Hon. W. 0. Reed                  Opinion No. V-268
Speaker of the House   ‘.
Capitol Building               ~. Re:   Present status of seven
Austin, Texas                           Appropriation Bills cer-
                                        tified as exceeding antici-
                                        pated revenues.

Deur Mr. Speaker:

           Hon. George H. Sheppard, State Comptroller, has for-
warded to us your letter of June 16, 1947, addressed to hfm and           -
requesting &at he seek an opinion as to the status of certain Ap-
propriation Bills and your duties with reference to filing same.
You directed the request through the Comptroller under the im-
pression that you were not entitled to an opinion under Article
4399, Since the opinion request directly concerns the duties of
your office aad matters within your jurisdiction, it is our opin-
ion that you are entitled to this opinion as the head of one of the
branches pi the Legislative Department of our government. There-
fore, reply is made direct to you with a copy to the Comptroller.

            Your inquiry calls for our ruling as to *the status” of
House Bills II, 61. 210.237, 321, 384, and 455 which were returned
to you ‘at various times on June 6.1947, duly certified by Mr. R.S.
Calvert, Aetfng Comptroller of Public Accounts, that amounts ap-
propriated in each of the bills would, exceed available funds of the
General Revenue.* Also you ask what course you should follow lin
officially filing them under Section 49s of Article III
                                                     ‘, of the Coasti-
tution. ”

       i The pertinent portion of Section 49a of Article     III of the
Terns Constitution provides wasfollows:

           “From and after January li 1945, save in the case
      of emergency and imperative public necessity and with
      a four-fifths vote of the total membership of each House,
      no appropriation in excess of the -cash and anticipated
      revenue of the funds from which such appropriation is
      to be made shall be valid. From and after January 1,
      1945, no bill containing an appropriation shall be coa-
      sidered as passed or be sent to the Governor for con-
      sideratron untrl and unless the Comptroller of Publm
    Hon. W. 0. Reed - Page 2



          Accounts endorbes his certificate thereon showing
          that the amount appropriated is within the amount es-
          timated to be available in the affected funds. When
          tie Comptroller finds an appropriation bill exceeds
          the estimated revenue he shall-endorse such fhding
          thereon and return to the House in which same origi-
          nated. Such information shall be immediately made
          known to both the House of Representatives and the
          Senate and the necessary steps shall be taken to bring
          such appropriation to within the revenue, either by
          providing additional revenue or reducing the appro-
          priation.” (Emphasis supplied)

                The plain intent of this Constitutional Amendment was
    to prevent the Legislature from passing appropriation bills in ex-
    cess of the anticipated amount of revenue that would be evailable
    to pay such expenditures, except in cases of emergency and im-
    perative public necessity with a four-fifths vote of the total memi
    bership of each House. It is called the “pay as you go* or “anti-
    deficit financing* Amendment. and was designed to keep the Stats
    on a.cash basis with a balanced budget.

               All of the sevenBills now under consideration contain
    appropriations, with a combined total in excess of $4,800,000.   All
    passed the House prior to May 19. They passed in the Senate in
    the closing days. June 4 and 5, after the Comptroller’s latest es-
    timate reflected that funds would not be available.

                 Each~of the bills failed to receive the vote of four-fifths
    of the total membership of the House of Representatives on final
    passage or on final concurrence in Sena* amendments.          Only one
*   of the bills, ‘H.B. 321 (Junior College Bill), received a four-fifths
    v&s of the total membership of the Senate. No record vote was
    taken fn the Senate on the remaining Bills except H.B. 455 (soil
    cwnservation), which did not receive the required four-fifths.       None
    of&e   Bills received a four-fifths vote of the membership of both
    H-es.      Each bears the Comptroller’s certificate that it ‘exceeds
    tluj amount estimated to be available.”

               Therefore, to determine the present status of these Bills,
    we need look only to the plain and unambiguous words contained in
    th second sentence. second paragraph, of Section 49a, Article III, of
    the Texas Constitution, which states that under such circumstances
    em bill containing an appropriation shall be considered as passed
    or be sent to the Governor for consi’deration until and unless the
    tintroller    of Publrc Accounts endorses his certificate thereon
     slum&g that the amount appropriated is within the amount estimat-
    ed to be available in the affected funds.” These Bills do not have
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         Hon. W. 0. Reed - Page 3



         the certificates which are required before they shall be consid-.
         ered as passed.   On the contrary, they have certificates that each
         of the appropriations exceeds the estimated available funds. Under
         the above constitutional provision, such a certificate amounts to a
         practical “veto” af a BiIl. Upon making such a certificate, the
         Comptroller is required to return a Bill to the House in which it
         originated and to inform both Houses. Thereupon, the Constitution
         provides that ‘the necessary steps shall be taken to bring such ap-
         propriation to within the revenue, either by providing additional
         revenues or reducing the appropriation.” As held in our Opinion
         Number V-208, the Legislature has anothtr alternative -- the pas-
         sage of the Bill with an emergency provision by a four-fifths vote
         of the total membership of e&h House after it is returned with the
         adverse certifioate from the CamptroIler.    This amoimts to an
         ‘override” of the practical ‘constitutional veto* rtqhired of the
         Comptroller., None of these actions were taken by either the House
         or Senate. In fact, according to your letter, the late final passage
         of these Bills caused their return from the Cemptrmller to be too
         late for further action.

                     Accordingly, in their present status with “no funds’ eer-
         tificates fiom the Comptreller, these Bills are dead. In the words
         of the Coa$titution, they are not “considered a8 passed.”

                    All of these Bills-include very meritorious projects
         which would be highly desirable for the State at large and the par-
         ticvlsr cmnmunities affecttd thereby. This office has received
         numerous requests from interested citizens that we find a legal
         way to hold these Bills valid and subject to consideration by the
         Governor. In accordance with a fundamental rule of statutory con-
         struction, we have examined and studied these Bills and the consti-
         tutional provisions with the purpose of resolving spy and all doubt
         in favor of the validity of the Bills. Howevt+, in view of the Comp-
         troIIer’s certificate now affixed to each of the BiIls, the plain and
         simple words quoted above from the Constitution leave no doubt te
         be resolved in favor of their validity.

                    It has been suggested that the Comptroller may have the
         legal authority to revise his estimate and recall MS certificate be-
         fare the twenty days expire for consideration of Bills by the Gover-
         nor after adjournment of the Legislature.   Others have suggested
         that you may have the legal authority to ret&% the Bills to the.
         Comptroller for a new certificate in case he finds additional reve-
         nue available before the expired twenty days after adjournment of
         the Legislature.   These suggestions are followed by the argument
         that the Bills could be “considered as i&ssed” if the Comptroller
         finds additional money and makes new certificates to such effect.
         Others contend that when the Comptroller once returns the Bills
Hon. W. 0. Reed - Page 4



to the Legislature with a certificate of -no funds available” and
the Legislature takes no further action thereon before adjourn-
ment, that the Bills cannot be returned to the Comptroller for
subsequent action. It is unnecessary for us to pass upon the hy-
pothetical questions involved in these suggestions and arguments.
It is our policy to pass upon such questions only when and as~they
arise. A decision upon such questions before they arise would be
based upon too many *ifs,” conditions, and speculations to be worth
anything on a future fact situation which may or may not arise.
This policy is especially proper with reference to the constitution-
al provision under consideration because it may well be that the
next Legislature will want to make its own interpretation and pass
statutory procedure for future guidance.

            Upon the fait situation now before us, we believe that
our answer on the present status of the Bills is sufficient for the
purposes stated in your letter. If tbis present status af the Bills
is the same at the expiration of twenty days after adj.ournment of
the Regular  Session of the Fiftieth Legislature, it is our opinion
that you will be justified in considering the Bills the same as if
they had not passed, At that time you will be safe in filing them in
the same m-r       as other Bills which failed of final passage in
time to be presented to the Governor for his approval,

                             Sdh4MARY
                             - --.-.--_   -

           Section 4933, Article III of the Texas Constitution
     provides that *PO bill containing an appropriation shall
     be considered as passed or be sent to the Governor for     ~.
     consideration until and unless the Comptroller of Pub-
     lic Accounts endorses his certificate thereon showing
     that the amount appropriated is within the amount esti-     ’
     mated to be available in the affected funds,” except in
     ease .of emergency and imperative public necessity with
     four-fifths vote of the total membership of each Houos.    ~,
     So long as the seven House Bills which were returned
     by the Comptroller on the final day of the Fiftieth Leg- ”‘-
     islature. Regular Session, contained certificates that
     their appropriations were in excess of estimated reve-
     nue,.they shdl not be “considered as passed” (none hav-
     iug received the necessary four-fifths vote of eachHouse).
     If such present status is the same at the termination of
     the twenty day period for consideration by the Governor
     after adjournment, the Bills should be filed the same as
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            Hon. W. 0. Reed - Page 5



                  other Bills which failed of final passage in time for ap-
                  proval by the Governor.


                                             Sincerely,




                                             Price Daniel
                                             Attorney General


            PD:mj: sl




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