                       The Attorney               General of Texas
                                        October        16,   1979
MARKWHITE
Attorney General


                   Honorable Harvey Davis                      Opinion No.   .m-6   9
                   Executive Director
                   Texas Department of Water Resources         Re: Failure      of   the     66th
                   P. 0. Box 13087, Capitol Station            Legislature to fund the Office of
                   Austin, Texas 787ll                         Public Interest in the General
                                                               Appropriations Act.

                   Dear Mr. Davis:

                          You have requested our opinion in reference to the failure of the 66th
                   Legislature to fund the Office of Public Interest. Section 5.181 of the Water
                   Code creates an office of public interest to insure that the Texas
                   Department of Water Resources promotes the public interest. The Office is
                   headed by a public interest advocate appointed by the commission and the
                   board. He is to be a party to all proceedings before the board. Water Code
                   s 5.181(c).  A bii to repeal this section was introduced in the 66th
                   Legislature but failed to pass. The department’s budget request for fiscal
                   years 1980-81 included funding for the Office of Public Interest, but the
                   legislature failed to include an item for that purpose in the General
                   Appropriations Act. You ask whether the department may fund the Office
                   of Public Interest by transferring available state appropriated monies into
                   the Office of Public Interest Program.

                         Even though the appropriations act does not include a specific item to
                   fund the office of public interest advocate, there is no prohibition against
                   spending funds for that purpose. Indeed, there has never been a specific item
                   of appropriation for that office.    See Acts 1977, 65th Leg., ch. 872, at
                   2986-2991. During the past bienniumhe       office was funded from a general
                   administrative account. Since section 5.181 of the Water Code requires that
                   the public interest advocate be a party to all proceedings before the board,
                   we believe the board is obligated to appoint a public interest advocate and it
                   may fund that position from any appropriations available for that purpose.
                   Attorney General Opinion H-2ll (1974). Your specific question is phrased in
                   terms of transferring funds to the office of public interest function;
                   however, there is no necessity that the office be treated as a separate
                   expenditure item. So long as the funds for the office come from a single
                   appropriations item, no question of fund transfer need arise.

                         In light of our answer to your first question, we need not address your
                   second question which involves the effect of a failure to have a public
                   interest advocate.




                                                  P.     213
Honorable Harvey Davis    -   PageTwo   (MW-69)



                                    SUMMARY

           The Department of Water Resources is required to have an office
           of public interest advocate.




                                          Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by C. Robert Heath
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
Rick Lowerre
William G Reid
Bruce Youngblood




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