          THEAIT~RNEY               GENERAL
                      OFTEXAS




Honorable Geo. H. Sheppard
Comptrollerof Public Accounts
Austin, Texas
Dear Mr. Sheppard:          Opinion No. O-5044
                            Re:   Payment of "pre-session" em-
                                  ployees of 48th Legislature.
         Your letter of January 20, 1943, is quoted below:
        "There has been presented to this depart-
    ment for payment a pay roll for pre-session em-
    ployees of the Forty-eighth Legislature. Ser-
    vices for this pay roll were incurred prior to
    the time the Forty-eighth Legislature convened.
        "Am I authorized to issue warrant in pay-
    ment of such pay roll against funds appropriated
    for contingent expenses of the Forty-eighth Leg-
    islature?
       "The Forty-seventh Legislature, by resolu-
   tion, provided for a certain number of days in
   which employees of the Forty-seventh Legislature
   were to complete certain post-session work, but
   apparently the number of days provided for in
   the resolution were insufficient for the employees
   to complete the work.
       "Am I authorized to issue warrant for payment
   of a pay roll providing for compensation for a
   number of days in excess of the number allowed
   by resolution by the Forty-seventh Legislature?
       "Can the Forty-eighth Legislature, by reso-
   lution, authorize the payment of this excess ser-
   vice out of the contingent expense account of
   the Forty-eighth Legislature?
         Article 3, Section 44, of the Texas Constitution pro-
vides:
         "The Legislature shall provide by law for
Honorable Geo. H. Sheppard, page 2         O-5044


    the compensation of all officers, servants,
    agents and public contractors, not provided
    for in this Constituion, but shall not grant
    extra compensation to any officer, agent, ser-
    vant , or public contractors, after such public
    service shall have been performed or contract
    entered into, for the performance of the same;
    nor grant, by appropriation or otherwfse, any
    amount of money out of the Treasury of the
    State, to any individual, on a claim, real or
    pretended, when the same shall not have been
    provided for by pre-existing law; nor employ
    any one in the name of the State, unless author-
    ized by pre-existing law."
        Under this section of the Constitution, the Legislature
can not pay claims Incurred without pre-existing authority of
law. Therefore, unless the services for which compensation is
proposed to be made were rendered pursuant to a law authorizing
the employment of persons to render them, Section 44 of Article




        We find no authorization for the employment of such
persons to render the servI.cesfor which the payroll is sub-
mitted, antedating the rendition thereof. The services all
appear to have been rendered prior to the session of the 48th
Legislature. The 47th Legislature made the usual appropria-
tions for contingent expenses of its session. The Senate, on
July 3, 1941, passed a resolution (S.R. No. 185) which provid-
ed in part:
       "He it resolved by the Senate, that the
   following named employees be retained for the
   number of days, and.at the per diem salary,
   specified in each case to perform such duties
   as may be required of them in connection with
   the business of the State, viz:"
        There followed a detailed list of the employees to be
retained, the number of days for which they were to be retained,
and the per diem salary to be paid each employee. Payment
therefor was directed to be made out of the contingent expense
fund of the 47th Legislature.
-   -




Honorable Geo. H. Sheppard, page 3        O-5044


        The listing of employees to be retained excludes the
idea that others than those listed might be retained. The
listing of the number of days for which the specified employ-
ees might be employed excludes the idea that such employees
might be hired for a longer period of time. And the specifi-
cation of the amount of salary to be paid each listed employee
excludes the idea of authority to contract to pay a greater
amount. "The expression of the one operates to exclude the
other." To define the authority to employ is to limit the
power to employ to the limits prescribed by its definition.
        You have informed us that the authority conferred by
this resolution was exercised in full, and payment has already
been made to the full extent of the authority given by the
Resolution. The present payroll is for services rendered for
days in excess of the number of days for which the Resolution
authorized such employees to be engaged. Employment of such
persons for periods in excess of those authorized by the
Resolution was without authority and imposed no legal obliga-
tion upon the State. Hence, Article 3, Section 44, prohtbits
the Legislature from paying for such services by appropriation
or otherwise.
                               Very truly yours
                             ATTORNEY GENERAL OF TEXAS

                               By s/R. W. Fairchild
                                    R. W, Fairchild
                                    Assistant

RWF-RR-WC

APPROVED JAN 29, 1943
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
