    .




                           duly   28,    1955


Honorable John II.Winters          Opinion NO. s-163
Executive Director
Department of Public Welfare       Re:     Effective date for allo-
Austin, Texas                              catlon of welfare funds
                                           under House Bill 413,
                                           54th Legislature, and re-
Dear Mr. Winters:                          lated questions 0
          You have requested an opinion on the amounts which
should be allocated to the Blind Assistance Fund, the
Children’s Assistance Fund, and the Old Age Assistance Fund
for the month of September, 1955, and the date or dates on
which the allocations are to be made.
          House Bill 413, Acts of the 54th Legislature, 19.55,
amended Subsections (l), (2), Andy (4) of Section 2, Article
XX of Chapter 184, Act8 of the 47th Le islature (Section 2 of
Article 7083a, Vernon’s Civil Statutes7 so as to provide for
annual Increases totaling $7,000,000 in the allocations to
these funds for the fiscal year beginning September 1, 1955,
and for each fiscal year thereafter. The law provides that
the allocations are to be made on the basis of monthly pay-
ments payable on the first day of .each calendar month.
          Section 2 of House Bill 413 provldes that the Act Is
to become operative on September 1, 1955. The bill carried an
emergency clause providing for immediate effectiveness, but
final action on passage of the bill in each branch of the
Legislature was by a viva vote vote. Article III, Section 39
of the Texas Constitution provides:
             “Ii0law passed by the Legl.slature,except
        the general appropriation act, shall take effect
        or go into force-until ninety days after the ad-
        journment of the session at which it was enacted,
        unless in case of an emergency, which emergency
        must be expressed in a preamble or in the body
        of the act, the Legislature shall, by a vote of
        two-thirds of all the members elected to each
        House, otherwise direct; said vote to be taken by
        yeas and nays, and entered upon the journals.’
Honorable John H. Winters, page 2 (S-163)


Inorder to put a bill into effect earlier than 90 days after
adjournment, it is necessary tnat a record vote of two-thirds
of its members be taken on final action by each House. Since
the bill was not passed by the necessary lxecordvote, it will
not be In force until September 6, 1955. Caples v. Cole 129
Tex. 370, 102 S.W.2d 173 (1937); Att'y Gen. Ops. -(1943),
s-90 (1953). Until the expiration of the constitutional
period, it has no effect as law. Missouri. X. 8:T. Ry. Co. of
Texas v. State, 100 Tex. 420, 100 S.W.             Ponham v.
Patterson, 121 Tex. 615, 51 S.W.2d 680            Tex. Jur.,
Statutes, Sec. 25.
          House Bill 140 of the 54th Legislature, the General
Appropriations Act for the 1955-1957 biennium, appropriates
the additional $7,000,000 for each of the fiscal years of the
biennium. This Act will become effective on September 1, 1955,
and will make available for expenditure all moneys which are
allocated to the welfare funds. However, House Bill 140 does
not constitute, or purport to constitute, an authorieation for
transfer of moneys to the welfare funds; it merely appropriates
the moneys which are transferred to the funds under the general
law. Before the money is available for expenditure under the
appropriation, it must be transferred into the respective funds
from which the appropriations are made, and Article 7083a is
the only authorization for such a transfer.
          Until House Bill 413 becomes effective, Article
7083a as it existed prior to the amendment continues to be in
force. "Where the legislature passes an act to amend a statute
then existing, the latter remains in full force during the
interval between passage of                act and the time
when it becomes effective."                       Sec. 399. It
follows that on the first da                      the monthly
sums specified In Article                         amendment
should be allocated to the respective funds.
          The next question to consider Is whether House Bill
413 will authorize a further allocation for the month of
September on its effective date. As a general rule, statutes
operate prospectively, but they may operate retrospectively
when It is apparent that such was the Intention, unless some con-
stitutional impediment prohibits it. COX v. Robison, 105 Tex.
426, 150 S.W. 1149 (1912); American Surety Co. r?f-lGwYork v.
Axtell Co., 120 Tex. 166, 36 S.W.2d 715 (1931). It is apparent,
both from the provision that the bill was to become operative on
September 1, 1955, and from the provision that the bill was to
apply to allocations for the fiscal year beginning on that
date, that the Legislature Intended that House Bill 413 should
control the allocations for this month. In 39 Texas
     Honorable John II.Winters, page 3 (&163)


     Jurisprudence, Statutes, Sec. 27, the meaning of the con-
     stitutional prohibition against enactment of a retroactive
     law is summarized in this language:
               n . . . But this provision is construed
          merely as forbidding the enactment of any law
          that will prejudicially affect existing, vested
          rights,--whether arising out of contract or
          tort--or the operation of a law in such manner
          as to have that effect. The inhibition is not
          ordinarily extended to a procedural or remedial
          statute, such as a curative act, or, in fact,
          to any act which does not disturb or impair
          vested rights."
               An application of House Bill 413 so as to make It
     retroactive to the first day of September would not impair
     rights of taxpayers who provide the revenues out of which
     the public assistance programs are financed. It would not
     create any new liabilities on their part, or increase the
     amount which the State is authorized to pay out. Without
     giving House Bill 413 a retroactive effect, it still would
,-   allocate the full $42,000,000 for payment of grants during
     the 1955-1956 fiscal year. The only difference between retro-
     activity and nonretroactivity is in time of payment of the
     allocations.
               The only other conceivable impairment would be in
     respect to rights which might have'arisen In reliance upon the
     allocations which had been made on September 1 to the special
     funds which participate in the Clearance Fund. There could not
     possibly be an impairment unless a reallocation in accordance
     with House Bill 413 would reduce the amounts previously allo-
     cated to the special funds from all available sources. Taking
     Into consideration the anticipated condition of the Clearance
     Fund and the General Revenue Fund, the probability of a reduc-
     tion Is so remote that we do not deem it necessary to discuss
     the question of whether an impairment would result in those
     circumstances,
               Based on the assumption that an adjustment would not
     reduce the previous allocations, upon the effective date of
     House Bill 413 the Comptroller will be authorized to adjust
     the various funds In accordance with the allocations that would
     have been made on September 1 if House Bill 413 had been in
     effect on that date. If the amount in the Clearance Fund on
     that date was sufficient to pay all allocations to the six
     funds which share in the Clearance Fund (including the Increased
     allocations to the three welfare funds), any remaining balance
     would have been paid into the General Revenue Fund. If the
     amount in the Clearance Fund was insufficient to pay all
Honorable John H. Winters, page 4 (s-163)


allocations except the full allocation to the Foundation
School Fund, the difference would have been paid out of the
General Revenue Fund. In either of these circumstances,
the adjustment may be made by transferring the necessary
amounts from the General Revenue Fund to the respective wel-
fare funds, since the General Revenue Fund is the one which
will have benefited by the fact that the increased alloca-
tions were not made on the first day of the month. In view
of the unlikelihood that the amount In the Clearance Fund on
September 1 would not be sufficient to pay the full alloca-
tions to the other five special funds in the order of their
priority, we shall not detail the method of adjustment for
other circumstances.


          House Bill 413, Chapter 392, Acts of the
     54th Legislature, which provides for annual in-
     creases totaling $7,000,000 in the Blind
     Assistance Fund, the Children's Assistance Fund,
     and the Old Age Assistance Fund, will become
     effective on September 6, 1955. On September 1,
     1955, allocations should be made to these funds
     on the basis of an annual total of $35,000,000,
     but on September 6 each of these funds will be-
     come entitled to receive for the month of
     September one-twelfth of its share of the
     $7,000,000 annual increase. The adjustment in
     allocations may be made by transferring the
     additional amounts from the General Revenue Fund.
APPROVED:                           Yours very truly,
J. A. Amis, Jr.                     JOHN BEN SREPPERD
Reviewer                            Attorney General
John Reeves
Reviewer
Robert S. Trotti
First Assistant                        Assistant
John Ben Shepperd
Attorney General
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