                         TEEA~-ORNEYGENERAL
,'\                              OF TexAs
                                     Aun-rw.     -              78723




                                          January ~10, 1974


          The Honorable     Robert S. Calvert                     Opinion No.   H-   207
          Comptroller    of Public Accounts
          State Finance Building                                  Re: Validity of various provisions
          Austin,  Texas                                          of The General Appropriations   Act
                                                                  for fiscal 1974 and 1975



          Dear   Mr.   Calvert:

                You have requested our opinion concerning      several riders to~the Appropri-
          ations Act forfiscal  1974 and 1975 (House.Bill   l39. 63rdLeg.    ) which appear in
          ArticleV,   the General  Provisions.-    One is Section 8 (p. V-37) whichprovides
      ’   for payment for injuries suffered by state employees while performing         the duties
          of any hazardous position-and    rsquiree:  “The  ~expenditure  of any  appropriation
          for the purposes authorized by this Sectionshall      have the approval of the
          Governor.   ; . .‘I

               Section 37 of the same      Article deal8 with “Computer    and Computer         Related
          Equipment and Servicer”.         It contains the provision that:

                                   “Funds appropriated      in this Act and budgeted by
                       :, agencies andidepartuients       in Articles  I through IV for
                          the scquisitio~;~f.com~tar.land        computer-related     .equip-
                          ment or services,      including-software    program.products
                          and the employment       on a fee basis of any private firm or
                      ,~i perron acting%n the capacityof         dataprocessing     consul&.
                        ~,tants or supplying computerrupport          services   for any
                   I:     executive department       or agency shall be expended only
                      *. after, a determination      by the Governor.     in accordance
                         .with the~provisions     of House Bill No. 50, Acts of the
                          ~Sixty-second Legislature,       Fourth Called Session,      that
                          the ,following ~facts have occurred:




                                                     p.   970
     The Honorable      Robert      S.   Calvert.   page 2 (H-207)
.-




                         “(a)     That a detailed report has been prepared
                                  outlining the steps taken to utilize like
                                  resources   already existing within the
                                  agencies of the state and the conditions
                                  requiring the additional resources.

                         ‘l(b)    That the assistance  of the Systems
         -    ‘
                                  Division of the State Auditor’8  Off&ce
                                  and the Office of Information   Services,
                                  Governor’s   Office, has been sought and
                                  that both have concurred      in the proposed
                                  expenditure,      i’

             Your questions      are:

                    (1) Is the rider, requiring approval by the Governor   of
                    the expenditure of any appropriation   for injuries valid?

                    (2)Is the rider with reference  to the computer     services
                    a valid rider insofar as it requires    the determination
                    by the Governor that subsections     (a) and (b) have been
                    complied with?

                    (3) Is subsection  (b) of the second rider valid infofar
                    a* it requires   &currence     of the State Auditor?     ’

                   (4) Is subsection    (b) a valid rider ~insofar as it requires    :
                  ~the concurrence      of the Office of.Information  Services
                  .of the Governor%       Office?.
                                   :
           Both of the riders about which you inquire apply across the board to
     state agencies,-   offices and departments.       Thus they would apply alike to con-
     stitutional offices,    such as that of the Attorney General,     as well as statutory
     offices.   We find with little difficulty that the rider making the Governor’s
     approval a prerequisite      .to the expenditure of appropriated’funds’    is‘ invalid. We
     need only rerer to Attorney General Opinion M-1141 (1972) holding that a rider
     in the Appropriations      Act requiring approval of the Governor for expenditure




                                                    p.   971
.-        --




     .-        The Honorable      Robert   S.   Calvert,        page    3 (H-207)




                of appropriated   funds to be used to pay dues. registration    fees,  or any kind of
                similar expense incurred in joining or participating     in any type of organization,
                association.   or society was invalid: Attorney General Opinion M-1191 (1972)
                holding invalid a rider in the Appropriations    Act authorizing   executive depart-
                ments and agencies of the State to transfer funds when requested by the Governor
               to do so; Attorney General Opinion M-1199 (1972) holding invalid a great number
                of riders in an appropriations   act requiring approval of the Governor for the
                expenditure of funds appropriated    for specific purposes.

                    The 63rd Legislature   submitted to us a proposed bill which would have
               given to the Governor budgetary authority,    among other things, by withholding
               approval of expenditure8   he considered   unnecessary,  etc. We advised the
               Legislature  that, in our opinion, the bill as written would be unconstitutional.

                    Attorney     General   Letter   Advisory           No.   2 (1973)   stated:

                                      “The Bill is invalid also because it purports to
                               subject to the supervisory     authority of the Governor
                               those executive offices and departments        established  by
                               the Constitution.     The framers   of our Constitution    shaped
                               a plural executive to administer      the State.   The relation-
                               ship of the offices constituting the executive branch of
                               government     is fixed by the Constitution,   the Legislatur,e
                               cannot alter it.     Though the Governor may demand
                               certain disclosure8     of them pursuant to Article 4, $ 24
                               of the Constitution,    he cannot interfere with the exercise
                               of their power or assume any supervisory          control over
                               them.

                                      “The separation  of powers principle also denies
                               him any such supervisory     role over legislative   or
                               judicial arms or agencies    of the government.     If they
                               discharge   function8 which constitutionally   could not be
                               assigned to the Governor    initially, he cannot be given
                               supervision   over them. ”

                     We thus answer your first question that the rider purporting to require the
                approval of the Governor as a condition precedent to the expenditure of any




                                                           p.    972
The Honorable       Robert   S.   Calvert,    page 4 (H-207)




appropriation     for payment      for injuries     is invalid

      With reference  to your second, third and fourth questions,    the language
which we have quoted invokes the provision8     of House Bill 50,62nd Legislature,
Fourth Called Session (Act8 1972, 62nd Leg.,      4th C. S. ; ch. 5, p. 8).  Section
1 of that Act (now found as Art. 689a-46,   V. T. C. S. ) provides:

                       “The’Governor    of the State of Texas is authorized
                to find any fact specified by the Legislature     in any appro-
                priation bill as a contingency     enabling expenditure of any
                designated’item    of appropriation.   ‘I

      Section 2 of the Act provide8 that the Governor’s ,determination   shall-be
based upon evidence: that it shall be filed with the Comptroller    and shall be
final, subject to revie+in   the courts?   The statute has not been the subject
of either an Attorney General opinion or court decision.

     Insofar as the statute 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.     In 1942 the Pink Bollworm
Act (Articles    68 through 82, V. T. C. S. ) called for the Pink ~Bollworm .Comniis-
sion to determine whether or not there was an infestation of pink bollworms
and to make such recommendation8          to the Goverior a8 deemed sufficient to.
the protection of the cotton industry.       ‘I. . .Should,this   r.eport express the
conclusion    that ‘it is dangerous to the cotton ‘industry of Texas that cotton be
grow&in this State along the boundary adjacent to such infestation,             the Governor
shall there upon proclaim       such area . . . a nbn-cotton      zone. . ::‘I Article 71,
V. T. C. S.

     In Williams     v. State, 176 S. W. 2d 177 (Tex. Crim. 1943) the constitutionality
of this provision    was challenged and upheld.    The Court said:

                      “The question of this delegation of authority ha8
                been much before the ‘courts,   and especially is that true
                in recent years by the enlarged powers conferred upon
                administrative  boards and tribunals.    The generally
                accepted rule governing such matters now appears to




                                         p.   973
                                               --__                              __   ..--~-   _.__.   --~



          0
.




    ,-.       The Honorable        Robert S.   Calvert,    page      5 (H-207)




                            be that a legislative    body may, after declaring a.
                            policy and fixing a primary      standard,     confer upon
                            executive or administrative       officers the power to
                            fill up the details,   by prescribing     rties and regula-
                            tions to promote the purpose and spirit of the legia-
                            lation and to carry it into effect.       hi such cases the
                            action of the Legislature     in giving such rules and
                            regulation8 the force of law doe8 not violate the
                            constitutional   inhibition against delegating the
                            legislative  function . . . ” (176 S. W. 2d.at 183)

                    Therefore  we answer your second question that generally      an appropriation
               may be made subject to a determination     by the Governor,    or another adminis-
              trative officer, that an event has occurred   or a fact exists.

                    However,    when we look at the specific requirement8       of subsection (b), i. e.,
               that the State Auditor’s  office and the Governor’s     office have concurred in the
               proposed expenditure,    we find that this suffers from the same invalidity that
               we ascribed to the requirement      of the approval of the Governor for expenditures
              for injuries.   We therefore    answer your third and fourthquestions       that, insofar
               as the rider requires a finding that the State Auditor’s      office and the Office of
               Information   Services of the Governor’8     office have concurredin     the proposed
               expenditure for the computer and computer related equipment and services,
               which concurrence .is not necessarily      based on a finding of fact, the rider is
               invalid.

                                                          SUMMARY

                            The Legislature  may not, by rider to the Appropriations
                    Act, require approval by the Governor or other executive officer of
                    expenditure8 by all agencies,   departments and offices of the State
                    of a particular nature.  A finding by the Governor of the existence  of
                    a particular     fact may be required         as a prerequisite               to an expenditure.




                                                          p.   974
The Honorable    Robert   S.   Calvert,    page 6 (H-207)




Opinion   Committee




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                                      p.   975
