-   ’




                                      September    18. 1953


        Hon. Robert S. Calvert
        Comptroller   of Public Accounts
        Austin, Texas
                                                  Opinion No. S-l00    .
                                                                   . I
                                                  Re: Several questions ,respecting the
                                                       maximum travel expense allow-
                                                       ance of officers and employees
                                                       of the Texas Employment    Com-
        .Dear   Mr.   Calvert:                         mission.

                         We refer to your request for our opinion on the following
        questions     concerning the general appropriations act now in effect:

                         ‘1.  The applicability   of the expense account
                requirements    in Section Sj, Article VI, House Bill
                111 (now Chapter El), Acts 53rd Legislature,       1953,
                to offic~ers and employees     of Texas Employment    Com-
                mission.

                          “2. The applicability   of Section 8k. Article
                VI, House Bill 111 (now Chapter 81). Acts 53rd Leg-
                islature,    1953, to officers and employees   of Texas
                Employment       Commission    as respects the reimburse-
                ment limitations     there fixed.

                           “3. The applicability   of Section 8k. Article
                 VI, House Bill 111 (now Chapter 81). Acts 53rd Leg-
                ,islature,    1953, to officers and employees    of Texas
                Employment        Commission    as respects  the require-
                 ment for receipts.

                        “4. The legality of reimbursing     laundry,
                cleaning and pressing charges.    and tips expended
                by Texas Employment      Commission   officers and
                employees   while traveling in the discharge    of their
                duties for the State of Texa~.~:

                         III a recent opinion we held that federal funds received by
         this State to cover administrative     expenses of the Texas Employment
         Commission     (the Unemployment      Compensation   Administration   Fund) are
         in the State Treasury      within the~meaning of Article  VIII, Section 6 of the
         Texas Constitution and must be appropriated        by the Texas Legislature   in
                                                                                 .   .




Hon. Robert    S. Calvert,   page 2 (S-100)




order to be available for use. Att’y Gen. Op, MS-13 (1953).     Subsequently,
the Fifty-third Legislature  appropriated those funds for the present bien-
nium. All of your questions concern what terms or limitations      were im-
posed by that Legislature.   In substance you ask whether or not the Com-
mission is subject to the travel expense reimbursement    limitations  im-
posed by Chapter 81 on most State agencies by virtue of the general rid-
ers pertaining to travel expense contained in Article VI.

               There can be no doubt about the applicability             of Article   VI;
Section 8 travel restrictions       to most State agencies.        This follows from
the general terminology       of Section 8 (“These provisions         with exceptions
shall apply to all officers and employees          who are reimbursed        for trav-
eling expenses from money appropriated             in this act-).    It also follows from
the general law directive       contained in Article     6823, Vernon’s      Civil Stat-
utes (“The traveling and other necessary            expenses incurred by the vari-
ous officers,  assistants,     deputies, clerks and other employees            in the var-
ious departments,     institutions,    boards, commissions        or other subdivisions
of the State Government.       in the active discharge       of their duties shall be
such as are specifically      fixed and appropriated       in the General Appropria-
tion Bills providing for the expenses         of the State Government        from year
to year”).

               But, in our opinion, the special rider accompanying      the ap-
propriation of the Unemployment      Compensation     Administration  Fund in
Chapter 81 makes travel expense reimbursement           paid from that appro-
priation one of the “exceptions”    to Article VI. Section 8. The appropria-
tion and special rider referred    to are as follows:

                “All moneys granted to this State by the Federal
       Government for the administration    of the Unemployment
       Compensation    Act or which are now on deposit to the cried-
       it of any funds maintained by the State Treasurer    for the
       Texas Employment     Commission   and any moneys rec,eived
       for the credit of such funds are hereby~ appropriated   for
       the purposes authorized by the provisions    of the Texas Un-
       employment    Compensation  Act and/or for the purposes for
       which such moneys were granted.

               “In order to comply and conform with the terms of
       Federal laws and regulations    and standards under which
       such moneys are granted, notwithstanding      any other pro-
       visions of thisAct,  moneys granted for administration
       shall be expended in accordance    with the terms of the Tex-
       as Unemployment     Compensation   Act, the standards of the
       Bureau of Employment     Security and/or United States Em-
       ployment Service or successors.     and the rules or regula-
       tions adopted by the Texas Employment       Commission    to
       meet such standards;   out of State, travel expense paid solely
       from Federal grants and ,made in accordance      with the Fed-
       eral standards~ as being necessary    for proper administration
Hon. Robert       S. Calve&   page 3 (S-100)




         of the Unemployment       Compensation     Act shall not require
         approval by the Attorney General; travel expense and. sal-
         aries of the employees       of the Texas Employment      Commis-
          sion and Members      of the Commission      shall be paid in ac-
         cordance with agreements         made between the Commission,
         the Bureau of Employment         Security and/or the United States
         Employment      Service or successors,      which agreements     shall
         provide for salaries     within the limits herein prescribed      and
         in conformity    with Federal standards of a Merit System for
         Personnel    Administration.      Prior to the submission    of any
         budget or request for funds to any Federal agency such bud-
         get or request shall be submitted to and filed with the Gov-
         ernor.   It is provided further that if any of the requirements
         of this Act are contrary to any of the terms of Federal leg-
         islation or regulations     under which moneys are granted to
         the Texas Employment        Commission,     such requirements
         may be suspended with the written consent and approval
         of the Governor.     . . .” Sec. 1, Art. III, Ch. 81, Acts 53rd
         Leg., 1953. p. 127 at pp. 200-201.        (Emphasis added).

In referring   to the effect of various appropriation   bill riders we have said
that by ordinary rules of construction    “general provisions     will be governed
to the extent of conflict by special provisions.    and that special provisions
in each article will be governed to the extent of conflict by ‘extra-special*
provisions   appear’ing in the body of the article in connection with particu-
lar appropriations.”     Att’y Gen. Op. ~~-06.   p. 17 (1953).

               Thus, it is the opinion of this office that if the rules or regu-
lations adopted by the Texas Employment       Commission     to govern reimburse-
ment for travel expense are “in accordance”       with agreements    made between
the Commission,     the Bureau of Employment     Security and/or the United States
Employment     Service or successors,    and have been approved by the appro-
priate federal authority as complying with the terms of Federal legislation
or regulations   under which moneys are granted to the Commission,        then
such rules are controlling    on all matters covered by them, and to that ex-
tent the general travel expense regulations     of Article VI, Section 8 do not
apply. *

                  The general law creating and governing the employment   se-
curity   system    administered by the Commission   has never been substantially


   * If taken literally tG language of the final sentence quoted from the
Texas Employment       Commission’s     special rider would furnish an argu-
ment against the conclusion we reach.         But a literal construction   of this
sentence would render it entirely nugatory because the Governor’s            power
to “suspend’ legislation    can be constitutionally    exercised   only by veto with-
in the prescribed    time limits.   Tex. Cons& Art. I. Sec. 28; Art. IV. sec. 14.
Hon. Rohert   S. Calvert.   page 4 (S-100)




altered.   42 U.S.C.A.  5 ~5 502, ~503; Article 5221b-1 et seq..   V.C.S.      After
consideration   of these statutes this office stated in Opinion    V-427      (1947)
that these provisions

      Y
        0 0 . reveal an unmistakeable   intent on the part of Congress
      and the Texas Legislature    that all moneys received from the
      Federal Government     under Title III of the Social Security Act
      can be expended only in the amounts and in accordance       with
      the standards of the Social Security Administration     and the
      rules and regulations   adopted by the Commission     to meet
      such standards.



                “Under these cooperative    endeavors  the several    Fed-
      eral Agencies    give to the State the standards for the State to
      follow in formulating    the rules and regulations  relative to var-
      ious systems.     After the State has prepared its rules and reg-
      ulations, these are submitted to the Federal Agencies        for ap-
      proval, and once they are appr,oved they cannot be altered or
      changed without first securing the approval of the k’ederal
      Agencies.    (Emphasis   added).

               “These approved plans, as they are called, are very
      detailed and cover every phase of the administration   of the
      acts and the expenditures that are made in connection there-
      with. (D

              In a later opinion of this office. Opinion V-504 (1948). we
acknowledged the fact, well illustrated   by the questions raised in your
opinion request, that there are many instances    of
      Y
         . e * apparent conflict in State and Federal laws and
      re,gulations which apply to this ‘State Agency” financed
      through Federal appropriations.D

But in the same opinion this office reiterated    a position   consistently     fol-
lowed in our prior opinions, namely, that

               “As pointed out in V-427 the terms and conditions
      of the Federal Statutes are recognized   and agreed to by
      our State Statutes.   Therefore, there is no alternative  ex-
      cept to give primary authority to the Federal laws and
      regulations  applicable just as the Texas Legislature    has
      done.”   (Emphasis   added).

              In Opinion Oi3737 (1941) we held that funds supplied by the
United States to the Unemployment   Compensation   Administration  Fund
could be disbursed to purchase supplies and equipment according     to
Hon. Robert   S. Calvert.   page 5 (S-100)




regulations  approved by the Social Security Board rather than according
to Section 2 of the then-current departmental appropriation act and other
State laws which provided a different method of procurement   for State
agencies.

               In Opinion O-5524 (1943) it was held that the Texas Unem-
ployment Compensation      Commission  was not affected or limited by a
general statute passed in 1943 which specified a particular   method of
procurement    of rental space which was mandatory on other State agencies
and. departments.

                And in Opinion V-504,     mentioned above, we held: (1) that ir-
respective   of a specific requirement      to the contrary in the then.,current
departmental    appropriation   act, it was not necessary    that the Legislative
Audit Committee     approve the Texas Employment          Commission’s    budget
for the expenditure    of its administrative    costs which are paid from fed-
eral funds; and (2) in re-affirmance       of Opinions O-3737 and O-5524, that
it was not necessary     for the Texas Employment        Commission    to procure
supplies and equipment or to make rental contracts through the State
Board of Control as required of State agencies generally,

              Your letter contains excerpts from certain regulations     or
standards promulgated    by the Bureau of Employment     Security as well as
your statement that “In Opinions V-577,   V-1250   and others, you have held
that such funds [granted the State for administration   expense]  become
State funds and are subject to State laws, rulings, and regulations.”

                 So far as the federal standards are concerned,       we understand
your letter to suggest that this office is authorized to interpret these stand=
ards and that this office is empowered to hold that Commission            regulations
do not conform     thereto. i,e., that this office may disapprove     Commission
regulations.     But the fact is that we possess     no such authority or power.
The interpretation     of these standards,    as well as their promulgation,     is
an exclusive    function of federal power,      Once the appropriate   federal au-
thority has approved a given regulation of the Texas Employment             Com-
mission,    such a regulation must, under the federal and Texas statutes, be
recognized    as “primary    authority,*   not to “be altered or changed without
first securing the approval of the Federal Agencies.”          Att’y Gen. Op. Nos.
V-504 (1948) and V-427       (1947).   This has been our construction     of the law
heretofore.     Until the statutes are changed, we are convinced that we must
maintain this view toward their meaning.

               In regard to the opinions you mention, we do not agree with
your interpretation.    Neither of those opinions holds that federal moneys
deposited in the State Treasury    become “State funds” in the sense that
State law and only State law thereafter    governs their disposition. Opinion
V-577 (1948) holds that a particular federal fund gra.nted to the State Health
Department under 42 U.S.C.A.,      Sec. 246 was within the scope of the Em-
ployees Retirement     System Act and could be used to match empl,oyee
                                                                          . ,.-
                                                                                      - .


Hon. Robert   S. Calvert.   page 6 (S-100)




contributions  under the Act.  But the opinion points out that all questions
relating to whether or not the federal purposes of the grant would prevent
its use for retirement  act matching purposes were removed by specific ap-
proval of such a use from the Surgeon General, the supervising      federal bud-
get authority for such grants.

               In Opinion V-1250     (1951) we held that certain federal funds
~granted to the Commission      for the Blind and to the State Health Depart-
ment could be received and taken into account in the funds of the State
Treasury.   and that said funds were appropriated        by the general appropria-
tion act to the said State agencies for the purposes for which the allocations
were made by the federal government.          The language in the opinion stating
that the funds could be “expended under the provisions         of the general ap-
propriation bill” meant only that provisions       in the general appropriation
bill had made an appropriation      authorizing   their expenditure.   The opinion
does not hold or even suggest that after being deposited the funds are sub-
ject to the primary authority of State law if the State law and federal law
or regulations   conflict.   To the contrary.   Opinion V-1250    makes it clear
that the particular   federal grant to the State Health Department       should be
expended. along with State funds appropriated         to match the grant, in strict
accordance   with standards incorporated       into a personnel plan approved not
 only by the State Health Department but also by two federal agenc~ies.

                                  SUMMARY

                The expense account requirements        and limitations
       of Sections 8j and 8k, Article VI, Chapter 81, Acts 53rd
       Legislature,   1953. do not apply to officers and employees
       of the Texas Employment       Commission    if the subjects
       dealt with in these sections are covered by travel expense
       reimbursement     regulations    of the Commission     which have
       been approved by the proper federal agency under 42 U.S.C.A.,
       Sections 502. 503.    It is legal to reimburse     laundry, cleaning
       and pressing charges,      and tips expended by Texas Employ-
       ment Commission      officers and employees      if such reimburse-
       ment is authorized by the properly approved regulations          of
       the Commission.

APPROVED:                                    Yours   very truly,

Mary K. Wall                                 JOHN BEN SHEPPERD
Reviewer                                     Attorney General

Robert S. Trotti
First Assistant

John Ben Shepperd                             ’ Phillit     Robinson
Attorney General                                          Assistant
