                                   March    20,       1952



Hon. M. B. McCoy,       D. C.                   Opinion      No.   V-1423
President,     Texas  Board   of
 Chiropractic     Examiners                     Re:      Legality  of defraying    from
Austin,    Texas                                         Item 6 of the Board’s      cur-
                                                        rent appropriation     certain      *
                                                        expenses   necessary     to ob-
                                                        tain evidence   of violations
Dear    Sir:                                            of the Chiropractic     Act.

           We   quote   from   your   request     for    an opinion     of this   office:
as   follows:

            “This   Board now has an Investigator         checking    Chiro-
       practic    offices    throughout   the State.  Several   cases    in-
       volving    a violation     of the Chiropractic   Law have been
       settled    and disposed      of by suspension   and cancellation
       of licenses      after a hearing    conducted   by the Board     under
       the provisions        of Section  14 of the Chiropractic    Act.

            “Experience      has indicated      that we will not be able
       to obtain adequate       and competent        evidence   to justify
       prosecution      for violations      of the Act, unless     our In-
       vestigator     is able to incur reasonable          expenses    in con-
       nection    with obtaining     evidence.       By this, I mean that
       in certain    cases,    he may be required         to pay for a
       chiropractic      adjustment.       He may have to obtain certi-
       fied copies     of recorded      instruments.       He may need on
       the spot secretarial        help in connection       with taking an
       affidavit   or in some      instances,     it will be necessary     to
       have pictures       taken.

            “As the situation    now stands,    we are ~informed     that
       items   of expenditures,      such as the above,     cannot be paid
       from the Chiropractic        Fund.    This will seriously    handi-
       cap the Board     in the effective    enforcement     of the pro-
       visions   of the Act.    It is necessary     that we determine
       just how far we can expect         the Comptroller’s     Depart-
       ment to go in allowing       expenditures,     such as the above,
       to be paid out of our appropriation.

            “Question:     In the enforcement     of the Chiropractic
       Act,   can this Board,     through   its Investigator    or Board
       members,       incur expenses     such as listed    above,  and if
                                                                                         ..




Hon.   M.    B.   McCoy,   D.   C.,   page   2 (V-1423)




       the answer  is in the affirmative,          can the Comptroller
       approve  such expenditures     for        payment?  ”

         The Chiropractic        Act is codified    as Article     4512b,   Vernon’s
Civil  Statutes.    That law creates      the Texas     Board    of Chiropractic
Examiners      and outlines    its purposes     and duties.     Under     Section  14
of this act, the Board      is vested   with authority     to revoke,      cancel,
or suspend     the license    of any person,     or refuse    to admit persons
to its examinations      and to issue    licenses    to practice     chiropractic,
after legal notice     and a full and impartial       hearing,    for any of the
reasons    designated    in paragraphs      numbered     1 through     7. These
reasons    are listed   as follows:

          “1. For failure    to comply         with,      or the violation   of,
       any of the provisions    of this       Act;

           “2. If it is found that said person   or persons    do not
       possess   or no longer   possesses  a good moral     character
       or is in any way guilty of deception    or fraud in the prac-
       tice of chiropractic;

           “3.  The presentation        to the Board,    or use of any
       license,   certificate,     or diploma,    which was illegally     or
       fraudulently     obtained,    or the presentation      to the Board
       of any untrue statement         or any document      or testimony
       which was illegally        or fraudulently    obtained,    or when
       fraud or deceit      has been practiced      in passing     the examin-
       ation;

            “4.  Conviction  of a crime    of the grade of a felony,                or
       one which involves     moral   turpitude,   or the procuring                or
       assisting   in the procuring    of a criminal   abortion;

           -5.   Grossly     unprofessional    or dishonorable    conduct
       of a character      likely   to deceive  or defraud   the public;
       habits  of intemperance,        or drug addiction,    or other
       habits   calculated     in the opinion  of the Board    to endanger
       the lives of patients;

             “6.  The use of any advertising    statement             of a charac-
       ter    to mislead or deceive  the public;

           “7.  Employing      directly   or indirectly    any person     or
       persons    whose   license    to practice   chiropractic     or any
       of the healing    arts has been canceled,        suspended     or re-
       voked,   or the association      in the practice     of chiropractic
       with any person      or persons     whose license      to practice
       chiropractic     or any of the healing     arts has been canceled,
       suspened     or revoked,     or any person     or persons     who have
Hon.    M.    B.   McCoy,      D.   C.,    page   3 (v-1423)




       been convicted  of the unlawful   practice   of any of the
       healing arts in any State, territory     or district.”

            Section 14 further   grants to persons    aggrieved                     by any such
action     of the Board   the right to have such issue     tried                   in a proper
district     court of this State as therein   provided.

             Section     11 of the Chiropractic          Act    provides:

            “The fsnds    realized     from the fee,s collected       under
       this Act [see     Secs.d,     9, and 101 shall con&it&e          the
        ‘Chiropractic     Examiners       Fund” and shall -be applied         to
       the payment      of ‘necessary     expenses     of%e    Texas   Board
       of Chiropractic       Examiners,      includingthe     expenses      au-
       thorize~d,by    said Board in snfmcirrg-,the         provisions     of
       this Act, and ~to compensate          .members~ .nf the Board        for
       the time actually       s~pent in discharge      of their official
       duties,   in the sum of Ten Dolla,rs          ($10) per day, plus
       their actual and necessary           expenses.

           “All disbursements      from   said.fund  shall be made
       only upon written    approval    of the president    zmd ~secretary-
       treasurer   oft the s I . Board   ~ 0 *, and upon warrants     drawn
       by the ComptroIler      to be paid out,,of .said~.fund.” ,(Emphasis
       added throughout .)

             Section      2 provides       that the   Board     “shall    defray    all   expenses
under      this Act      from fees        provided    in this   Act.”

         The current           biennial  appropriation~bill              (H-B. 426, Acts  52nd
Leg.,  R.S. 1951, ch.          499, at p. 1320) appropriates               to the Board  out
of the Chiropractic            Exammers     Fund as follows:

             ‘TEXA,S   BOARD      OF         CHIROPRACTIC     EXAMINERS
               (Out of~Chiropractic           Examiners   Fund)

             Personal       Services                      For~,the     Years    Ending
             (Salaries      and Wages)               August     -31,             August     31,
                                                          1952                        1953
1. Board     Members        per Diem.       ~       $ 4.660.00                 $ 4,680.OO
2.  Executive      Secretary.      (I D I . e           3,840.OO                   3,840.OO
3.  Secretary-Bookkeeper              I . . .           2,640.OO                   2,640.OO
4.  Investigator.       , . I . . . . . D.              3,640.OO                   3,840,OO
      Total    a ~ 0 . 0 . n . I m0 . .             $15    000 00              $15     00 00
    Travel    Expense        . 0 . . . . a .            4:800:00                   4:~oo:oo
2: Printing,      postage,     telegraph,
      telephone,     office    rent, equip-
      ment, bond premiums,              re-
      pairs,   stationery,      office    sup-
      plies and contingent          expenses.   4,250.OO                           4,250.OO
Grand Total       - Texas     Board      of
Chiropractic       Examiners.        . . . e $24,050.00                        $24,050.00”
                    .

Hon.     M.   B.    McCoy,    D. C.,    page    4 (V-1423)




             In Attorney     General’s      ,Opfnion Q-6638        (1945) ~&was held that
  expenses      of the nature here ~invalved coatd not be paid.unless                   there
  was an express        appropriation        for th-atspecific       purpose.    An examin-
  ation of ~that opinion rweals~fhat             no ~considirrntion       was given to the
  appropriations       madefor        “contingent      expense”by       Item 5 pf Senate
  Bitt 33t;‘rP8th     Leg.,   ‘l9’@3, ch:4%3,      ‘p~.,8-&5, st Q. 969.    Furthermore,
  the holding     was predicated         on Attorney       Ge-l%Opirrion           O-4222
  (194l),   involving    a consideration,,~the‘t941             appropriation     to the
  State Board or’Medicai            Examinersbill          (S.B. 423, AcCs47th       Leg.,
‘B.S.     1941; ch. ,5?I; p. llfrf eat p. i204) which did.nut            contain a speci-
 ‘fit appropriation       for ‘“contingent       ‘expense.     * For ~this reason     we
  do not ,believe ,these opinions           are controlling       in arriving    at an
  answer      to your question

         Item 6 of the-~above      appropriti~irm~~ppropriates        a 1nit-1~ sum
amount    to cover’ certainenumerated           specific   ~purposes land also
“contingent    expenses.”       Your qnestionwith~~ragard         to defraying
from Item 6 of the appropriation           certain,exQenses      mcsesary      to
obtain evidence     ~ofviolation    of the Chiropractic       Act involves    the
determination     of the meaning       to be ascribed     to the term    “contin-
gent expenses.    1(

          The term    “contingent     expenses   ” is~frequently:    used to con-
note fufure expenses        of an unknown and uncertain         nature which
may or may not’be        incurred,    and which depend on some future
uncertain    event.   S~cott v. City of Jamestown,        21~N.W.      668,   673
(N; Dbk. Sup. W>.          It is sometime~s    used to~refer      ton&      expenses
as are “poss~ible    or liable,    but n~ot certain to occur.((      Brannin     v.
Sweet Grass      County,    293 Pac.   978, 972 (Mbnt.     Sup. 1930).

            In     Dunwoody     v0 United      States,   22 Ct.   Cl.   269,   280   (lJ387),
it is    said:

              “The adjectives          contingent,   incidental,      and miscel-
          laneous,       as used in appropriation         bills   to qnalifg.-the    word
          expenses,        have a technical      and,welldunderstood          meaning;
          it is~usuaI’for        Congress     to name the principal         classes     of
          expenditure         which they authorize,         such as clerk hire,
          fuel,‘.light,     posta~ge, telegrams,      etc.,     and then to make a
          small     appropriation        for the minor      and unimportant        dis-
        .‘bursements          incidental    to any greatbusiness,          which can-
          not well,be       for~eseen,     and which it would-be.useless            to
          specify       more accurately,        For such disbursements,             a
          round sum is appropriated              under the head of ‘contingent
          expenses’,        or ‘incidental     expenses’,      or ‘miscellaneous
          expenses.’        ”

         In Attorney   General’s    Opinion               O-906A  (1939),   it was pointed
 out that an appropriated    “contingent”                fund in itself   ordinarily  im-
Han,   M.   B.   McCoy,   D. C.,   page   5 (V-1423)




plies unpredictable      items   of cost or expense.          So, where     the
Legislature     has foreseen    various    expenws-and         provided     for
them definitely,    funds provided      f~or ‘contingent       expense”     cannot
be used to supplement        expenditures     for items     for which the
Legislature     made definite    and specific      provision,      unless   the
context    of the appropriation     requires     a contrary      interpretation.
Ordinarily,     moneys    of the contingent     fund are to be used for
purposes     for which the Legislature        made no specific         itemized
provision.

         In Attorney       General’s    ,Op?nion O-1294      (1939) it was stated
that the appropriations         for *contingent      expenses”     appearing     in
the 1939 appropriation         act were intended        by the Legislature      to
provide   lump sum appropriations            for those expenditures         of a
department      for which the Legislature          did not deem it necessary
or expedient      to make specific       and separate      itemized    appropria-
tions.   We think a like intent should be applied               to the appropria-
tion under consideration          here.    In short,    we think the appropria-
tion available      in Item 6 for ‘contingent         expenses”     &as intended
by the Legislature        for minor disbursements           incidental   to carry-
ing out the purposes         of the Chiropractic       Act not elsewhere       therein
provided    for.

          It is clear that the questioned         expenditures      would be for
a purpose     authorized     by the Chiropractic       Act.    Section   11 of the
act provides      that, among     other purposes,      the Chiropractic       Exami-
ners Fund “shall        be applied    to the payment      of necessary      expenses
. . . authorized     by said Board       in enforcing    the provisions      of this
Act.”    Section    14 empowers       the Board to conduct hearings           on the
revocation,     cancellation,-suspension,         or withholding      of licenses
for persons      who violate     or fail to comply     with that law.       You have
advised    that the Board       cannot effectively    enforce     the provisions
of this Act unless       your investigator      may incur reasonable          ex-
penses    in obtaining     adequate    and competent       evidence    that will
justify  prosecution      for violations     thereof.

          Accordingly,      in view of the absence        in the Board’s       cur-
rent appropriation        of a specific    item for enforcement          purposes,
it is our opinion      that funds in Item 6, which are available              for
“contingent     expenses,”      may properly       be used in the payment           of
expenses     in obtaining     necessary     evidence    for prosecutions,         pro-
vided the Board       shall have first      authorized     the incurring     of the
expense    toward    the enforcement         of the law.    Under suitable        cir-
cumstances       any of the expense       items    enumerated       in your letter
would be a proper        expense     in the enforcement        of the Chiropractic
Act.    Furtheremore,        under Section       11 of Article    4512b,   the Comp-
troller   can legally     draw a warrant        for the payment       of such expendi-
tures.
Hon.   M.   B.   McCoy,   D.   C.,   page   6 (V-1423,)




                                     SUMMARY



           Item 6 of the curr~ent ~bienniat ,appropriation          of the
       Texas    Board   of Chiropractic       Examiners     (H.B.   426, Acts
       52nd Leg.,    R.S. 1951, ch. 499; Art. III, Sec. 1, p. 1320),
       which includes      “contingent    expenses”     among~ its pur-
       poses,    may -be used in the payment         of expenses     incurred
       in otitaining   evidence    of violations    of~the provisions      of
       the Chiropractic      Act, provided      the Board~authorizes        the
       incurrence     of the expense.      Art. 4512b,    Sets.   2, 11, 14,
       V.C.S.



                                               Yours      very   truly,

APPROVED:                                       PRICE       DANIEL
                                               Attorney      General
Mary K. Wall
Reviewing Assistant

Charles    .D. Mathews
First   Assistant                                  Chester    E. Ollison
                                                      Assistant

CEO:meh
