                                ATTORNEY            GENERAL OF TEXAS
                                             GREG       ABBOTT




                                                March 3 1,2003



The Honorable Stephen E. Ogden                           Opinion No. GA-0054
Chair, Senate Infrastructure Development
  and Security Committee                                 Re: Whether, “in the case of emergency and
Texas State Senate                                       imperative public necessity and with a four-fifths
P.O. Box 12068                                           vote of the total membership of each House,” the
Austin, Texas 7871 I-2068                                legislature may, pursuant to article III, section 49a
                                                         of the Texas Constitution, authorize expenditures
                                                         in excess of the amount of cash and anticipated
                                                         revenues certified by the Comptroller of Public
                                                         Accounts (RQ-0025-GA)

Dear Senator Ogden:

        You ask us to construe a portion of article III, section 49a of the Texas Constitution.
Specifically, you ask whether that provision authorizes the legislature “to make appropriations which
exceed the amount of cash and anticipated revenue certified by the Comptroller of Public Accounts
in the case of emergency or public necessity and with a four-fifths vote of the total membership of
each house, notwithstanding any other language in the same constitutional provision.“’ In addition,
you ask whether, if article III, section 49a authorizes such appropriations, “the authority to determine
an emergency or public necessity belongs to the Texas Legislature.” Request Letter, supra note 1.

         I. Background

         Section 49 of article III of the Texas Constitution declares that “[n]o debt shall be created by
or on behalf of the State, except: (1) to supply casual deficiencies of revenue, not to exceed in the
aggregate at any one time two hundred thousand dollars; (2) to repel invasion, suppress insurrection,
or defend the State in war; (3) as otherwise authorized by this constitution; or (4) as authorized by
Subsections (b) through (f) of this section.” TEX. CONST.art. III, 6 49(a). Subsections (b) through
(f) describe a mechanism by which the legislature may, by a two-thirds vote of each house, call an
election and submit to the voters a proposition that, if approved, would authorize the legislature to
create debt. Id. 8 49(b)-(f).




         ‘Letter fi-om Honorable Stephen E. Ogden, Chair, Senate Infrastructure Development & Security Committee,
to Honorable Greg Abbott, Texas Attorney General (Mar. 12, 2003) (on file with Opinion Committee) [hereinafter
Request Letter].
The Honorable    Stephen E. Ogden - Page 2          (GA-0054)




         In order to ensure that the legislature does not create debt in contravention of article III,
section 49, a constitutional amendment was adopted by the voters in 1942 requiring the Comptroller
“in advance of each Regular Session of the Legislature to prepare and submit to the Governor and
to the Legislature upon its convening a statement under oath showing fully the financial condition
of the State Treasury at the close of the last fiscal period and an estimate of the probable receipts and
disbursements for the then current fiscal year.” Id. 8 49a(a). The amendment further directed that
such statement contain “an itemized estimate of the anticipated revenue based on the laws then in
effect that will be received by and for the State from all sources showing the fund accounts to be
credited during the succeeding biennium and said statement shall contain such other information as
may be required by law.” Id. Moreover, supplemental statements must be “submitted at any Special
Session of the Legislature and at such other times as may be necessary to show probable changes.”
Id.

        The 1942 amendment      further provided:

                         From and after January 1,1945, save in the case of emergency
                and imperative public necessity and with a four-fifths vote of the total
                membership of each House, no appropriation in excess of the cash
                and anticipated revenue of the funds from which such appropriation
                is to be made shall be valid. From and after January 1, 1945, no bill
                containing an appropriation shall be considered as passed or be sent
                to the Governor for consideration until and unless the Comptroller of
                Public Accounts endorses his certificate thereon showing that the
                amount appropriated is within the amount estimated to be available
                in the affected funds. When the Comptroller finds an appropriation
                bill exceeds the estimated revenue he shall endorse such finding
                thereon and return to the House in which same originated.         Such
                information shall be immediately made known to both the House of
                Representatives and the Senate and the necessary steps shall be taken
                to bring such appropriation to within the revenue, either by providing
                additional revenue or reducing the appropriation.

See Tex. H.R.J. Res. 1, 47th Leg., R.S., 1941 Tex. Gen. Laws 1557-58 (original version of
constitutional amendment).    Section 49a began life as House Joint Resolution 1, and was finally
enacted by the legislature on May 15,194l. It was adopted by the voters at the general election held
on November 3,1942. “Section 49a of Article III is what is popularly known as the ‘pay as you go’
amendment to the Constitution of Texas . . . . It is generally understood . . . that the purpose of this
amendment was to keep in approximate balance the anticipated annual income and expenditures of
the State of Texas, a very wholesome purpose. Or stated in another way, the evil sought to be
remedied was the appropriation and disbursement of moneys in excess of anticipated or actual
income.” Tex. Att’y Gen. Op. No. O-6738A (1946) at 5.

         Attorney General Opinion 0-6738A involved a request regarding the constitutionality, under
article III, section 49a, of a special appropriation bill for the City-County Tubercular Hospital at
The Honorable   Stephen E. Ogden - Page 3         (GA-0054)




Laredo. See id. at 2. The requestor argued that the appropriation bill for the hospital had been
passed with “four-fifths vote of the House, ‘in which the bill may be pending,“’ the standard required
for enacting emergency legislation under article III, section 32. Id. at 6; TEX. CONST.art. III, 8 32.
Attorney General Opinion O-6738A noted that “the bill was passed, containing the findings of
imperative public necessity, with a majority of four-fifths of those present in the House of
Representatives.    Since the vote in the Senate was not recorded, there is no way of determining at
this time just what number constituted the majority which approved the bill.” Tex. Att’y Gen. Op.
No. O-6738A (1946) at 3. The opinion concluded that, although the appropriation bill may well
have satisfied the terms of article III, section 32, it did not meet the more stringent requirements of
article III, section 49a. “Section 49a requires more than a mere finding of an emergency and
imperative public necessity; it provides precisely how the vote shall be taken.” Id. at 5. “The
exception contained in Section 49a provides how the finding shall have been made, namely, by a
four-fifths vote of the total membership of each House. . . . [C]ompliance with the requirements of
Section 32 does not constitute compliance with Section 49a.” Id. at 6. See also Tex. Att’y Gen. Op.
Nos. O-6738 (1945), O-6497 (1945), O-5135 (1943).

        The year after the issuance of Attorney General Opinion O-6738A (1946), this office
addressed a similar question regarding the procedural requirements for enacting a bill under the
terms of article III, section 49a:

                        An appropriation bill passes both Houses with a four-fifths
                vote of the total membership of each House.             The amount
                appropriated is in excess of the cash and anticipated revenue of the
                funds from which such appropriation is made. The bill recites that an
                emergency and imperative public necessity (stating what it is)
                requires that this appropriation be made notwithstanding the fact that
                it exceeds the estimated revenue. This bill would be considered
                passed, and if not vetoed, would become effective.

Tex. Att’y Gen. Op. No. V-208 (1947) at 7. The opinion then considered the converse situation:

                        The same appropriation bill containing the emergency and
                imperative public necessity clause (as outlined above), is passed by
                the Legislature by a vote of less than four-fifths of the total
                membership of each house, or it passes by a four-fifth vote of the total
                membership of each house but does not contain the emergency and
                imperative public necessity clause (as outlined above). . . . [T]he
                Comptroller would find that the appropriation bill exceeds the
                estimated revenue and would endorse such finding on the bill and
                return it to the House in which it originated and immediately make
                such information known to both Houses. . . . [S]uch bill would not
                be considered as passed. . . . The Legislature would then have three
                methods by which it could legally pass such appropriation bill and
                make it effective, that is, (1) the bill could be amended so as to
The Honorable Stephen E. Ogden - Page 4             (GA-0054)




                include the emergency and imperative public necessity clause (as
                outlined above), if the bill as originally passed did not contain same,
                and then pass same by a four-fifths vote of each House, or (2) the
                Legislature could amend the bill by reducing the appropriation so the
                amount would not be in excess of the cash and anticipated revenue of
                the funds from which the appropriation is made, or (3) the Legislature
                could pass an additional revenue act that would increase the
                anticipated revenue to such extent that the amount so appropriated in
                the bill would not exceed the cash and anticipated revenue of the
                funds from which such appropriation is made.

Id. at 7-8. Together, Attorney General Opinions V-208 and O-6738A conclude that the constitution
requires that the legislature make the finding of “emergency and imperative public necessity,” that
such finding must be included in the appropriation bill, and that the bill, in order to become effective,
must pass each house by a four-fifths vote of the total membership of that house, and not be vetoed
by the Governor.

        II. Analysis

         Attorney General Opinions V-208 (1947) and 0-6738A (1946) were written in the first few
years following the adoption of article III, section 49a. The construction placed upon statutes and
constitutional amendments soon after their enactment or adoption is entitled to substantial weight.
Am. Indem. Co. v. City ofAustin, 246 S.W. 1019,1023 (Tex. 1922) (“contemporaneous exposition
of a constitutional provision is of substantial value in constitutional interpretation”); see also Taylor
v. Firemen ‘s & Policemen ‘s Civil Serv. Comm ‘n, 616 S.W.2d 187,189 (Tex. 198 1) (in the absence
of specific amendment, statute should be given meaning it had when enacted); Neubert v. Chicago,
R.I. & G. Ry. Co., 296 S.W. 1090, 1094 (Tex. 1927) (“It is an elementary rule that the
contemporaneous      and practical construction of a statute by those whose duty it is to carry it into
effect is entitled to great respect in the courts.“). Although a contemporaneous construction is not
absolutely controlling, it is entitled to substantial weight. See Neubert, 296 S.W. at 1094.

       In Gulp Colorado & Santa Fe Railway Co. v. City ofDallas, 16 S.W.2d 292 (Tex. Comm’n
App. 1929, judgm’t adopted), the court considered a constitutional amendment which, the court
noted, was “not free from ambiguity.” Id. at 293. In construing the provision, the court declared:

                         In addition to the legislative interpretation that the provision
                of the Constitution in question did not fix the situs of rolling stock for
                municipal taxation, where the same was actually located, we find that
                the Attorney General’s department, charged with the duty of advising
                taxing authorities throughout the state, has for a long period of years
                given the same construction to such constitutional provision. l%is
                long-continued departmental construction is also entitled to be given
                weight in determining the true intent and meaning thereof:
The Honorable   Stephen E. Ogden - Page 5         (GA-0054)




Id. at 294 (emphasis added). As we have indicated, in the years immediately following the adoption
of article III, section 49a, this office issued several opinions construing that amendment. See Tex.
Att’y Gen. Op. Nos. V-208 (1947), O-6738A (1946), O-6738 (1945), O-6497 (1945), O-5135
(1943). The two most relevant for our purposes here, Attorney General Opinions V-208 (1947) and
0-6738A (1946), categorically concluded that an appropriations bill that passes the legislature with
a four-fifths vote of the total membership of each house and that includes a clause reciting the
existence of an “emergency and imperative public necessity’ comports with the requirements of
article III, section 49a.

          Furthermore, article III, section 49a was slightly amended by the voters in 1999 as part of an
amendment to eliminate duplicative, obsolete, and archaic language. The amendment was proposed
by the adoption of House Joint Resolution 62. See Tex. H.R.J. Res. 62,76th Leg., R.S., 8 13,1999
Tex. Gen. Laws 6611,6613-14.          The readopted amendment retained the former first paragraph of
section 49a as subsection (a). It reenacted the former second paragraph and renumbered it as
subsection (b). The only change made to the new subsection (b) was to remove the two references
to “[ flrom and after January 1,1945 .” Id. at 66 13. Finally, the readopted amendment eliminated the
former third paragraph, not relevant to our purposes here, which had dealt with “the issuance, sale,
and retirement of serial bonds.” Id. at 6614.

         It must be presumed that the voters who readopted article III, section 49a in 1999 were aware
of the long-standing administrative construction placed on the former version of that provision. As
the Texas Supreme Court said in Shepherd v. San Jacinto Junior College District, 363 S.W.2d 742
(Tex. 1962):

                General public acceptance of and acquiescence             in a certain
                construction of a constitution extending over a long period of time,
                particularly when occasions for the questioning of such construction
                have arisen repeatedly, gives rise to a doctrine that affords to such
                acceptance a persuasiveness akin to precedent. . . . While this public
                acquiescence could not result in a precedent in the judicial sense, yet,
                this general acceptance does carry with it a persuasiveness           of
                compelling force.

Id. at 752-53. In the situation before us, this “general public acceptance and acquiescence” about
the conclusions of Attorney General Opinions V-208 (1947) and O-6738A (1946) was expressly
ratified by the voters’ readoption of article III, section 49a in 1999.

         We conclude that article III, section 49a of the Texas Constitution authorizes the legislature
“to make appropriations which exceed the amount of cash and anticipated revenue certified by the
Comptroller of Public Accounts in the case of emergency or public necessity and with a four-fifths
vote of the total membership of each house, notwithstanding          any other language in the same
constitutional provision.” Request Letter, supra note 1. Furthermore, the legislature, in adopting
such appropriation, has both the authority and the duty to determine in such bill that an “emergency
or imperative public necessity” exists.
The Honorable   Stephen E. Ogden - Page 6         (GA-0054)




                                        SUMMARY

                        In order to appropriate funds that exceed the amount of cash
                and anticipated revenue certified by the Comptroller of Public
                Accounts, an appropriation bill must state the legislature’s finding
                that an “emergency or imperative public necessity’ exists, and the bill
                must then be enacted by a four-fifths vote of the full membership of
                each house of the legislature.

                                               Yours very truly,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
