                       THEAITORNEWGENERAL
                                  OF     TEXAS


   WILL    WILSON
AlTGRNEy     GENERAL




                                    ,March'13,1959

    Honorable W. S Heatly, Chairman
    House Appropriations Committee
    Honorable W. S. Fly, Chairman
    Senate Finance Committee
    Austin, Texas
                                   Opinion No. W-573
                                   Re:    Whether a general appro-
                                          priations act may appro-
                                          priate or transfer moneys
                                          from "Special Purpose" Funds
                                          so dedicated by the Constitu-
                                          tion or by statutes, to other
                                          state departments and to the
                                          General Revenue Fund in order
                                          to finance auxiliary services
                                          directly benefiting such
                                         L"Special Purposes".
    Dear Messrs. Heatly and Fly:
               Your request for an opinion reads .in part as follows:
                     "Briefly, that question is whether a
               general appropriations act may appropriate
               or transfer moneys from 'Special Purpose'
               Funds so dedicated by the Constitution or
               by statutes, to other state departments and
               to the General Revenue Fund in order to fi-
               nance auxiliary services directly benefiting
               such 'Special Purposes'.
                     "Our question can be made more explicit
               by citing specific examples.
                     "1. In Article III at page 5 of H.B.        ~,,
               216 and S.B. 42 referred.$boour Committees,
               under item 16 there are suggested certain         '
               appropriations from special funds therein
Honorable W. S. Heatly and Honorable W. S. Fly, page 2. (WW-573)


       specified, to finance legal counsel and serv-
       ices by the Attorney General's Office. As
       you know, these suggested appropriations
       are fully supported by administrative agree-
       ments. However, are the appropriations
       proposed under item 16 fully valid under
       the pertinent statutes; or do they re-
       present, in effect, an attempt to amend
       general statutes by an appropriations act
       provision? In this connection, Attorney
       General's Opinion No. V-1304, dated Octo-
       ber 8, 1951, may be pertinent.
             "2. In Article III at page 65 of the
       identical bills before our Committees,
       item 23 proposes to transfer $150,000 a
       year from the State Highway Fund to the
       General Revenue Fund.   The stated purpose
       of the transfer is to reimburse the Gener-
       al Revenue Fund for services rendered the
       Highway Department and the state highway
       program by the Board of Control through
       Its purchasing procedures; by the Comptrol-
       ler of Public Accounts in its accounting
       for receipts and in related services to the
       Highway Fund and program; by the Treasurer
       in its custody of highway funds, Its collec-
       tion and crediting of depository interest
       due the Highway Fund; by the Attorney Gener-
       al's Office in its legal services, other than
       on right-of-way acquisition, rendered to the
       Highway Department and its program.
             "Is the contemplated transfer consonant
       with Article VIII, Section 7, of the Consti-
       tution which dedicates motor fuel tax receipts
       to the construction and maintenance of high-
       ways? In this connection, Attorney General's
       Opinion addressed to Dr. H. Y. Benedict, then
       president of the University of Texas, in Rook
       374 at page 727, may be pertinent.
             “3. Although statutory rather than con-
       stitutional provisions appear to be Involved,
       the pending bill proposes 'service transfers'
       for reasons identical to those in example 2
       above, in the case of certain professional
       and occupational licensing funds. Such in-
       stances appear In the bill, however; only
       when the applicable statutes make no provision
       for the transfer of stipulated amounts or bal-
Honorable   W.S.Heatly & Honorable W.S.Fly, page 3. (WI?-573)


        antes, from such special funds to the General
        Revenue Fund.
             'Instances of such proposed 'service
        transfers' appear in Article III at page
        26, item 5, for the Game and Fish Commis-
        sion; page 80, item 9, for the Board of
        Registration of Professional Engineers;
        page 102, item 8, for the Board of Dental
        Examiners; page 98, Item a for the Board
        of Barber Examiners; page 99, item 7 for
        the Board of Basic Science Examiners;
        page 105, item 6, Board of Medical Examin-
        ers.
             "Should you find affirmatively on the
        basic question, any suggestion you might
        make for improving the language of such
        provisions will be appreciated by our Com-
        mittee."
       Item 16 of the appropriation to the Attorney Gen-
eral's Office creates a special,fund known as the Attorney
General's operating fund into which the Comptroller is au-
thorized to transfer the funds appropriated by Item 16,
namely the Liquor Act Enforcement Fund, the Medical Regis-
tration Fund, the Special Game and Fish Fund, the Veterans
Land Board special fund, the Insurance Agents License Fund
No. 85, and the Department of Corrections fee account, the
particular language being as follows:
             "Cut of Attorney General's Operating Fund:
            "The Comptroller is hereby authorized
      and directed to transfer the funds herein-
      after appropriated to the Attorney General's
      Office into a special fund in the State
      Treasury to be known as the Attorney Gener-
      al's Operating Fund, and all transfers, de-
      posits~and balances in the Attorney General's
      Operating Fund are hereby appropriated for
      the necessary salaries, wages, traveling and
      operating expenses, including professional
      services involved in performing the legal re-
      sponslbilities of the Attorney General's Of-
      flee. No salaries paid from this fund shall _:.';
      exceed those authorized for similar wor~kin
      the Attorney General's Office. Where there
      is not a similar position in the Attorney Gen-
      eral's Office, then it shall be within the dis-
      cretion of the Attorney General as to the sal-
                                                                .


Honorable W.S.Heatly & Honorable W.S.Fly, page 4, (W-573)

       ary that shall be paid the individual who
       performs such duties, not to exceed the sal-
       aries in Item 3 (Class IV Attorneys]."
        Item 23 of the appropriation to the Texas Highway Be-
partment makes an appropriation as follows:
              "In addition~:tothe appropriations
        and purposes set forth above, there is also
        appropriated out of the State Highway Fund
        for each year of the biennium beginning Sep-
        tember 1, 1959, sufficient moneys to compen-
        sate the General Revenue Fund for services
        rendered to the Highway Department by other
        administrative departments financed out of
        that fund and the Comptroller shall transfer
        to the General Revenue Fund the following
        fixed amounts."
        Item 9 of the appropriation to the Board for Regis-
tration for Professional Engineers provides as follows:
             "For the purpose of reimbursing the
       General Revenue Fund for services rendered
       by Administrative and service departments
       financed from that fund, there Is also ap-
       propriated and the Comptroller shall transfer
       from the Professional Engineers' Fund (N0.56)
       to the General Revenue Fund during each year
       of the biennium beginning September 1, 1959,
       the sum of . . .'
        Item 8 of the appropriation to the Board of Barber
Examiners provides as follows:
             "For the purpose of reimbursing the
       Qeneral Revenue Fund for services rendered
       by administrative and service departments
       financed from that fund, there is appro-
       priated and the Comptroller shall transfer
       from the Barber Examiners Fund (No. 40) to
       the General Revenue Fund during each year
       of the biennium beginning September 1, 1959,
       the sum of . . ."
        Other service transfers contain similar language.
        Therefore, your request is properly divided into two
categories:
            Item 16 of the appropriation to the Attorney
General %eating the "Attorney General's operating fund'.
       b.   The "service transfers".
Honorable W. S. Heatly & Honorable W.S.Fly, page 5 (WW-573)
                    .

            Item 16 of the appropriation to the Attorney Gen-
eral. Az'regards to Item 16 of the appropriation to the
Attorney General's Office, It Is our opinion that the validity
of such appropriation is governed by the principles of law
announced In Attorney General's Opinions WW-544 (1959) and
m-557 (1959)* In WW-544 it is stated that the Legislature
may provide the purposes for which a statutory special fund
may be expended and that It is the duty of the Comptroller
to keep special statutory funds in a separate account from all
other funds to be expended only for those purposes authorized
by the Legislature. In Attorney General's Opinion WW-557, It
was held that the moneys appropriated from a special statutory
fund, to-wit: "The Medical Registration Fund may be expended
for any travel by any employee of the office of the Attorney
General when traveling on official business in the enforcement
of the Medical Practice Act."
        The Legislature cannot by rider in the appropriation
bill amend a,general law. Attorney General's Opinion V-1304
(1951). Therefore, the Legislature cannot transfer special
funds to the General Revenue Fund by an appropriation bill with- .!; : .:
out first amending the general law creating the speolal fund.
The Legislature does have the power, however, to transfer
statutory special funds to the General Revenue Fund by a gen-
eral law without violating the provision of Section 7 of
Article VIII of the Constitution of Texas, relating to the
diversion of special funds. Gulf Insurance Company v. James,
143 Tex. 424, 18 S.W.2d 966 (1945); Attorney General's Opin-
ion WW-544 (1959 .
        Item 16 to the appropriations to the Attorney General
appropriates money for the purposes authorized by the general
law and it keeps such special funds in a separate account to be
expended only for the purposes authorized by the Legislature
by general law. Since the appropriation is neither contrary
to any constitutional provision nor to the general law, it is
our opinion that such item of the appropriation bill is con-
stitutional.
        b. 'Service transfers". As noted above, the Legisla-
ture cannot transfer moneys set aside by general law for a
specific statutory purpose to the general fund by the general
appropriation bill without first amending the general law.
        Transfer of constitutional funds could only be accom-
plished by a constitutional amendment In view of the provi-
sions of Section 7 of Article VIII of the Constitution of Texas.
Carroll v. Williams, 109 Tex. 255, 202 S.W. 504 (1918).
Honorable W. S. Heatly & Honorable W.   S. Fly, page 6. (WW-$%lj


        It is obvious from the wording of the items designated
in your request as "service transfers that the Legislature is
not attempting to divert the purpose for which the funds were
created to the general revenue fund. On the contrary, It is
attempting to cause the expenses incurred by various agencies
of the executive department of government in the enforcement
of the Acts creating the special funds, to be paid from the
funds created for the purpose of carrying out such expenses
rather than the general revenue fund. The wording of these
items, however, makes a lump sum transfer which will result
in the special funds being expended for general purposes rather
than being expended for the specific purpose for which they
were created. Therefore, such items as worded would be in-
valid since they are contrary to the general law.
        In response to the last paragraph of your request
relative to suggestions this office might make, you are
advised that the Legislature may carry out its intended pur-
pose in one of two alternative methods.
        First, the Legislature can amend the general law creat-
ing each special fund so as to authorize a transfer of desig-
nated amounts to the general fund, as determined by the Legis-
lature.
        Second, the Legislature may provide in the General
Appropriation Bill a method for the reimbursement to the Cen-
era1 Revenue Fund by establishing the machinery for a factual
determination of the value of the services rendered by admin-
istrative and service departments, or the actual cost of the ~' ,'
services rendered. This may be accomplished by designating
the Legislative Budget Board or the Governor or some other
agency designated by the Legislature, and, after a factual
determination, the authority to execute the proper certifica-
tion of the value of the services rendered. The Comptroller
should then be given authority to transfer from the Special
Fund to the General Revenue Fund upon such a certificate.
                            SUMMARY
              The Legislature cannot divert the pur-
              pose for which funds are created by
              items or riders in the General Appro-
              priation Bill without first amending
              the general law creating the special
              fund. The Legislature may provide
              in the General Appropriation Bill for
              the reimbursement to the General
              Revenue Fund for services rendered by
Honorable W. S. Heatly & Honorable W.S; Fly, page 7. (WW-573)


               the administrative and service depart-
               ments financed from the General Revenue
               Fund,provided that a method is prescribed
               therein for making a factu~l',determ~nation
               of the value,of the services rendered by
               administrative a,nd service departments,
               or the actual cost of the services rendered
               by the administrative and service depart-
               ments financed from the General Revenue
               Fund.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas




JR:rm:mfh:zt                          Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Jack Ucodman
Riley Eugene Fletcher
Robert Lewis
REVIEWED FOR THE ATTORNEY QENEFlAL
BY: W. V. Geppert
