                             HE         J~TFORNEY.GENERAL
                                                    OFTEXAS




Honorable          Bob        Bullock                                Opinion           No.     1100
secretary          of state
State     of Texas                                                   Re:         Authority               of Legislature                to ap-
Capitol     Building                                                             propriate               money          at a future           date
Austin,         Texas        78711                                               to pay       expenses                already          incurred
                                                                                 in necessary                preparations                by
                                                                                 county        committees                     of political
                                                                                 parties           for    holding             primary         elec-
Dear      Mr.      Bullock:                                                      tions.


                 Your        March         23,      1972         request        for    an opinion            asks        whether          at a
future     time        the Legislature                may          validly       appropriate               money              to pay    ex-
penses      already           incurred            in preparation                 for     primary           elections             by county
committees             of political              parties.           It is our          opinion           the Legislature                may
not validly        make          such      an appropriation.


                 The     State       Constitution                requires         as     a requisite              to expenditure                of
state     funds        not only       an appropriation,                      but also         pre-existing                    law.      Article
III,    Section        44,    provides:


                               “The        Legislature                           shall       not grant            .    . .
                by appropriation                    or otherwise,                 any amount               of money
                 out of the Treasury                      of the State,               to any individual,
                 on a claim,            real        or pretended,                when        the     same             shall
                not have            been    provided              for     by pre-existing                  law;        . .     , I’


                 In the recent             opinion          of the        Texas        Supreme             Court          in Bullock           v.
Calvert         (No.     B-3245,           March            8,    1972)      the Court             stated      in reference                to
your     attempt         to provide              a substitute             for    the unconstitutional                         filing    fee
assessment              system        of financing,

                               7,           no specific                 commission             to underwrite
                the election            costs        can be implied                    in the face           of those
                 contrary           enactments                      . ” (opinion,             p.     11). *



+                Page        references             are     to the unpublished                     opinion            of the Court.

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Honorable          Bob    Bullock,           page       2       (M-1100)




The   Court        observed          (opinion,           pp.     11,        12):


                               “It may       be true          that those             parties        are      unable
              to raise          sufficient         funds       by their             own devices.               And
              it may         well    b e that the only                 other         alternative             is an
              expensive             special        session          of the Legislature,                      which
              could       come       as    a burden            ,upon its           members,             requiring
              them       to meet          a difficult          problem              in a brief         and at an
              inopportune             time.         However,                these      are     considerations
              which       we cannot              reach       with      out assuming                 to ourselves
              what       the    Texas        Constitution              does         not allow         us.       That
              Constitution            requires              legislative             authorization             and ap-
              propriation            for     the    expenditure                of public           funds.      ”


              For      the     same        reasons           that    state         funds     could        not then         be   spent
by you, no one may now do so.     There                                     is no legislative                 authorization.              There
are two necessary elements,   legislative                                      authorization                 -and appropriation.                 It
is true     that     the Court            said     (opinion,           p.     7):


                              “We     hold       that    it lies       within         the discretion               and
              power          of the Legislature                 to appropriate                  state        funds       for
              this     purpose              . . ”


              There          must     also       be authorization.                     To      read       the Court’s           opinion
otherwise          is to remove            from         the Legislature                 their        discretion           to determine
whether      the funds          of the State             of Texas            are     to be expended                 for    that purpose.
In rejecting         your      arguments             in the recent                  case,      cited      above,          the   Court     said
(opinion,      p.     11):


                              “Secondly,            the effect          of this         degree         of implied
              authority          would        be to give            the Secretary                  of State        the
              decision          on whether              or not       state         funds     should          be used
              for    party       primary           elections           and,         if so,     for     what        par-
              ticular         expenses           and to what            extent.             This      would        be an
              unconstitutional                delegation             of legislative                power       in vio-
              lation      of the      separation               of powers             section         (Art.      2, 8 1)
              of the Constitution.                  ”       (Emphasis               added.     )




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    I

.


        Honorable          Bob     Bullock,         page        3        (M-1100)




                      Present          state      statutes          regulate        many       activities,         including      primary
        elections.          Expenditures                incident        to primary         elections         made        by certain     of-
        ficers     of the political              parties        do not       signify     a legislative             intent     to authorize
        expenditures             of state      funds.           Only     the Legislature             may      make       the choice;
        only     the Governor              may     call       the Legislature            for    a special          session.


                                                              SUMMARY


                                     The     Legislature               may     not validly        appropriate
                      funds        in the future              to pay     expenses        presently           incurred
                         in preparation            for        primary        elections         by county       com-
                      mittees         of political             parties       but not “provided               for    by
                      pre-existing               law.     ”




                                                                                           D C.      MARTIN
                                                                                    ey General         of Texas


        APPROVED:
        OPINION           COMMITTEE


        Kerns      Taylor,         Chairman
        W. E.      Allen,        Co-Chairman


        J. C.     Davis
        Rex      White
        John     Reeves
        Houghton          Brownlee


        SAMUEL            D.    MCDANIEL
        Staff    Legal         Assistant


        ALFRED            WALKER
        Executive          Assistant


        NOLA       WHITE
        First     Assistant




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