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                                         OFI?ICE     &F
                             TEE &JTORXEY               G%~ER&
                                       Ausm.       TEXAS
PRICE       DANIEL
ATTO-        GENellAL                         13, 1.k
                                        ‘&larch

            Bon. Claud Gllmer,~ggmap-       *
            Committee on A~roprletlons
            HOIl~~~_._ .___,~+9tlves-~"
            Austin, Te n8      Oplnlon No. v-84
                                     Re: Constitutionalityof House
                                           Bill No. 396,50th Leglsla-
                                           ture, Incldenttel
                                                           Expenses
            Fear sir:                  . . Sor l4embers.
                       Your request for en oplnlod by this depsrtment
             upon the above
                          . titled aubjeot matter Is aa followa:
                       "Encloaeb you will Slnd House Bill
                  B.o.3% whloh has been Introducedand
                  Is now before the.ApproprlatlonCommit-         '.
                  tee of the Hq!ye. .;        .
                                                      .
                       'Thla bill Is en appropriation
                  blll for !lncidentalexpenses1 only for
                  membera i# the regular session. The Com-
                  mittee dealres to'know what In your opln-
                  'ioncan be included aa incidentalexpenses. ..
                  At the present time certain     expenses lncl-
                  dent $0 the work of.each member la paid
                  from the oontingent expense account, such
                  as postage, stationery,and offi'iclal    tele-
                  phone calls.                  .
                         "would the attached bill be oonstltu-'
                    tional If It sets a ms+num expense allow-
                    anpe to.each member w$th?ut regard to the
                    nature and amount of the expense.".
                             House Bill Ho. 3% ea subiltted to tg3Is ai
             follows:
             "H.B. Bo. 396                                            BY:
        ,                                 ABISJ:
                                      TO BE RNTITLSD
                        '>
Hon. Claud Gllmer, Page 2 -No. V-84


         “AH   ACT amMng an appropriationof the
                   sua.of Three Hundred Thousand
                   Dollars ()3OO;COO),or ao much
                   thereof es may be necessary,
                   out of any funds la the State
                   Treasury not otherwiseeppro-
                   prlated, to pay incidentalex-
                   penses OS the membera of the
                  ~RegularSession of the Fiftieth
                   Legislature,such expenses not
                   to exceed Ten Dollars ($10.00)
                   per day per member: provldlng
                   ?or ce$tificaties to the COUID-
                   troller; making reoords avail-
                   able to the public; and declaring
                   an emergency.
"BE IT RNA&D    BY %T&tiISLATRRR OF TRR STATE OF TEXAS:
         "Section 1.' There'la hereby appr.o-
    prlated out of any funds in the State
    Treasury not otherwiseappropriated,the
    sum of Three Hundred Thousarrd-Dollars
    ($300,000),'~0$sb much thereof aa may be
    necesssry,to pay incidentalexpenses of
    the members of the Regular Session of the
    Fiftieth Legislature such expensesnot to
    exceed Ten Dollara ($10.00)per day per
    member,      .    '.
         "Section2.. The certlfl~ateof the
    Secretary of the Senate, approved by the
    President of $he'Senete,or the certlfl-
    cate of the Chief Clerk of the House of
    Repr,esentatlves,approved by the Speaker
    thereof, Shall be sufficient evidence to
    the Comptroller upon whloh to audit the
    claims for expenses of the Piembersof the
    Regular ?eaalon of the Fiftieth Legisle-
    ture. ...
         "Section3. Providing,however, that -
    a record of allmoneys appropriatedin this
    ,Blllshall be msde svallable for public .Ln-
    spectlon the same as any other publio re-
    cords in this State.
          "Section 4. The fact that the Regular
     Session of the Fiftieth Leglrleture of the
                                                                AP-’
                                                                -- . ..‘,


Hon. Claud Gllmer, Page 3'- Ro. v-84    .;     :


     State of Texas la now la session, and pub-
      lic policy requires that the,appropriations
     made v thla Act shall be m&e immediately
     evallable, cpeatee an emergency and an.lm-
     Reratlve public necessity that  the Constl-
 t   tutlonal Rule requiring bills to be read
     'on three several daya in esch Howe be sus-
     pended; and said Ruld la hereby suspended,
c    and that this Act shall take etfect end be
     in force Srom and after its passage, and
     it 1s so enacted.'
         This bill is an appropriationbill for lncl-       .
dental'expenseonly for lpembersof the Regular Session.
          Section 44 or Article III of the Conitltutlon
is 98 followst
          "The Legislature shall provide by law
     for the cotip&nsatlonof all officers, aer'
     vanes, agents.and pu@llc contractors,not
     pr&&uJ   for in this Constitution, but shall
     not grant extra compensation to~any officer,
     agent, ae?ant, or public contreotors,  aster
     s@ch public ,servlCeahall'hsve been performed
     or eontract entered into, for the performance
     of the same; nor grant, by appropriationor
     otherwise,any amount of money out of the
     Treasury of the State, to any individual, on
     a claim, real or pretended, when the asme shsll
     nbt havibeen provld@d.forby pre-existing law;
     nor employ anyone in the name of the State, un-
     less authorleed by pre-ex&?tlng law."
          The neceaelty for a pre-exit&g law to authorize
the appropriationof any monl68 whatsoever froipthe State
Treasury is.fundamentel. .Thls eaaentla1 pre-existing law to
authorl~zethe approprletlon in the present $natance consists
in the'Constltutlonitself, creating t&e Legislature,and
requiring it to function a8 a law-wklng brench of the Govern-
ment. This by neceisery lmpllcatlonauthorizes the payment
from the Treasury.ofall expenses, whether called "contln-
gent? or "IncIdental"or by whatsoever name, that are neceai
sbry to etibie the Legislature to perform ltficonstitutions1
duties. What perticulsr 6xpenses'comewithin the amblt of
that implied power cannot be stated in words ~of finality.
It undoubtedlywould lticludesuch things as poetage, statlon-
ery,~pages, printlag, and the like necessltles~of the Legls-
lature. This haa been the uniformly accepted constructionof
434
       Hon. Claud Gilmer, Page 4 - Ro. V-84


       the Conatltutlonby all dep3rtmentsconcerned since the
       State's exlstenoe.
                 We under&and what is cixnmonlyknown as the ap-
       propriationfor "contingentexpenses" Is designed to cove]
       and is amply sufficientto cover all such items as above
       indicated. Whether or not a particular item of expense 1:
       Properly payable out .of such contingentappropriationla
       an lndlvldualinquiry 88 to each such ols.lm. Those that
       are properly classed aa such incidentalor contingentex-
       penses are paMand those that sre not tb be so classed
       are not psld.
                   'Thewtter of per diem to the members of the
        Leglslst~ la, of course, conolusivel determinedby the
        Constitutionitself (Art. III, Sec. 249.   Likewise, the
        item of trsvel expense la conoluslvelyfixed by the same
        Section. Of course House Bill 396 does not contemplate
        supplementingmembers per diem, or travel allowanceabove
        that Of Section 24, or any contingent expellses,or interia
        expense incident to Committee work or.the like. By the
      ' abov,e process of ellmlnatlon,it would appear that House
       Bill 396 does not.contemplatethe psyment of any claim of
        any member, for any sum, for any expense, that is author-
        ized by any pre-existinglaw express ol;implied. We are,
        therefore, of the opinion that the Bill, If enaoted into
        law, would be unconstitutional.under Section 44 of Artlclt
        III of the Constitution.
                 In reply to your hypotheticalquestion is to
       whether.or not +blil which sets a maximum expense sllow-
       ante to each member without regard to the-natureand s-
.
       mount of expense, we beg to advise such a bill would be
       unconstitutionalas a gratuity to the ~lndlvldual members
       aocording as the items claimed constitutedpersonal busl-
       ness of the respectivemembers. Moreover, tkere would be
       no pre-existinglaw, nor could there be; for.such a'gratu.
       ity as to the personal expense Items.
                              SUMMARY
              '. (1) House Bill 396 of the 50th Legls-
            lsture 1s invalid and If passed would not
           authorlee the payment of monies from the
           State.Treasury,for t.hewant of a pre-
           .exlstlnglaw therefor. .(Constltutlon,Art.
            III, Sec. 44).
                           .!,..
                                                       I
                               -.

           Hon. Claud Gllmer, Page 5 - no. v-84


                     (2) ~A11expenses necessary to the func-
                tlonlng of the Legislaturewy be lawfully
                pald,from the State Treasury under the neq-
                esaary lmpllcatlonof the Constitutionlt-
                aelf, whether such expenses be denominated
                "incidental!'or "contingent".
                     (3) A bill appropriatinga wxlmum   ex-
               pens6 ellowance to eac.hmember of the Legia-
               latue, without regard to the nature and the
               amount of the expenses,would be invalid be-
               cause of the absence of 'pre-existinglaw",
               (Constitution,Art. III, Sec. 44), and llke-
               wise because of a violation of the Constltu-
               tlon as 8 gratuity to the individual members
               accordlng~asthe claims were for personal
               buslnesa of the respective members. (Constl-
               tution, Art. III, Sec. 44).
     - .
                                    Yours very truly
                               ATTORNEXGRliWfALOFTRXAS

                               BY



    .' OS/acm/lh




                               Approved:OplnlonCommittee
                               02, Chairman




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