Hon. George’ H. Sheppard ‘~
Comptroller     of Public Accounts
A~ustin,~ Texas

Dear   Sir:                                Opinion No. O-2258
                                           Rep: Payment of accounts incurred
                                                by Assistant    Attorneys    General
                                                for expenses     in connection with
                                                the performance      .of work’for
                                                other’state    departments /AS pay-
                                                a’ble :out,of the- appropriatjons
                                                made to such other State depart-
                                                ments.~

           This will acknowledge   receipt.of your letter of April     1’9, 1940.
In this letter you quote the following protiisions  of Senate Bill     427, Acts’ of
the .46th Legislature:

                            .
            .” The appropriations herein provided are to be, construed as
       the maximum sums to be appropriated       to and for the several .pu+-
       poses named herein; and the amounts are intended to, cover’and
       shall cover the entire cost of thenrespective   items and the same
       shall note be supplemented  from any other source; and, except as
       otherwise   provided, no other expenditures   shall be made, n&r shall
       any other obligation& be incurred by’any department      of this State.”        .

           .‘“It is’provided  that no expenditure  shall be made for traveling
       expenses by any department of~this State .in excess of the amount
       of motley itemized herein for said purpose.       This provision   shall
       be applicable    whether the item for traveling   expenses is to be paid
       out of the appropriation    from the General Fund, from fees, receipts
       or special funds collected by virtue .of certain laws of this State, oy
       from~ other funds .(exclusiv& of Federal    funds) available;,ior .use by a
       department.’

              .“,Transfers from Special Fup$s:’ In order that the c,ost of legal
       work     an@ law enforcement   may be eiuitably distributed and charged
Hon. George   H. Sheppard,    Page   2, O-2258




      against the various administrative        enforcement      funds, the State Comp-
      troller of Public Accounts and the State Treasurer             shall, as soon as
      possible,   after August 31, 1940 and August 31, 1941, respectively,
      transfer   to the General Revenue Fund of this State from the following
      special finds and allocated collections        thereto a sufficient amount of
      money to pay the entire cost of legal work and law enforcement,                includ-
      ing salaries,    rendered by the Attorney General’s          Department    for the
      respective    State agencies involved.       The Attorney General shall, on or
      before August 31, 1940, and on or before August 31, 1941, submit to the
     State Comptroller       and the State Treasurer       an itemized statement,
      under oath, setting forth the cost of legal work and law enforcement,
      including salaries,     rendered by his Department         to the agency affected.
     In making the allocations       aforementioned      the State Comptroller      and the
     State Treasurer       shall deduct from the following funds the amounts charged
     against the same as certified by the Attorney General:              Oil and Gas Enforce-
      ment Fund, State Highway Fund, Gas Utilities Fund, Motor Fuel Tax En-
      forcement fund, Old Age Administration            Fund, Securities    Act Fund, Cigar-
     .ette Tax Enforcement       Fund, Motor Transportation         Rec~eipts, Enforcement
     Funds col1ecte.d by Banking Commissioners,              State Board of Barber      Exam-
      iners, State Board of Hairdressers         and Cosmetologists       Fund, Enforcement
     Fees collected by Board of Insurance           Commissioners,       Enforcement     Funds
     collected by Commissioner          of Agriculture,    Enforcement      Funds collected
     by Bureau of Labor Statistics,        Operators     and Chauffeur’s     License Fund,
     proceeds     derived from the sale of alcoholic beverage           stamps before allo-
     cation, Special Game Fund, and other such Special Funds for which ser-
      vices are rendered by this Department.*

               You refer to the situation wherein employees    of this department
     incur expeases  in connection with the rendition of services   directly for an-
     other State department,  and ask the following three questions:

                “1. Would provision  No. 1 be violated if accounts          incurred
           under such conditions were paid out of appropriations            made to
           other state departments ?

                 *2. Should provision No. 2, as construed in conference    opin-
           ions Nos. 3082 and 3089, be applied to the appropriation    made for
           traveling expenses for your Department    when the traveling expense
           accounts incurred by your assistants   in representing   the Depart-
           ments listed in provision No. 3 7
 I
Hon. George   H. Sheppard,   Page   3, O-2258




                “3. If question No. 2 is answered  in the negative, please
           give your interpretation of the force and effect of provision No.
           3.”

                The question to be determined    is whether the appropriation   made
      to another State department   is available for the payment of the traveling
      and other expanses incurred by an Assistant     Attorney General in direct and
      immediate   connection-with the handling of a lawsuit or other matter for such
      State department.

                 Effect, of course,    is to be given to the intent of the Legislature.
      In ascertaining    that intent, the ordinary rules of statutory construction       are
      to be applied to the appropriation       bill. Because the Legislature    has appro-
      priated sums of money to the various State departments           for maintenance     and
      miscellaneous     items of expense, without any direction definitely indicating
     ,the limit of the authority of the department to make ~expenditutes therefrom,
      we are driven to the application       of general principles  to the appropriation
      bill.

                 As a matter of sound business and accounting principle,      an expense
      is properly   to be regarded   as that of the pr,oject which occasions  it and which
      directly receives   the benefit accruing from the expenditure.      This is true in
      government    as in private business enterprise.

                 The Attorney General is charged with the duty of law enforcement
      generally.    In the discharge    of his functions, he represents      the State directly;
      but in the discharge    of his functions he also serves as the legal representative
      and advisor    of various State departments       who are charged by law with the ad-
      ministration    and enforcement     of certain statutes.     Through the rendition of
      legal services,    he assists them in the performance         of their duties in that re-
      spect.   That the Attorney General’s       assistance   is had, however, does not al-
      ter the fact that the primary      duty of administration     and enforcement,    in such
      instances,   is on the particular    State department     served, and the cost involved
      that incident to the administration      and enforcement      of the particular  law.

                 The function of an appropriation    to a State department    is to provide
      funds for the discharge   of the duties imposed by law upon that department.
      Where a department     is charged with the duty of administering      and enforcing
      a particular  law, the institution, prosecution   and defense of lawsuits to that
      end is as much the duty of that department      as it is of the Attorney General,
                                                                                        ^        .




Hon. George   H. Sheppard,   Page   4, O-2258




       whose services  are enlisted     therein.  And the expense      incident   thereto   is
       an expense of.administering      and enforcing  such law.

                  It follows from what has been said that where a department charged
       with the administration     and enforcement     of a law enlists the services   of the
       Attorney General in order to perform         such duty, the expenses immediately
       incurred in connection with the performance          of the service   may be borne out
       of ~the appropriation   made to that department,      or out of the Attorney General’s
       appropriation.     The availability   of the appropriation   to defray such expense
       is determined by ascertaining       that the expense is incurred by permission       of
       the department head for the purpose of administering           and enforcing the laws
       committed to the department --not by the departmental            connection of the per-
       sons who incurs the expense in,rendering         the service   requested.

                 To illustrate:     The General Law provides for the appointment of as
       many aa’aix$ssistant      Attorneys    General by the Attorney General,      as may be
       requested by the Texas Liquor Control Board, to assist the Board in the en-
      .forcement of the liquor ‘laws.      (V ernon’s Revised Penal Statutes, Article. 666,
      Section 7(c).)   The law provtdes that the salaries       of these Assistants    shall be
       paid from the funds appropriate~d to the Liquor Board for the enforcement             of
      the Act, and stipulates that the Board shall fprnish the Assistants          office space
      and stenographic     service--but    the law makes no provision     for the payment of
      the expenses   incurred by the Assistants       in the performance    of their duties.

                   The 4,Sth Legislature,    in the departmental     appropriation   bill passed
       by it, listed these six Ass,istants     in the Liquor Board Appropriation.          They
       were employed and were subject to discharge            by the Attorney General,       ware
       supervised    and controlled by him, and were responsible          to him and not to the
       Liquor Board for the faithful and efficient discharge          of their duties.    These
      Assistant    Attorneys   General were employees         of the Attorney General,      not of
       the Texas Liquor Control Board.          Yet, under this state of facts, the expense
       incurred by these Ass.istants      in prosecuting    and defending suits’ for the Liquor
       Control Board were borne out of the Liquor Board appropriations,                which was,
       we think, in accordance     with the legislative    intention.   This was not because
       the Assistants    wer~e employees     of the Liquor Board, but because the expenses
       wara incurred directly and immediately          in connection with the administration
       and enforcement     of the liquor laws, which was the primary          responsibility    of
     Lthe Liquor Board, and to defray the expense of which the Liquor Board appro-
       priation was provided by the Legislature.

                 The same situation      existed   with reference   to the Unemployment          Com-
       pensation Commission.
Hon. George   H. Sheppard,   Page   5, O-2258




                 The last Legislature    listed all Assistant    Attorneys  General in
     .the Attorney General’s    appropriation,    their salaries    to be paid out of
      the General Fund.    This was done in order to enable the Attorney General
      to make use of the services     of Assistants    s.erving the Liquor Board, the
      Unemployment     Compensation     Commission,      and other departments     operat-
      ing out of special funds, for-the rendition of other services ,when deemed
      necessary   or expedient. yet without making the special funds, inequitably,
      bear all the salary cost when all of tbe Assistants’        time was ,not devoted
      to the work of that department.

                 No question of supplementing      an appropriation   ~is’,~involved~. There
     are  simply two appropriations      available   for defraying ,the same expenditure.
     The one,,may, only be expended with the approval of ,the Attorney General;
     the other only with the approval      of the department head.      The ,appropriation
     to the Attorney General is available       for law enforc,emeut generally;      the ap-
     propriation    to the department   is available    only forthe administration      and
     enforcement      of the particular laws committed to the jurisdiction        of that de-
     partment,     An expenditures from the one does not supplement the other.

                The paragraph    styled “Transfers    from Special~Funds”,    appearing
     in the general rider to the departmental      appropriation  bill passed by the
     46th Legislature,   does not purport to announc~e a contrary r.ule. ‘The purpose
     of such rider is to require    reimbursement     out of the special funds to the gen-
     eral fund for the cos.ts of legal services    and law:enforcement    work rendered
     by the Attorney General to the department financed out ~of the special fund,
     where such c~osts have been borne by the appropriation        to the Attorney General
     from the General Fund.       The ,language does not evince a’purpose to require
     that all the costs of legal services    and law enforcement    must be borne by the
     appropriation   to the Attorney General out of the GeneraJ’Fund.

               Briefly  stated, the situation is this: The appropriation       to the Attor-
     ney General   is for law enforcement     generally; the appropriation      to the de-
     partment is for administration     and enforcement   of a particular    law or laws.
     The appropriation    to the Attorney General may be expende.d only by and under
     his authority; the appropriation    to the other department~may      be expended only
     by and under the authority of that department’s     head. Each appropriation         com-
     plements, but does not supplement,      the other.

              We have undertaken        an expression    of our views upon this question
     with some hesitancy, because       it may appear    to some that we are sitting in
Hon. George    H. Sheppard,   Page   6, O-2258




     judgment upon a matter of interest to this department.          The interest, how-
     ever, is more~apparent      than real, si.nce our holding does not place funds ap-
     propriated   to another department under the jurisdiction       of this department,
     but’only’ permits such funds to be expended upon the approval of such other
     department.     In any event,‘we are required     by law to answer your question
     to the best of our ability.     In purwance   to this mandate, we have done so.
     The’ foregoing   represents    the considered   opinion of this department.

                                                      Yours   very truly

                                                 ATTORNEY      GENERALOF      TEXAS



                                                 BY

                                                                  Assistant
     RWF:PBP          ”




     ATTORNEY       GENERAL     OF TEXAS
                                                                   THIS OPINION
                                                                 CONSIDERED    AND
                                                                   APPROVED    IN
                                                                     LIMITED
                                                                   CONFERENCE.
