      .


. *




          The Honorable Lane Denton                            Opinion No. H-822
          Chairman
          Committee on Social Services                         Re: Effect of Governor's
          House of Representatives                             determination that Texas
          P. 0. Box 2910                                       Youth Council appropria-
          Austin, Texas 70767                                  tion contingency has been
                                                               partially met or sub-
                                                               stantially met.
          Dear Representative Denton:
               For the Committee on Social Services you have asked
          several questions regarding a rider to the 1976-1977 qeqerai'
          appropriations act provision for the Texas Youth Council and
          the effect of certain actions of the Governor',relatinqto
          it. The provision, in pertinent part, and thqrider reed:
                                             TEXAS YOUTH COUNCIL
                                               CENTRAL OFFICE

                                                                  For the Years Ending
                                                               August 31,      August 31,
                                                                  1976            1977

                    .    .   .       .

                    6.       Community Services:                       ‘i
                                 .       .   .   .

                                 c.          Alternate Care     4,OUQ,UQO      5,QQQ,QOQ

                    .    .   .       .




                                                     p. 3468
The Honorable Lane Denton - page 2 (H-822)


            Pursua;:tto the provisions of Article
         689a-4b, Vernon's Civil Statutes, the
         appropriations for each fiscal year under
         Item 6c, alternate care, are made contingent
         upon a finding by the Governor that the
         following fact exists for each fiscal year:
             1. That the Texas youth Council has
          developed and adopted a plan for allocation
          of the appropriation for community assistance
          which takes into consideration full utiliza-
          tion of existing facilities in a given area
          prior to the allocation of funds for new
          facilities in that same area.
             The appropriations for each fiscal year
          under item 6c are hereby appropriated for the
          establishment of halfway houses for the care
          and treatment of children under the custody of
          the Texas Youth Council, to be expended on     I
          salaries in addition to those specifically
          listed in the Schedule of Classified Positions,
          other expenses and all other activities for
          which no other provisions,are.made. The funds
          may be expended also for purchasing services,
          including appropriate housing, meals, psychiatric,
          casework and counseling services from existing
          public or private agencies. Acts 1975, 64th
          Leg., ch. 743 at 2417, 2503, et seq.
     On September 29, 1975, subsequent to the effective date
of the above general appropriations act provisions, the
Governor advised the Comptroller of his determination that
'the specified fact has been partially met" and that he was
"authorizing the Youth Council to utilize $l,OQO,OQO for the
alternate care program." On February 12, 1976, the Governor
further advised the Comptroller of his determination that
"the specified fact has been sufficiently met to authorize
the youth Council to utilize an additional $l,OOQ,QQQ in the
1976 fircal year for the alternate care program."




                          p. 3469
The Honorable Lane Denton - page 3 W-822)


     The Comptroller, we are advised, has funded the appro-
priation item only to the extent of the $2,OOQ,OQQ authorized
by the Governor.

     Because some of your questions are made moot by our
answers, it is necessary that we respond to only three of
your questions. your first question is:
           Is Art. 669a-4b constitutional or doea it
           attempt to confer upon the Governor powers
           denied him under Art. IV, 6 14 of the Con-
           stitution of the State of Texas?
     Article 689a-4b,   V.T.C.S., provides:
              Section 1. The Governor of the State of
           Texas is authorized to find any fact specified
           by the Legislature in any appropriation bill aa
           a contingency enabling expenditure of any
           designated item of appropriation.            ,
              Sec. 2. (a) The Governor shall base his
           finding on the eviden'ceas it exists at the
           time of his determination: provided.the Leqis-
           lature may by condition in an appropriation
           bill require such determination to be made
           following a public hearing.
              (b) The decision of the Governor, together
           with his findings of fact, shall be filed with
           the Comptroller of Public Accounts and the
           Legislative Budget Board.
              (c) The Governor's decision shall be final,
           subject to review in the courts by mandamus
           or other,appropriate legal remedies.
              (d) His certificate, under the seal of his
           office, stating his decision, shall be evidence
           of hie decision.
     The constitutionality and effect of article 609a-lb war
considered in Attorney General Opinion H-207 (1974). There
we said:




                             p. 3470
                                                                  .




The Honorable Lane Denton - page 4 (H-822)


            Insofar <.s the :.tilCi&will authorize
         an appropriation to be made to hinge
         upon the determination by the Governor
         of the existence of a fact, and not upon
         any exercise of his discretion, we think
         it valid . . . .
         . . . [Glenerally, an appropriation may be
         made subject to a determination by
         the Governor, or another administrative
         officer, that an event has occurred or
         a fact exists.
     In this~case, the 1976 fiscal year appropriation item
for the Texas Youth Council has been conditioned upon the
existence of a fact, i.e., the development and adoption by the
Texas youth Council o-plan    for allocation of the appro-
priation for community assistance which takes into consider-
ation full utilization of existing facilities in a given
area prior to the allocation of funds for new facilities in '
that same area. The Governor has been delegated the respon-
sibility for determining whether such a plan has been developed
and adopted, not the reeponebility for shaping the plan or
for approving it. The latter authority cannot be given him
by an appropriation act rider alone. Attorney General
                       See also Attorney General Letter
Opinion X-268 (1974). --
Advisory No. 2 (1973).
     The next queetion is:
          If the rider does call for a finding of
          fact, can the Governor determine that the
          'fact' partially exists and thereby authorize
          only a partial expenditure of funds? Or does
          the contingency contained in the rider apply
          to the entire appropriation so that~either
          all or none is released, depending on the
          Governor’s finding7




                         p. 3471
.*




     The Honorable Lane Denton - page 5   (H-822)


          The Legislature delegated to the Governor the power to
     determine whether or not a particular fact exists. It has
     not given him the power to determine whether the appropriated
     funds should be released in whole or in part. Article 699a-4b
     permits the Governor to find a fact specified by the Leqisla-
     ture "as a contingency enabling expenditure of any designated
     item of appropriation.! (Emphasis added). A definition of
     that term was given in Commonwealth v, Dodson, 11 S.E.Zd 120
     (Va. 1940) and was quoted with approvalbye     Texas Supreme
     Court in Jessen Associates, Inc. v. Bullock, 531 S.W.Zd 593,
     599 (Tex.Gup.1975).    The C=    iiidxcatedthat "[a]n item
     in an appropriation bill is an indivisible sum of money
     dedicated to a stated purpose." See also Fulmore v. Lane,
     140 S.W. 405 (Tex. Sup. 1911). Inthiscase,        Eemof
     appropriation is an indivisible sum of $4,QQO,OOO. If the
     fact is found to exist, the whole amount appropriated for
     1976 is then available to the Texas Youth Council; if it is
     found not to exist, none of the appropriated funds for 1976
     are available to it.
          Both the rider and the Governor's letters to the Camp-
     troller speak of the appropriation being contingent upon a
     finding that a particular, singular fact exists. The Governor
     has been given no power to find a fact relative to only a
     portion of the item or to authorize the release of a part of
     the appropriated funds upon finding the existence of a
     different fact.
          The next question is:
               If the Governor must release all or none
               of the appropriation, doea the finding
               that the contingency has been partially
               met or substantially met enable the TYC
               to utilize the entire $4 million for FY
               767
          When an act of a public officer  is capable of two
     meanings, one #within his authority and one without, the act
     should be construed to be lawful. Beard v. Marshall, 32
     S.W.Zd 496 (Tex. Civ. App. -- Eastland9m,     no writ). See
     23 Tex. Jur.Zd Evidence S 82 at 123 et seq. Xere the ho=-
     nor ham advised the*Comptroller on stationary bearing his




                              p. 3472
                                                                         .


                                                                             .



      The Honorable bane Denton - page 6 (H-822)


      seal that 'the specified fatt has been sufficiently met to
      authorize the Youth Council to utilize an additional $l,OOO,OOQ
      in the 1976 fiscal year for the alternate care program."
      The letter to the Comptroller can be considered the Governor's
      certificate of his decision on the matter. -See Attorney
      General Opinion H-573 (1975).
           It is impossible to ascertain with complete certainty
      whether the Governor's certification was intended to indicate
      that the specified fact had been sufficie~ntlymet within the
      meaning of the rider provision or sufficiently met within
      his personal contemplation to justify no more than a further
      one million dollar expenditure. The rider gives the Governor
      only the option of releasing all of the funds or none of them.
      Since the Governor is presumed to have acted within his
      authority, the fact finding which he characterized as being
      sufficient to permit the release of $l,OOQ,OOO probably would
      be conotrued by the courts to permit the release end utilizatfon
      of the entire appropriation item.
                                                                4
                            SUMMARY

               Where an appropriation item for the Texas
               Youth Council has been made contingent
               upon a determination by the Governor that
               a single, specified fact exists, the Gov-
               ernor's formal written advice to the
               Comptroller that the specified fact has
               been sufficiently met so as to authorize
               the agency to utilize a part of the
               appropriated funds probably would be
               construed by the courts as a certificate
               that the condition haspbeen satisfied
               so as to make available to the agency
               the entire amount appropriated.

                                  -Very truly yours,



                                   Attorney General of Texas
                                          .




                                p. 3473



I--
.               w                         w

    The Honorable Lane Denton - page 7 (H-822)


    APPROVED:




    Opinion cpmmittee
    jwb




                              p.   3474
