             THE              ORNEY         GENERAL
                                                ~:
                            OFTEXAS




Hohorabls Arthur B. Knickerbocker
The Adjutant General
Au8 tin, Texas

Dear Sir:                                Opinion Ro. O-6890
                                         Rs: Authorit‘Jof the Governor
                                              to 'grantdaflciency ap-
                                              prop?iatlon for the pur-
                                              pose of paying Instruct-
                                              ore of the Texas State
                                              Guard.

               Your request for opinion, vhlch has been coneidared most
carefully by this departmoM, reads as follows:

               "The Texas State Guard has been la operation
     alnce the paseagc of the Texas Defense Guard Act
     on February 10, 1941. During thin tiac, each
     unit of the Texas State Guard hae condwted reek
     ly periods of training. Them training periods
     consisted of olaes room, drill field, and field
     nanemer training, and necessitated considerable
     expense to each unit. This expanaa aaoumtsd     to
     approxlmatev $225,000 per rear. Thle coat "a.8
     borne by funde contributed to the amits by the
     local, ait. and county govarmueats, and by'imdi-
     ridaal ooatrlbmtlone by the members thaael+es,
     the Legislature of the State of Taxaa having ap-
     propriated oml~ $9,000 per year  for thlL purpoas.
     Since the osaaatlon of War,  looal oontrlbutiom
     to each unit hare been reduced to such an &tent
     that it is irposslble for mmny of these mnitm to
     oomtinlle.

                "The fund made available to the Adjutant Den-
     oral's Departrent by the Leglrlature of ths‘State
     of Tsxar for the conduction of schoola and traiaimg
     for the Texas State Guard  18 Appropriation
     B37 of the Adjutant General's Departrent, or Item
     lUo.74, referred to om page 26, Supplement to
     Dally and Pezmaneat Roume Jo-l,     49th Leglsla-
     ture, Regular Saaslom, dated June 1945, and vh'i'ch
     qsadm am follow:
Honorable Arthmr B. Knickerbocker, page 2, O-6890



                  “For trannportatlon, shelter, eubeimt-
               emce, training eappliee and tralmlag aids
               and equipsent, lnclndlng training litera-
               ture and all other expensea in orgenlzlng
               and maimtaining echoole, including exten-
               sion couraea and camps of imatruction for
               enlisted zaemand officerr, either or both.
                                                    $9,000.   ’

               "The fumds provided for in the abore mentioned
     appropriation being inemfflciemt to carry om
     the proper trainlag meceesary to maintain an adequate
     intern1 security force In the State  of Texas,
     the Governor has comeemted,to the dlverelon of
     $50,000 of his Deficiency Allowance to the Adjmt-
     ant Gemeral's Department for the financing of
     this traiaing.

               'Each compamy and detachment of the Texae
     State Guard hae conducted, In the pant, am average
     of three rohoole per month. Theae schools came
     under three different classificiations: schools
     for officere, schoola for nom-cogiseiomedbfflc-
     ers, and schools for enlisted perommel in @morel.
     Due to the redmction of contrlbations by local
     agencier to the State Guard, and in order to em-
     able each unit to comtinne theme sehoole, it will
     be necessary for the State of Texas to pay a nomia-
     al sum to the instructors comdmctingthese echoole,
     from funds derived fror &ate momrcee.

               “The $50,000 deficiency that would be grant-
     ed by the Governor to snpplement Item Ilo.E-7 of
     The Adjutaat Gemerml's Department Appropriation,
     would not be emfficlent to adequately cover thla
     expertise.However, it will empplememt the smmll
     aronnt of fnmdm that the units will be able to ob-
     tain from local lomrcee, and will allow theme'
     schools to coatimne an-interrupted.

                "We wleh to auhnit, for yomr opinion, the
     qmeetion aa to whether or mot this  Departaeat say
     make amah payments to the individual lmmtrnctora
     of each malt, from the remaining fmmde In Appro-
     priation Ilo.E-7 of the Adjutant General'e Depart-
     meat, until these funds are exhausted, amd there-
     after, uke emch paymemte from the deficlsncy emp-
     plement,approved for that pmrpoee."
.   .




        Honorable Arthur B. Knickerbocker, page 3, O-6890



                      Article III, Section 49, of the Couetitutlon of Texas
        provides:

                       "Ho debt shall be created by or on behalf
             of the State, except to supply caeual deficiencies
             of reveuue, repeal Invasion, eupreee lnsurrec-
             tioa, defend the State In war, or pay existing
             debts; and the debt created to supply deficlen-
             ciee In the general revenue aball nmer exceed
             in the aggregate at any one time two hundred
             thousand dollars."

                       Articles rCj51and 435la, Revised Civil Statutes, were passed
        pursuant to such constitutional provision, and read ae follows:

                       "All heads of departments, managers of St-ate
            institutions or other persons intrusted vith the
            power or duty of contracting for supplies, or in
            any manner pledging the credit of the State for
            any deficiency that may ariaa under their manage-
            ment or control, shall, at least thirty daye be-
            fore such deficiency shall occur, make out a
            eworn eatbate of the amount neceeeary to cover
            euch deficiency until the meeting of the next Lag-
            islature. Such estimate shall be immediately filed
            with the Governor, who shall thereupon carefully
            exaaiue the came and approve or disapprove the
            came in whole or In part. When such deficiency
            clain, or any part thereof, has been 80 approved
            by the Governor he shall indorae his approval
            thereon, designatiog the amount and Item thereof
            approved and the item dieapproved, and file e.%me
            with the Comptroller; and the came shall be au-
            thority for the Comptroller to draw his deficiency
            warrant for 80 much thereof as may be approved;
            but PO claim, or any part thereof, ehall be al-
            lowed or warrant.6drawn therefor by the Comp-
            troller, or paid by the Treaeurer, unleee such
            estimate has been 80 approved and filed. If there
            is a deficienoy appropriation sufficient to met
            such claim, then a warrant shall be dram there-
            for and the same ehall be paid; but, if there is no
            such appropriation, or if such appropriation be 80
            exhausted that it is not eufflcieut to pay euch
            deficiency claim, then a deficiency warrant ahall
            issue therefor; and such cleim shall remain un-
            paid until provision be made therefor at come
            ~93ion of the Leglelature thereafter. The pro-
            vialour of thle article shall not apply to fees
Honorable Arthur B. Knickerbocker, page 4, 0-6890



     and dues for which the State may be liable under
     the general laws. When any injury or damage shall
     occur to any public property from flood, storm or
     any unavoidable cause, the estimate may be filed
     at once but met be approved by the Governor a8
     provided in this article."

               "It ohall be lawful for the Governor to ap-
     prove deficiency warrant8 am provided for in Ar-
     ticle 4351, Revised Civil Statuteo, 1925, to any
     amount, the aggregate of which does not exceed
     Two Hundred Thousand ($200,000.00) Dollaro, for
     all purposes for which he is permitted to approve
     such deflcienoy varrants. If any deficiency war-
     rants are approved above this amount, such war-
     rants are invalid and unredeemable by the State
     Treasurer.*      ~",
                It appeamthat 801&edoubt ao to the conetitutionality of
Article 4351was cast by Judge Hawkins in his ooucurring opinion in
Terre11 v* Middleton, 108 Tex. 14, 191 S W. 1138. However, we believe
that its validity has been clear4 established~as pointed out in Opinion
Bo. o-2118, by the coneistent administrative practice for over thirty years
under the views of the majority of the Supreme Court that decided the
Middleton case, (18well am the implied eanction given the statute by the
Court in Fort Worth Cavalry Club, Inc., v. Sheppard, 135 Tax. 339, 83
5. W. (26) 660.

               "Casual deficiency" In thla connection was defined in said
Opinion Bo. o-2118 aa au unforeseen and unexpected situation which develope
unexpectedly and requiree the Immediate attention at a time when the
Legislature, the usual authority, ie unable to act.

               There can be no caenal deficiency of revenue8, such as we
are considering here, except with remeet to those pur~oae8 for which the
Legislature has made a e~eclfic appropriation. It is unquestioned.that the
Legislature did not intend to confer upon the Governor authority to approve
the issuance of deficiency warrants to flnanoe aoae operation which it had
considered, or night have considered, during its eesalon, and failed or
refused to appropriate money for. This point la apt4 illustrated by the
Court of Civil Appeals in the Middleton caee, 18~3.W. 367, 372 (writ of
error reinsed), where it said:

               "The appropriation by the Legislature to pay
     for the articles, ured by the Governor vae made
     under the guise of covering a deficiency, and ap-
     pellant actually contends that Article 3 eection
     49 of the Constitution, and article 4342, Re-
     vised Statutes (now Article 4351), authorize the
Honorable Arthur B. Kulckerbocker, page 5, 0-6890



     Legislmture to make provision for the pmyment of
     debts contracted by the Governor for provisions
     and other things purohased by him between Legim-
     latures. We understand that the rule is that a
     state oonatitutlon should be liberally constraed,
     in comtradistinctlon to a strict construction of
     the federal Constitution; but It in liberality of
     coastNotion running roit when Itema purahaaed
     for the table, automobile, hormem, and library
     of the Governor can be ranked as "casual defl-
     clenolee of revenue', or 'to repel Invasion, en*-.
     preoe insurrection, defend the State In tlme'of
     war or pay existing debts.' Bone of theme c6n-
     tlmgenoles had arisen, and, in regard to the last
     named, the etate had contracted no debt, and It
     vao not in existence. There were no casual defl-
     oienaies of revenue to pay for lwxurlee and nec-
     eeaariea for the household of the Governor, be-
     cause no attempt had been made to raise revshue .','
     for that purpose. lo provision had been made for
     it.....   ”

                    The following formula warnstated la Opinion Ko. o-2118
to govern the      iesua~s  of deficiency warrants:

               Where the Legislature has mmde a specific
     appropriation for a purpoee and thereafter there
     arises a casual deficiency in the revenues thus
     appropriated, the Governor, upon proper applica-
     tion therefor by one clothed vith the power to
     incur such Indebtedness on behalf of the State,
     may approve a claim for a deficiency varranyto
     extend to the next seeelon of the Leglalatu& or
     to the beginning of the next fiscal year."

               A careful reading of Item Eo. 74 of the appropria-
tion for th6~Adjutant General's Department reveala that 'thepayment to an
instructor is within its scope. There can be no question that such pay-
     ment ie included with the phrase, "all other expenses in organizing
and ralntainlng achoob."

          It cammot be questioned that the deficiency In this approprla-
tlom vae unforeseen and unexpected. At the time the Leglelature van in
aeaeion, it could not have been foreeeen that hortilltles would terminate
80 moon thereafter, nor could it be anticipated that tirevarioue city and
ooumty gorelPmentm would cease their oomtributione to the unite of the
Texas State Guard at thle tire.

     Article 4351, in defining the offioere or agenta of the State who
Honorable Arthur B. Knickerbocker, page 6, 0-6890



are authorized to create debts on behalf of the State, refere to "all heads
of departmemte, manager0 of State lmmitutione or other persons intrusted
with the power or duty of contreating for eupplles, or In any lcLnner
pledging the credit of the State for any deficiency that mmy ariee under
their management or control.* The Adjutant General is rnch an officer.
Artlole 5787*

          Therefore, it is the opinion of this Department that the Adjutent
General ray make paymente to the individual immtrnctore of eaoh unit from
the balance rwinlmg    in Item lo. 74 (referred to by you am Appropriation
Ilo.E-7).  It is the further  opinion of this department that the Governor,
upon proper and timely filing of an estimate am provided in Article
4351, may approve m claim for a deficiency warrant to extend to the meeting
of the next Legislature.

                                                         Very truly yours,

                                                    ATTORBRY GERERAL OF TEXAS


                                                    BY
                                                             Arthur   L. Moller
                                                                      Assistant

AIM:db




                           .
