since the    Comptroller   and   nd    the
       Legislature has .been given constitutional
       responsibility for the revenue estimating/
       budget certification  function, Tex. Const.
       Art. III, Sec. 49a, and it is not clear what
       legislation   could   constitutionally     be
       enacted controlling the manner in which the
       revenue estimate for budget certification is
       determined, whether the State Auditor     has
       authority to evaluate or inquire into how
       the revenue estimating/budget   certification
       function is carried out.

     Courts in this state long ago upheld the right of the
legislature, to appoint committees for the purposes      of
conducting   investigations   and  gathering    information
regarding the possible enactment of legislation.   Ex varte
Fercruson; 15 S.W.Zd 650 (Tex. 1929); Terre11 v. Kinq,    14
S.W.Zd 786 (Tex. 1929).

       The legislature has the power to investigate
       any subject regarding which   it may desire
       information in connection with the proper
       discharge of its function to enact, amend or
       repeal statutes or to perform any other act
       delegated to it by the constitution. . . .
       A legislature in conducting whatever  ingui-
       sitions the proper exercise of its functions
       require, must be as broad as the subject to
       which the inquiry properly entered into has
       relation.

Mason, Manual of Leqislative Procedure,   9795 (1970).        As
the Texas Supreme Court declared in Terre11 v. Kinq:

       Not only does the Constitution, in the grant
       of the rule-making power [by means of which



                          p. 4248
    Honorable Bob Bullock - Page 25 (JM-872)




           each house is empowered to organize itself],
           authorize either-house to name such commit-
           tees as it may deem necessary or proper   for
           purposes of investigation and inquiry, when
           looking to the discharge of any legitimate
           function or duty of such house, but the
           Constitution   goes    further  and     makes
           consideration by a committee, a condition
           precedent  to the enactment    of any law.
           Section 37, article 3.

    14 S.W.2d at 789.

         Generally,   however,   the  legislative   power    to
    investigate is not absolute, see, e.a., Gibson v. Florida
    Legislative Investisation Committee, 372 U.S. 539   (1962);
    State ex rel. Fatzer v. Anderson     299 P.2d 1078    (Kan.
    1956) ; Commonwealth  ex rel. Car&i   v. Brandamore.    327
    A.2d 1 (Pa. 1974). and it has been held to be lim ited to
    the obtaining of information on matters that fall within
    the proper    field   of legislative  action.     See.e.a.,
    Ferrantello v. State, 256 S.W.Zd 587 (Tex. Crim. App.
    1952); State ex rel. Fatzer v. Anderson, sunra; Common-
    wealth ex rel. Carcaci v. Brandamore, suora. The powers of
    an investigating committee, subject to limitations on the
    investigating power of the legislature, are in general   as
    broad as the resolution constituting it. Ex narte Wolters,
    144 S.W. 531 (Tex. Crim. App. 1912).

         It is a principle of constitutional   law that

           where there is a grant of power         in the
           Constitution to a department of Government,
           or to a constitutional or statutory officer,
           or tribunal, without defining the manner     or
           form in or by which it is to be exercised
           and carried into effect, the Legislature may
           legitimately prescribe    reasonable rules by
           which this may be done. And though         such
           power may not be taken away by the Legisla-
           ture, and should it fail or refuse to
           legislate so as to provide for the efficient
           use and exercise of the power, the depart-
           ment , officer, or tribunal to whom      it is
P
           delegated might possibly act in accordance
           with its own discretion,        yet when    the
           Legislature    has   made    reasonable     and
           appropriate   provisions    for    its   proper
           exercise, it should and will be exercised in
           conformity with such provisions.



                             p. 4249
Honorable Bob Bullock - Page 26 (JM-872)




Austin v. Gulf. Colorado. and Santa Fe Railroad Co., 45
Tex. 234, 265 (1876).    But it is in no way certain     that
article III, section 49a, fails to set forth the manner or
form by which you are required to perform your duty. See.
-,    Attorney   General Opinion WW-640     (1959) (holding
unconstitutional   in part the predecessor      statute    to
article 4348a, V.T.C.S., now codified as Government     Code,
§5403.013,   403.121-403.122).   This. office declared     in
Attorney General Opinion JM-666 (1987):

          In Attorney     General    Opinion   WW-640
       (1959),   Attorney    General    Will   Wilson
       considered the constitutionality    of a bill
       that, among other things,       attempted    to
       control the Comptroller's   estimates of the
       outstanding but undisbursed     appropriations
       to be expected at the end of a biennium.
       The opinion concluded, 'Insofar as this bill
       attempts to make estimates it is unconstitu-
       tional as a legislative     invasion of the
       duties of the comptroller.'

          The bill at issue there, with the offend-
       ing provision   'making estimates1    deleted,
       became article     4348a,   V.T.C.S.,    still
       extant. The remainder of the bill, in the
       form it was considered by Attorney     General
       Wilson, was characterized as an instruction
       to the     Comptroller  'to   use the     cash
       accounting    basis'   and   was   pronounced
       constitutional inasmuch as, according to the
       opinion:

          Reading Section 49a of Article III from
          its four corners, it is our opinion that
          this constitutional   provision    contem-
          plates that the Comptroller,    in making
          his estimate for certification of bills,
          use the cash accounting method.

          Thus, article 4348a. V.T.C.S.. is to be
       read not as a legislative mandate   defininq
       the Dower of the Comntroller under section
       49a with resoect to certifications or esti-
       mates made for the ourvose. but. rather. as
       a direction that he conform to the reciuire-
       ments of section 49a itself bv usina the
       cash accountins  method in arriving at his
       estimates  for   that nurnose.     (Emphasis
       added.)




                          p. 4250
Honorable Bob Bullock - Page 27 (JM-872)




     For purposes of this opinion, we accept the assertion
that the means and manner by which you must perform     the
budget   certification/revenue    estimate    certification
processes are set forth in the constitution with suffic-
ient specificity   such that the legislature    is without
authority, absent a constitutional    amendment, to direct
you in the manner   in which you carry out your constitu-
tional responsibilities.   It necessarily follows that the
legislature is without authority to inquire into the
manner and method by which you arrive at the budget
certification/revenue estimate figures, if the purpose for
which it seeks the information'is    to enact legislation.
But, article XVII, section 1, of the Texas Constitution
reposes in the legislature   the sole authority to propose
amendments to the constitution;    the issue then focuses
upon the authority of the legislature to inquire into the
manner and method by which you perform your constitutional
duties if such inquiry is done in aid of determining     the
need for any such amendments.

     We are not unmindful    of the importance    of this
question: indeed, it goes to the very heart of the nature
of the kind of government   that we have. Texas, unlike
many states; sets forth in its constitution the duties and
responsibilities of many of its state officers.     If we
permit the State Auditor and the Legislative Audit Commit-
tee, under the guise of performing "economy and efficiency
audits" or "effectiveness   audits" to inquire   into the
manner by which you perform the duties reposed in you by
the constitution of this state, we perforce would have to
permit such an E'audit@'inquiry into the manner in which
other constitutional officers perform their constitutional
duties. We would have to permit the Legislative      Audit
Committee and the State Auditor to inquire into the manner
by which the Governor exercises his appointment power and
his authority   to veto legislation. We would have to
permit the Legislative Audit Committee      and the State
Auditor to inquire into the manner in which the justices
of the Texas Supreme Court and the Texas Court of Criminal
Appeals administer their respective caseloads and deliber-
ate and arrive at their decisions.      We would have to
permit the Legislative Audit Committee      and the State
Auditor to inquire into the manner in which the Attorney
General advises and represents state agencies.

     We do not resolve here the issue as to the scope that
any such legislative inquiry could possess. We think that
your question raises the significant issue as to whether
the direction or guidance instructing any such investigat-
ing committee must be reasonably specific and whether  any



                         p. 4251
    Honorable Bob Bullock - Page 28 (JM-872)




    resolution   constituting   such investigation     must    be
    inveighed with sufficient   dignity to convey the extreme
    significance of what is undertaken.   We question whether a
    mere decision by the State Auditor     and the Legislative
    Audit Committee to so investigate,     under the guise of
    conducting   an "economy and efficiency     audit" or      an
    "effectiveness   audit,"  is sufficient.    We need      not,
    however, determine whether the State Auditor        and the
    Legislative Audit Committee may conduct an "economy and
    efficiency audit" or an "effectiveness     audit"   for the
    purpose of making an inquiry into the manner in which you
    perform  the    duties reposed    in you    by the      Texas
    Constitution.   We need note only that nothing       in the
    Government Code purports to confer such authority in the
    first place. Subsection    (e) of section 321.013 permits
    the Auditor to examine, for example, whether   subscription
    material exists, but not the use to which it is put.      Nor
    does it authorize an inquiry into discretionary    decision-
    making by you that is personal to you as a constitutional
    officer. We add that the Legislative Audit Committee,      of
    course, has no authority   to direct you in the manner     in
    which the budget certification/revenue    estimate   figures
    are derived.

         Finally, you ask whether the State Auditor has the
.   authority to direct an executive agency or officer to seek
    amendments to the laws or to evaluate the agency or
    officer on the basis of whether      such amendments   are
    sought. The answer to your question is clearly %o."

         It is well established that a state agency has only
    those powers expressly granted to it by statute          or
    necessarily implied from the statutory authority conferred
    or duties  imposed. Citv of Sherman V.      Public Utilitv
    Commission, 643 S.W.2d 681, 686 (Tex. 1983); Stauffer v.
    Citv of San Antonio,   344 S.W.Zd  158, 160   (Tex. 1961);
    Attornev General Oninions JM-452    (1986); JM-256  (1984) ;
    MW-532 (1982); V-5Oi (1948); 0-4260‘(1942): O-3536 (1941j.
    We need not address whether any statute constitutionally
    could confer such authority on the State Auditor,  because
    we conclude that no statute purports to do so. We have
    found no section of the Government     Code nor any other
    statute that purports  to confer such authority upon the
    State Auditor; accordingly, he has none.




                              p. 4252
Honorable Bob Bullock - Page 29 (374-872)




                       SUMMARY

          1. No provision   in chapter  321 of the
       Government Code, which sets forth the duties
       of the State Auditor and the Legislative
      ,.Audit Committee,    purports   to    confer
       authority  on   the committee    to   direct
       executive agencies  in the manner in which
       they execute or administer the laws.

          2. No provision   in chapter 321 of the
       Government Code purports to confer authority
       on the State Auditor to direct executive
       agencies in the manner in which they execute
       or administer the laws.

          3. Sections 51.005 and 61.005       of the
       Education Code are unconstitutional    insofar
       as they purport to confer authority    on the
       State Auditor to promulgate    rules   jointly
       with the College Coordinating Board.

          4. Legislative committees properly may
       gather information and conduct investiga-
       tions upon any matters about which legisla-
       tion may be enacted.

           5. Because    the   Texas     Constitution
       reposes in the legislature sole authority to
       propose constitutional amendments,    legisla-
       tive committees may gather information     and
       conduct investigations in aid of such auth-
       ority. However, it is questionable whether a
       mere decision by the Legislative         Audit
       Committee   and the State Auditor to         so
       investigate, under the guise of conducting
       an "economy and efficiency audit" or an
       "effectiveness   audit," is sufficient       to
       permit such a serious intrusion      into the
       performance   of   constitutionally    imposed
       duties as is here contemplated by an inquiry
       into the methods and means whereby         you
       derive the     budget   certification/revenue
       estimate  figures. This issue need not be
       decided, because nothing in the Government
       Code purports to confer the authority        to
       conduct such an inquiry in the first place.
       The Legislative Audit Committee may not
       direct the manner   in which the Comptroller
       derives such estimates.



                         p. 4253
Honorable Bob Bullock - Page 30 (JM-872)




          6. The State     Auditor   possesses
       authority  either to direct an executitz
       agency or officer to seek amendments to the
       laws or to evaluate the agency or officer on
       the basis of whether such amendments     are
       sought.




                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

IOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




                         p. 4254
