          OFFICE OF THE AlTORNEY       GENERAL   OF TEXAS
                              AUSTIN




Bon.   be0.   B.   sheDP=‘&
Comptrollel,of F'iblio-Aooounts
Austin, Texas
Dear sir:
                                  opinion go. o-1672-A
                                  iie:Authorit? oi Llmltation of
                                      Payments Board to authorize
                                      expend.ituressupplementing
                                      a apeolfic‘Uiemof:appro-
                                      priation.      ~..,'..~
                                                       .\\   .I


          On IPovember17,.1939,-&&irering your let&* of
ZTovember10, 1939, this depmtment rendered Opinion ipo.
o-1672, vhereln it vss held-:th8tthe Board of Limitationof
Paymanta set up by the provlslon~of'3euate Bill 427, Acts
of tha 46th fsgialature,uaa Mthout the jurladiotlonor
authority to permlt t+uae of a-~.aurplua  in a special fund
for purposes for vhieh a apeoifio“appropristlon   has been made
by the Legfaleture..inauah mannerthat tha amount.available
for that ~peoifloFyp~osp'~s definite&yasoertsiaable..
                              \
          Since &m&ring t&t opinion, this department has,
upon its ovn Initiative,undertakm a re-exmalnatlonof the
question inv5lved thweln, and &a, after careful study aud
oonaldkr+lon ot the pk~blsm,,,.Feaohed the oomluafon that
              yein  aiul~erroneou      .
                  A
         /The geieral rider appended to Senate Bill 427, Aota
of thb 46th Laglslatulw,provides in part as Sollovar
      \
         l~ncb)The's&opriations herein provided are to
     be o&tmied as the msximum sums to be appropriated
     to and fc&.the several purposes nazed herein, and the
     smounta are intended to cover and shall cover the
     entire coat of the respective items, and the ssme
     ahsll not be supplementadfrom 8ny other source;    and,
     except AS othervise provided, no other e~endltwoa
     ah&l be m&de, nor shall any other obligatlon~be
     incurred by any department of this State, ...
Hon. Geo. H- Sheppard, Page 2


          "Llnitatlouof Payments. Except as othervia
     provided,whenever, by virtue of the provisions of
     this Act, Item are to be paid out of fees, rwceipta,
     special funds or out of other fuuda available for
     use by a depsrtaumt,it is the Intention of the
     Legislature to lisit expendituresout of said fees,
     reoaipta, special funds or other available ~funds
     to the purposes and in the amotmts itemized herein,
     and it is aa provided. If, however, the amount of
     the feea, receipts, special or other avallable funds
     herein rafarred to are pore thau sufficient to
     pay the itema herein designated to be paid there-
     frost,the depsrtment to vhich the said fees, re-
     ceipts, special fuuda or other available Fonda am?
     sppropvlatednag, If neceaaaryltoadequately perforu
     the functloua of said department, use any portiou
     of ,aaidsurplus fees, receipts, special funds or
     other available funds; provided, hovever, thst
     before doing so, the hasd of.auoh department ahall
     under oath make.applicationjointly to the Governor,
     the Attorney Geneal and the State Treasurer aetttig
     forth in detsll the necessity for using such sur-
     plus fees, receipts, special fuuda or other avsilable
     Punds and lteatlalnj~the purposes for vhich the aaue
    'we .tabe used ...
          OUP reconsiderationof th+a matter has convinoed us
that the interpretstlonheretofore placed upon these tvo pro-
visions by.the opinion referred to Is not such as is calculated
to oury out the design and intent of the Legislaturein
emoting the paragraph styled '%imitstionof Payments." Ye
believe thst in enrctiug the limitation of payments clause,
the lagislsturehad lnntl~~~thstif there ahouldbe anactusl
surplus on hand In a special fund, and If the department to
which the special fund is appropriated la able to demmatrate
to the Limitation of Payments Board that the functions of said
departaamt could not be adequately parfommd vlthout using a
portion or all of said surplus f&d, that the Llmltatlon of
Payaants Bosrd might have authority, upon proper application,
to authorize the use of a portion or all of aaid fund for
itemized purposes, even though the Legislaturehadpmvid8d
a definitelyasaertainableamount of money by itemizationfor
that specific purpose. In other vorda, we are of the opinion
that the Leglalstureintended to conPer upon the Limitation of
Payments Bosrd the authority to authorize addltlonal eqmU.l.-
turea by way of supplementing an item for vhloh specific p-b-
vision had been lEade by the Legislature , out of au actual surplus,
upon the showing oP the neceaslty, the Legislature apparently
realizing that situationsnight conceivablyarise vhereln its
Hon. Oeo. B. Sheppard, Page 3


estimate of the amount necessary for a particular purpose In order
to oercg out adequately the funotiona of a department might be
wholly lnsdequate for that purpose.
          It is therefore the opinion of this department that the
Llmitatlonof Payments Board has authority and jurlsdlctlonto
authorire expendituresout 0s au aatual surplus upon a showing
0s neo8aalt~ therefor,even though such expendituresmay Operate
to supplementan item for vhich a speelflo and definitelyaaeer-
talnable amount was provided by the Leg.lslature,and, therefore,
our opinion Ho. 0-1672 la hereby overruledand withdrawn, and
thla opinion la rendered in lieu thereoP.
          Ye are not to be understood,however, as holding herein
that the Limitation of'PaymentsBoard has the authmftg to
authorire the use of all or a portion of a surlpus in a special
fund for aupplmentlng a traveling expense item. Travellug
expenses, being governed by a peculiar and special provlalon
of the general rider appended to Senate Bill 427, Acts of the
46th Leglslstum, may not be supplementedin a&event, as held
in our Conference Opinion BO. 3089.
                                   Yours very truly

                                AT!l'OR~OglllBRALOPTEXM


                                         B. W. Falrotklld
                                               Assistant



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             !:TTORITEY
                     GENERAL OF TEXAS
