                THE           ATTORNEY    GENERAL
                                 OF ‘TEXAS
                                AUSITIN,       TKKAs         78711

                                      !

                                    May 20,        1975



The Honorable   Chet Brooks                                       Opinion   No.   H-611
chairman
Joint Committee   on Prison Reform                                Re: Use of certain line item
Senate Chamber                                                    appropriations    by the Texas
Aurtin. Texas   78711                                             Department     of Corrections.

Dear Senator Brooks:

       You have requested  our opinion regarding the use of certain                           line
item appropriations by the Texas Department    of Corrections.

         Your firat question aeks what constraints         a specific line item
appropriation    for a specific   construction   project plsces on the Department
of Corrections,     and whether expenditures      on other construction    projects
are permissible.       A line item appropriation      must be expended only for
the purpose designated therein,        subject to any riders applicable to the
appropriationfor     the particular  agency and subject further to any relevant
general provisions      in the Appropriations    Act.   Attorney General Letter
Advisory    No. 2 (1973); Attorney General Opinions H-444(1974);          M-999
(1971); O-4769    (1942).   As to appropriations    for specific construction
projects   of the Department,     the Act contains the following provisions
in Article   III;Acts   1973,       63rd   Leg.,     ch.   659,    p. 1948.

                  The amounts indicated as ‘Building Appropriations’
                  hereinabove  areappropriated     subject to construction
                  and completion  of said projects   by the use of prison
                  labor insofar as possible.

                        . .   * .


                  Any unexpended balances remaining in projects                           under
                  the respective items for Building Appropriations                         may,




                                                      p.   2705
The Honorable’ Chet Brooks      page 2    (H-611)




                with the approval of the Board of Corrections,
                be transferred   and used for the purposes of
                completing   construction   of other projects   enumerated
                in the same item; provided,      however,   that copies of
                such approvals    and copies of requests for Comptroller’s
                action on such transfers    shall be filed with the Governor
                and the Legislative    Budget Board.

         Thus, the unexpended balances remaining from appropriations,
authorized for specific construction      projects   may be used for completing
construction  of other projects,    provided that such projects are enumerated
in the same item: provided       that the approval of the Board of Corrections
is obtained; and provided   that copies of such approvals and copies of
requests for Comptroller’s     action on the transfer     of such funds are filed
with the Governor and with the Legislative         Budget Board.    Unless it has
complied with these requirements,        the Department     may not use the
unexpended balances appropriated       for building construction    for comple-
tion of any other project.

         Your second question asks about the procedure   for authorizing
construction  of “other” projects as contemplated  by the rider,  and
whether a “report” approved by the Board of Corrections     after a
construction  project is substantially complete can adequately serve as
evidence of the “approval”   the rider requires.

         The rider does not require that the approval of the Board of
Corrections    be evidenced by a particular writing,  but that “copies of
such approvals ” be filed with the Governor and the Legislative     Budget
Board.    As couched in general appropriation   acts prior to 1973, the
rider   required that expenditures  on “other” projects be approved by
the Governor   rather than the Board of Corrections  and that copies of
the Governor’s   approval were to be filed with the Legislative Budget
Board; but in Attorney General Opinion M-1199 (1972), with reference
to that rider, it was said on page 5:

                That portion of the rider requiring the Governor’s
                approval is invalid: such approval cannot be required,
                but that portion requiring filing of information   with
                Budget Board is valid.    M-1141 and V-1254.    The agency
                Board must vote the transfer of funds. (Emphasis      added).

                                         p.   2706
The Honorable   Chet Brooks      page 3        (H-611)




        The purpose of the ;‘filing” provision is to acquaint the Governor
and the Budget Board with the use to which the funds will be put. However,
we cannot say that a project was not properly authorized merely because
the evidence of “approval”  filed was in some form other than a resolution
of the Board of Corrections   to transfer the funds.  Whether or not a
project was actually approved is a question of fact.

        Your third question asks if an appropriation   for “capital outlay”
can be expended on building construction.     Section 10 of Article V of the
current general appropriation  act specifies;  Acts 1973, supra at p. 2202.

                Funds appropriated    . . . in items designated
                for . . . capital outlay . . . shall be expended
                only for items set out in the Comptroller’s
                Manual of Accounts,     Expenditure  Classification,
                effective November    1, 1965, as amended,     and
                numbered . . . 60 to 69 for ‘capital outlay. ’

         Expenditure  classification   no. 68 from the Manual of Accounts
is “Building Purchased,      Constructed   or Remodeled” the purpose of
which is described   by the manual:

                . . . to record payment for materials    and/or
                contract labor for construction  or remodeling
                of state owned buildings.   Does not include pay-
                ments for repair or maintenance    jobs.

        We answer   your third question    in the affirmative.

        Your    last question inquires as to whether the funds appropriated
for “classified    salaries”  may be expended in any other manner.     A rider
to the Department      of Corrections appropriation in Article III provides:

                From the line appropriation     for Salaries of
                Classified   Positions  the Department    of Correc-
                tions is authorized to purchase electronic      security
                devices for installations   on compoind fences to
                minimize    security risks while reducing the number
                of officers  required to man outside pickets,      pro-
                vided that the purchase of those devices will not
                necessitate   any supplemental    or additional appropria-
                tion out of any funds of this State. Acts 1973, ~upra at 1950.

                                          p.    2707
                                                                                                     --.
*




    The Honorable   Chet Brooks      page 4     (H-611)




    Furthermore,    a general rider in Article           V of the Appropriations         Act
    states that; Acts 1973, supraat   p. 2195:

                    Appropriations  for ‘Salaries  of Classified   Positions’
                    may also be used to pay the salaries     of positions
                    exempted from the Classification    Plan by the Governor
                    under authority granted in Section 2 of the Position
                    Classification Act of 1961. Sec. l(t)

    Thus, the General Appropriations        Act provides that the funds appropriated
    to the Department    of Corrections    for classified salaries   may be expended
    to pay the salaries   of positions   exempted from the Classification    Plan
    by the Governor,    and, subject to the stated proviso,      may be expended for
    the purchase of electronic     security devices for installation   on compound
    fences.

                                     SUMMARY

                          A line item appi-opriation   may be expended only
                    for the purpose designated therein,         subject to any
                    riders applicable    to the appropriation     for the particular
                    agency and subject further to any relevant general
                    provisions    in the Appropriations    Act.    Whether or not
                    an agency action complies       with the requirements      of an
                    Appropriations     Act rider is sometimes       a question of
                    fact.    Whether an expenditure is proper as a “capital
                    outlay” is determined     by the Comptroller’s       Manual of
                    Accounts,     and Appropriation    Act riders authorize the
                    use4Dr certain other purposes of monies appropriated
                    to the Department     of Corrections    for “classified   salaries.          ”

                                                                Very   truly yours,




                                                     /     /JOHN    L. HILL
                                                    I/       Attorney General         of Texas




                                               p.        2708
The Honorahle   Chet Brooks     page 5     (H-611)




DAVID &f. KENDALL,     First   Assistant




C. ROBERT HEATH,       Chairman
Opinion Committee


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