                                 November         30,   1951



Hon. C. H. Cavness                        Opinion        No.   V-1361
State Auditor
Austin, Texas                               Re:     Several    questions     concerning
                                                    the disposition      of soil conser-
                                                    vation   district   funds under
                                                    House    Bill 97, Acts     5lst  Leg.,
                                                    R.S. 1949, and House         Bill 190,
Dear      Sir:                                      Acts   52nd Leg.,      R.S. 1951.

                  The first   of the questions   which         you      have   submitted
for    our   consideration     reads as follows:

                 “1.   Should the total amount       to be repaid    the
          State General    Revenue    Fund by each District       as pro-
          vided in Section    5, House Bill No. 190, 52nd Legisla-
          ture, be construed     to be the total sum of money          paid
          to the District   as provided    for in both House      Bill No.
          97 of the 51st Legislature,      R.S.,   and House    Bill 190
          of the 52nd Legislature,      or will it be the unexpended
          sum reappropriated       to the District    only by House Bill
          No. 190 of the 52nd Legislature,         R.S.?”

                 In connection     with   this     question,    you     submit   the fol-
lowing:

                 “In regard    to question  No. 1, herein,   the State
          Soil Conservation     Board has advised     the various    State
          Soil Conservation      Districts’ Boards   of Supervisors
          that the total amount each District      will be required     to
          repay will be the amount of the unexpended         balance    at
          August   31st,  1951, that is reappropriated     by the provi-
          sions of House Bill No. 190.

                 “On page 2 of your Opinion  No. V-l 197 addressed
          to Governor  Allan  Shivers, you have stated  in part:

                 a ‘It is our opinion   that House   Bill No. 190, if it
          becomes     law, would be valid;    that the provisions    there-
          of are in pari materia     with the provisions     of House Bill
          No. 97; and that both Acts      should be construed     together
          to make a harmonious       whole.‘
Hon.   C. H.   Cavness,           Page   2 (V-1361)




                “In our audits     of the various     districts’      accounts
        and records,     we have found a considerable              variation
        between     the Districts’    unexpended     balances        that will
        result   in a relatively     small   amount being repaid by
        some Districts,       whereas    other Districts       will be re-
        quired    to repay a considerable        portion    or all of the
        money     they have received       from   the State,     if they pay
        only the amount       appropriated     to them by House Bill
        No. 190.     On the other hand, if Section          5 of House Bill
        No. 190 applies      to the amount appropriated            by both
        House Bill No. 97, 51st Legislature,             and House Bill
        No. 190,‘52nd     Legislature,      all Districts     would be re-
        quircd   to ultimately     repay the total amount           that has
        been appropriated        to them.”

                Sections  1 and 2 of House Bill 190,                 Acts   52nd     Leg.,
R.S.   1951,   ch. 497, p. 1206, read as follows:,

                “Section     1. The unexpended          balances     of all sums
        appropriated      to and granted       the several      soil conserva-
        tion districts     of Texas      for the fiscal    year ending Au-
        gust 31, 1950, and for the fiscal            year ending August 31,
        1951, are hereby        reappropriated        and granted      to such
        soil conservation        districts.     A soil conservation        dis-
        trict shall be eligible        to receive     grants   for each period
        of the biennium       after it has been duly organized             and a
        Certificate     of Organization       for the district      has been
        approved     and signed by the Secretary             of State.    All
        grants    to soil conservation        districts    shall be made by
        the State Soil Conservation           Board     based   on the Board’s
        determination       of equity and need of the district            apply-
        ing for the grant.

                 “Sec.   2.    Approval      of all grants   of assistance     to
        soil conservation          districts    as provided    in this Act
        shall be certified         to the State Comptroller        of Public
        Accounts      by the State Soil Conservation            Board.     Such
        certification      or approval        by the State Soil Conserva-
        tion Board,     presented         to the Comptroller,      shall be suf-
        ficient   authority      for the Comptroller        to issue his war-
        rants against       any appropriation         made for grants      to soil
        conservation        districts      and shall be also sufficient      au-
        thority    for the State Treasurer           to honor payment       of
        such warrants.

                *           ..
                    . . .

                Section          5 of House   Bill    190   reads,   in part,   as   follows:
Hon.   C. H.    Cavness,      Page    3 (V-1361)




                  . .: .’ It ,is further  provided    that each district
        receiving    funds under this Act shall pay five per cent
        (5%) of any sums received           as,rental   payments    on
        equipment      or machinery      under lease     to the State Treas-
        ury for deposit        in the General    Fund, until the funds re-
        ceived~by’a     district    under this Act shall have been re-
        paid in full.”

                  From    your statement          in connection      with your first
question,     it is obvious     that the State Soil Conservation              Board     in-
terprets     Section    1 of House Bill 190 as reappropriating                  the unex-
pended balances         of State appropriated           funds previously       allocated
to individual      soil conservation        districts      directly    to the districts
having such unexpended            balances       on hand at the end of the past
biennium.       We are in accord         with this interpretation.            However,
such unexpended         balance     may or may not be the total amount                  which
a district     will be called     upon to repay         under Section       5. There      re-
mained     in the State Treasury          at the end of the past biennium              an
unexpended       balance    ‘of the appropriation           previously     made to the
several     soil conservation        districts      by House Bill 97, Acts         51st
Leg;,   R.S.    1949,   ch; 540, p. 1000.          This    unexpended     balance    was
likewise     reappropriated        and granted        by House Bill       190 for alloca-
tion during      the biennium      to the various         districts    by the State Board
as provided       in Sections     1 and 2 above quoted.             Such grants     when
received     by the districts       will unquestionably           be funds received        “un-
der this Act” and must necessarily                  be included      in ascertaining       the
total to be repaid       under Section        5.

               We do not think that State appropriated            funds received
by individual    districts     under the provisions      of House   Bill 97 but
expended    prior    to the end of the past biennium         should be included
in determining      the amount to be repaid        under Section     5. Gnly funds
received   “under      this Act” are required       to be repaid.    Funds  ex-
pended prior     to the end of the last biennium         did not constitute    any
part of the “unexpended         balances”   which were reappropriated          by
House Bill 190.        In addition   to the excerpt    which you quote from
Opinion   V-1197      (1951),   we call your attention     to these additional
portions   of Opinion      V-1197:

                 “The caption     of House   Bill No. 190 states      that
        it is ‘an Act amending        House ,Bill No. 97, Acts      of the
        Fifty-first    Legislature,    Regular    Session,    1949.    . . .’
       ~The body of the bill does not state that it is amending
        said House Bill,      and in reality    does not do so except
        by necessary      implication    and then only as to certain
        provisions     of House Bill No. 97, Acts        51st Leg.,     R.S.
        1949,    ch. 540, p. 1000, that are in conflict        with the
        provisions     of House Bill No. 190, Acts         52nd Leg.,     R.S.
        1951.
.



    Hon.   C. H.   Cavness,    Page    4 (V-1361)




                    “It is our opinion that there is no fatal conflict
            between     the caption     and the body of House Bill         190.
            We have carefully         examined    the caption     of House     Bill
            No. 190 in connection         with the body of the bill and have
            concluded      that the Act constitutes      a complete      bill with-
            in itself and that the caption        is sufficiently    broad     to
            cover    the various     provisions    contained     in the body of
            the bill.     The portion     of the caption of House       Bill No.
            190 which states       that it is amending      House    Bill No. 97
            should be rejected        as surplusage.       1 Sutherland      on
            Statutory     Construction      (3rd Ed. 1943) 328.”
                       .’
                 _ Viewing      House Bill 190 as a complete             bill within it-
    self rather     than as an amendatory          act, we do not think that funds
    received    ‘under     this Act”    can be properly        construed     to embrace
    the sums received         and expended       under the provisions         of House
    Bill 97, a prior and entirely         different      act of the Legislature.        It
    is true that some       districts    will, as pointed out by you, be required
    to repay a greater        proportion      of the State funds which they have.
    received    than will others.        Nevertheless,       under our interpretation
    of Section    5, the requirement         for repayment       operates     prospective-
    ly only, rather     than retroactively.         Its fairness     lies in the fact
    that it is imposed       with .full notice;    its practicality,      in the fact that,
    being foreseen,      it may be provided         for.
                                                                                              <
                 Our answer  to your first question   precludes    consid-
    eration of your second, which is predicated     on the assumption      that
    Section 5 of House Bill 190 requires   repayment    by districts    of all
    funds received  under House Bill 97 and House Bill 190.

                    Your   third   question   reads    as follows:

                  “If a District    at August  31st.   1953, has on hand                :
            any part of the sums appropriated         by House Bill No.
            190 of the 52nd Legislature,      will such unexpended    bal-
            ance be required     to be refunded    to the General  Reve-
            nue Fund at that time?      ”

                   In replying    to your first question,     we pointed    out that
    the unexpended      balances    of funds which had been allocated         to dis-
    tricts  under House Bill 97 were included          in the reappropriation
    made by House Bill 190 of “the unexpended              balances   of all sums
    appropriated     to and granted     the several   soil conservation      districts
    of Texas    for the fiscal   year ending August       31, 1950, and for the
    fiscal  year ending August       31, 1951 . . .” Both these       unexpended
    balances    and all other funds which may be granted            to the individ-
    ual districts   as provided     by House Bill    190 remain     a part of the
    appropriation     made by House Bill 190 unless          and until they are
    properly    expended.     However,     such funds as are not expended          at
                                                                                              t
,




        Hon.   C. H.   Cavness,      Page   5 (V-1361)




        the end of the cu~rrent biennium       will revert     to the General     Revenue
        Fund.    This is so for the reason      that under Section       6 of Article
        VIII of the Constitution     of Texas   no appropriation       may be made for
        a longer   term than two years.       Therefore,      at the end of the two-
        year period     the appropriation    becomes     ineffective;    and any bal-
        ance remaining      therein   must necessarily      lapse.    Att’y  Gen. Ops.
        2941 (1940)    and V-316    (1947).

                        We next     quote   your    fourth      question    and   remarks     in
        connection     therewith:

                        “*ill  the five per cent (5%) of any sums        received
               as -cental payments       on equipment    or machinery,     as pro-
               vided in Section      5 of House Bill No. 190, 52nd Legisla-
               ture, apply to District-owned        equipment    operated    by the
               District     as well as to such equipment      leased   out to the
               landowners?

                      “With   reference   to question   No. 4, we have found
               that some    equipment   will be operated    by employees    of
               the District   and the landowner     charged   an agreed  sum,
               whereas    other equipment    will be operated    by the land-
               owner who will pay rental for the use of it.

                      “From    a practical    standpoint,    if the salaries    or
               wages   paid ,the District    employees~    during the perform-
               ance of the work were deducted          from    the total charges
               for it, the resulting    balance   would correspond        approxi-
               mately   to the rental    charges   made for that type of equip-
               ment operated     by the landowner.”

                        Section     5 of House     Bill   190    reads     as follows:

                       “To carry       out the purposes       of the soi~l conserva-
               tion district    program       as is provided      in the State Soil
               Conservation       Law, supervisors          may acquire       by lease
               or purchase      machinery        and equipment       and operate       such
               machinery      or equipment        or may furnish        same    under
               lease   or rental agreement          at prices     being currently
               charged     for such services;        provided,     however,      that the
               charge    in any particular        project    shall never     be less
               than the actual cost to the particular              district   for rea-
               sonable    rental,    labor,    maintenance,      depreciation       and
               replacement       of equipment.        It is further     provided     that
               each district      receiving     funds under this Act shall pay
               five per cent (5%) of any sums              received     as rental     pay-
               ments    on equipment        or machinery       under lease       to the
               State Treasury        for deposit     in the General       Fund, until

    c          the funds received
               have been repaid
                                          by a district
                                        in full.”
                                                            under this Act shall
.   .   .I




             Hon.   C. H.   Cavness,     Page    6 (V-1361)




                              This section     clearly   contemplates         two types of opera-
             tions.     In some instances       the district     will operate       the machinery
             and equipment,        procuring     the labor necessary          for such operations,
             and in other cases        the machinery       or equipment         will be leased     or
             rented to individual        landowners     who will operate          the equipment
             themselves       or otherwise      supply the necessary           labor for such op-
             erations.      It is true that if the salaries         or wages      paid employees
             or laborers       secured    by the district     for performing          the operations
             were deducted        from the total job charge          for a project,       the balance
             might be compared          to a rental    charge     for the equipment.          How-.
             ever,    in such cases      the agreement       between      the landowner       and the
             district     would ‘constitute    a contract     for the entire job or project.
             The consideration         or price paid by the landowner              would not, in
             either    legal or common        parlance,     be termed       a rental     payment.
             Since the Legislature         has expressly       limited     the sums from which
             five per cent is to be taken to “sums               received     as rental payments
             on machinery        or equipment      under lease,”        we are of the opinion
             that five per cent should not be deducted                from    sums received       for
             operations      conducted     by the district.

                                                SUMMARY

                              The total amount required            to be paid to the Gen-
                     eral Revenue       Fund under Section          5, House Bill 190,
                     Acts    52nd Leg.,    R.S.  1951,    ch.  497,     p. 1206, is the a-
                     mount of the soil conservation             district’s    unexpended
                     balance     of State appropriated        funds which was on hand
                     at the end of the past biennium,            plus the amount      of any
                     additional     State funds which may be granted              the dis-
                     trict during     the current    biennium        by virtue   of House
                     Bill 190.     Any unexpended       balance        of sums appropri-
                     ated and granted       to a district     under House Bill 190
                     will revert     to the General     Revenue         Fund August 3 1,
                     1953.     Tex. Const.    Art. VIII, Sec. 6. The requirement
                     that five per cent of sums         received        as rental payments
                     on equipment       or machinery       under      lease  shall be paid
                     to the State Treasury         does not apply to sums paid to
                     districts    by the landowner       for projects       conducted    by
                     the district.

             APPROVED:                                    Yours      very   truly,

             W. V. Geppert                                 PRICE       DANIEL
             Taxation Division                            Attorney      General

             Everett   Hutchinson
             Executive   Assistant                       %Vh.d&%%~                             ti
                                                           Mrs. Marietta             MC   regor Creel
             Charles   D. Mathews                                                            Assistant
             First  Assistant

             MMC/mwb
