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                            THE    AITORNEY                  GENERAL

                                        OF       TEXAS

                                        AUSTIN     11, TEXAN


                                        October 11; 1957

                Honorable Price Daniel,           Opinion No. WW-275.
                Governor, State of Texas,
                Capitol Station,                  Re:       Whether a proposed Bill to
                Austin, Texas                               be submitted to the Special
                                                            Session of the Legislature
                                                            on October 14th requires
                                                            certification by the Comp-
                                                            troller of Public Accounts
                                                            under the provisions of
                                                            Section @a of Article III
                Dear Governor Daniel:                       of the Constitution of Texas.
                          You have requested an opinion concerning a proposed
                Bill to be submitted to the Special Session of the Legislature
                on October 14th. Your specific question is whether this pro-
                posed Bill requires certification by the Comptroller of Public
                Accounts under the provisions of Section &a of Article III of
                the Constitution of Texas.
                          The purpose of this legislation is stated in Section
                1 as follows:
                         "Section 1. PURPOSE OF ACT. The purpose of
                    this Act is to effectuate the mandatory terms and
                    provisions of Article 16, Section 59 (a) of the
                    Constitution of Texas to the end that the vital
                    water resources of the State will be conserved,
                    developed, stored, preserved and distributed in
                    a manner beneficial and useful to the people of
                    Texas and future generations. It is hereby
                    declared that this Act is essential to the ac-
                    complishment of such purpose. 1.tis declared,
                    further, that the conservation, development and
                    beneficial use of the waters of this State are
                    public rights and duties and are necessary to
                    protect and promote the health, safety and general
                    welfare of the people."
                            Subdivision (j) of    Section      3 of the proposed Bill
                   .ides:
                                                                 .’   .




Honorable Price Daniel, Page 2 (w-275).


         "(j) TRANSFER OF FUNDS TO PLANNING DIVISION.
    Funds heretofore appropriated to the Board of Water
    Engineers in line Items 29 through 32 of House Bill
    133, Acts 55th Legislature, 1957, are hereby trans-
    ferred to the Planning Division to be used for the
    purposes stated in such line items, and the Board
    may transfer any other of its appropriated funds
    to the Planning Division necessary to accomplish
    the purposes of this Act.
          "That portion of said House Bill No. 133
     immediately preceding Item Number 33 in the appro-
     priation to the Board of Water Engineers and read-
     ing 'Watershed Planning - None of the money appro-
     priated in Items 33 through 39 below for Watershed
     Planning shall be.expended until and unless the
     Constitutional Amendment proposed by H.J.R. No. 3,
     of the 55th Legislature, is duly adopted by the
     voters of Texas' is hereby repealed. The sums
     appropriated in Items 33 through 39 of the appro-
     priation for the Board contained in the said House
     Bill No. 133, totaling $100,240 for the current
     biennium, are hereby transferi.edto the Planning
     Division in a lump sum to pay the cost of perform-
     ing the duties Imposed by this Section 3, including
     wages, salaries and other expenses, for the remain-
     der of the current biennium ending August 31, 1959.
          "The sum of $500,000.00 appropriated to the
     Texas Prison System in that portion of House Bill
     No. 133, Chapter 385, General and Special Laws of
     the 55th Regular Session, page 1051, entitled
     'Texas Prison System--Contingency Appropriation',
     is hereby transferred to the Planning Division of
     the Board of Water Engineers to be used in accomp-
     lishing the purposes of this Act."
          Section 49a of Article III of the Constitution of
Texas prohibits the valid enactment of any bill containing an
appropriation which does not contain a certificate by the
Comptroller of Public Accounts that the amount appropriated
is within the amount estimated to be available in the affected
funds. Attorney General's Opinion WW-102 (1957). If sub-
division (j) of Section 3 of the proposed legislation consti-
tutes an appropriation of money, Section 49a of Article III
would require a certification of the Comptroller before the
proposed legislation could be enacted into law.
Honorable Price Daniel, Page 3 (m-275).


          Section 6 of Article VIII of the Constitution of
Texas provides:
          "No money shall be drawn from the Treasury but
     in pursuance of specific appropriations made by law;
     nor shall any appropriation of money be made for a
     longer term than two years, except by the first
     legislature to assemble under this Constitution,
     which may make the necessary appropriations to carry
     on the government until the assemblage of the slx-
     teenth Legislature.'
          This constitutional provision controls all appropria-
tions from the State Treasurv and monev not snecificalls annro-
priated by the Legislature &not   be withdrawn from the"Trkasury.
Pickle v. Finley 91 Tex. 484, 44 S,W. 480 (1898); Lightfoot v.
Lane, 104 Tex. 447, 140 S.W. 89 (1911); Attorney General's
Opinion WW-102 (1957).
          In considering a similar question, it IS stated in
Attorney General's Opinion O-6193 (1945) that a provision
relative to the transfer of unexpended balances "is merely an
alternative method of allocation. This provision in no way takes
additional money out of the State Treasury; rather it merely
permits the funds which have already been taken out of the
Treasury by Section 6 of House Bill No. 3, and by Section 1 of
Article 13 of House Bill No. 176, to be.expended for purpos,es
other than those for which they were initially encumbered.
          The provisions of subdivision (j) of Section 3 of
the proposed legislation above quoted does not take additional
money out of the State Treasury as provided in Section 6 of
Article VIII of the Constitution of Texas. It merely permits
the funds which have previously been appropriated to be expended
for purposes other than those for which they were initially
appropriated and, therefore, does not constitute an appropria-
tion within the meaning of Section 49a of Article III of the
Constitution of Texas.
          In addition to making allocations and t~ransfers,
subdivision (j) of Section 3 contains the following additional
language:
          "In addition to any funds made available by
     the Legislature, the Planning Engineer with the
     approval of the Board is authorized to contract
     for, receive or accept money from anyone, or from
     any agency, political subdivision, or other legal
     entity, and may then use such money to carry into
Honorable Price Daniel, Page 4 (WW-27.5).


     effect the duties required by this Section.
     The money thus obtained shall be deposited by
     the Planning Engineer in the State Treasury as
     a special fund and said money may be used by the
     Planning Division for any of Its purpose8, in-
     cluding wages, salaries and other expenses."
          These provisions require the deposit into the State
Treasury of moneys received from individuals, agencies, politl-
cal subdivision, and other legal entities, and provides that
such money may be used by the Planning Division for any of its
purposes including wages, salaries and other expenses. Since
the purpose of an appropriation is to make available for expen-
diture moneys In the Treasury, it is our opinion that the last
paragraph of subdivision (j) of Section 3 constitutes an
appropriation requiring the certificate of the Comptroller of
Public Accounts under the provisions of Section &a of Article
III of the Constitution of Texas. The proposed legislation
submitted with your request therefore, will require the certifi-
cate of the Comptroller of Public Accounts provided for in
Section @a of Article III of the Constitution of Texas. How-
ever, inasmuch as the Legislature only appropriated the amount
of the funds that will be deposited In such special fund, the
Comptroller would be required to certify that such sums so
appropriated are available.



                            SUMMARY


                 Proposed legislation transferring and
          allocating various moneys appropriated by
          House Bill 133, Acts of the 55th Legislature,
          1957, does not constitute an appropriation
          requiring the certificate of the Comptroller
          of Public Accounts that the amount appropriated
          is within the amount estimated to be available
          in the affec?ed funds.   However, the provisions
Honorable Price Daniel, Page 5, (WW-275).


            providing that money received and deposited
            in the State Treaaury may be used by the
            Water Resources Planning Commission created
            by the proposed legislation constitutes an
            appropriation of money in the State Treasury
            and would require the certificate of the
            Comptroller of Public Accounts. The Comp-
            troller will be required to certify that
            this fund Is available.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas



                                      Assistant
JR:zt:pf
APPROVED:
OPINION COMMITTEE
Geo . P. Blackburn, Chairman
W. V. Geppert
B. H. Timmins, Jr.
C. K. Richards
REVIEWED FOR THE ATTORNEY GENERAL
By:   Wm. V. Geppert
