                       E   AXTOWNEY              GENERAL
                               OF     TEXAS




                                August 22, 1972

Honorable Robert S. Calvert            Opinion No.    M-l 191
Comptroller of Public Accounts
State of Texas                          Re:    Constitutionality of Section 19,
State Finance Building                         Article V, Senate Bill No. 11,
Austin, Texas 78774                            R. S. , 62nd Legislature,  1971

Dear Mr.    Calvertz

         You have requested our opinion of the constitutionality of Article
V, Section 19 of the current General Appropriation Bill (Acts, 62nd Leg.,
R. S. 1971, ch. 1047, p,. 3804. ) That section reads as follows:

                  “Sec. 19. Cooperation for the General Welfare.
           The Executive departments and agencies of the State,
           when requested by the Governor, are authorized to
           transfer and to use available moneys appropriated in
           this Act for the purpose of rendering all practical
           assistance to the Governor or to State Departments and
           Agencies designated by him in making surveys and in-
           vestigations and taking necessary action resulting there-
           from, in the public interest; or for such other purposes
           as will aid the economic growth and general welfare of
           the State; and for civil defense and disaster relief func-
           tions as authorized by State law; provided, however, that
           copies of such requests for transfer and notice of the
           Governor’s action on such requests, shall be filed with
           the Legislative Budget Board. ”

This section attempts to authorize, upon request of the Governor, trans-
fers of appropriated funds from the agency to which the appropriation is
made to another agency. In our opinion the section is contrary to the State
Constitution and is invalid.




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Honorable Robert S. Calvert,   page 2     (M-1191)



          There is no authority in the Constitution which authoriees the
Executive Department or its state agencies to act for the Legislature by
saying what agencies may spend what money. To the contrary, the Texas
Constitution, Article II, Section 1, specifically prohibits the Executive
Department from exercising power properly attached to the Legislative
Department.    Furthermore, Article VIII, Section 6, Constitution of Texas,
prohibits the drawing of money from the Treasury “but in pursuance of
specific appropriations made by law, ” and it has been held that this pro-
vision of the Constitution may not be ignored or evaded. Pickle v. Finley,
91 Tex. 484, 44 S. W. 480 (1898); Cherokee County v. Odom, 297 S. W.
1055 (Tex. Civ.App.   1927, rev’d on other grnds., 118 Tex. 288, 15 S. W.
538); National Biscuit Co. v. State, 134 Tex. 293, 135 S. W. 2d (1940); 52
Tex. Jur. 2d 747, State of Texas, Sec. 37.

          Under the constitution and statutes of Texas, the legislature is
the sole judge of the need and purpose for expending the state’s money; by
whom it shall be expended; and the amount to be expended, subject only to
the veto of the Governor.   The legislature cannot delegate this legislative
power to the executive department of government.      Texas Constitution, Ar-
ticle II, Section 1. The Governor’s sole power concerning appropriations
is the power to veto. This power is limited by time and in method of exer-
cise.   Texas Constitution, Article IV, Section 14.

          Under Section 19 of the Appropriation Bill, the legislative powers
to determine purposes and amounts of appropriations are transferred to
the executive department of government in violation of Article II, Section
1, Texas Constitution.    These legislative functions are non-delegable, and
the legislature cannot authorize the Executive Department and state agencies,
at the request of the Governor to ‘Ire-appropriate” state funds once before
appropriated by it to another agency for other purposes.    In effect, unde,r
Section 19, the purpose declared by the Legislature in the Appropr’iation
Bill is completely changed, and Section 19 amounts to a blank check to the
Executive Department to make an appropriation or reappropriation.       “It
is not what has been done but what can be done under a statute that deter-
mines its constitutionality. ” See, State v. State Board of Finance, 69 N. M.
430 P. 2d 925, 932-933 (1961), ant cases there cited.




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Honorable Robert S. Calvert,     page 3      (M-1191)



           “No law shall be passed, except by bill” (Texas Constitution, Ar-
ticle III, Section 30) and, “No money shall be drawn from the Treasury
but in pursuance of specific appropriations made by law” (Texas Constitu-
tion, Article VIII, Section 6. ) A power lodged in the Governor to trans-
fer funds contrary to their appropriated purpose for unspecified purposes
and in unspecified amounts is not a specific appropriation.  An appropria-
tion by the Governor is not “by bill” and therefore not a law in and of itself.

          In view of the foregoing considerations, we must hold that Section
19 of Article V of the current General Appropriation Act is invalid and un-
constitutional.

                               SUMMARY

                Article V, Section 19 of the current General
         Appropriations Bill is an unconstitutional delegation
         of legislative power to the Executive Department of
         government and is invalid.




                                            ey General of Texas

Prepared by Kerns Taylor
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

W. E. Allen,   Acting Chairman

Sam Jones
J. C. Davis
John Grace
Ralph Rash




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Honorable Robert S. Calvert,   page 4     (M-1191)




SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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