Honorable Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas

Dear Sirs                     Opinioti’NciiO-61 3.
                              Rss Interpretat 4 on of Sections
                                   s'and 6 of House Bill No. js
                                   4cts.of the.,49th LegTslature,
                                   P. s., as affected by Arti-
                                   ,cle_III, Section 49a of the
                                   'Texaa.Congtltution.

         Your opinion request of February 6, 1945,
reads aa iollowrt
         eSeotions 5 and 6 of House Bill No. 3
    of the present Yesston of the Legislature, read
    as follonrsr

               "@eC.   5.   Amend Section 2 of ~Arti-
    de   13 of EIoiZi7Ril NO.    176, Acts   of   the
   Re ular Session of the forty-eighth Legislature,
   19 & 3, so as to hereafter read as follows8


               "'A&icle     130 Anvronriation and
               --.              Allocation.

              "'Section 2. Allooation. It is
   hereby specifically provided that out of the
   money a proprlated fm the school year of
   1944-19k   th e aum of Nine MillionOne Hundred
   Ninety-one ThousandDol1ar.s (~9;19l,OOQ.O0)
   for High School Tuition: ~Se.verty-bne Thousand
   Three Hundred and SeVm6iR;Dollars    '(#71,370.00)
   for the administration of this Act as provided,,
   herein;, Twenty-one Thousand and Two Hundred
   Dollars (#21,200.00) for the expenses of the
   Legislative Committee, the salary of the Legls-
                                                            .   .




Hon. Geo. H. Sheppard page 2 0-6.193




    tive Accountant, and for such other and necessary
    expenses incident to the duties, of the Legislative
    Accountant.  Such Legislative Accountant shall be
    paid a salary of not more than Four Thousand and
    Two Hundred Dollars ((&,200000) per year ,out of
    the sum hereby allocated. Any unexpended balance
    under either of the above allocations-at the end
    of either year of the biennium mau be transferred
    by order of the,State Superintendent of ~ytibllc
    Instruction and the approval of the Legislative
    Aocountant to any allocation herein created and
    set up.'

               "Sec., 6. In addition and supplementary
    to the funds appropriated by the provisions of House
    Bill. No. 176 Acts of the Regular Sessi'on of the
    Forty-eighth kqislattire, there ~ishmr~     approi
    priated out of the General Revenue Fund of the State
    of Texas, not ,otherwise appropriated, ,the sum of
    One Million Five Hundred and Seventy-five Thousand
    and highty-two Dollars ($1,575,082.00),  orso much
    thereof as may be'necessary for the biennium end-
    ing August 31, P&5, to be allocated and ,expended
    under the provisions of House gill No. 176,.,Acts
    of the Regular Session of the Forty-eighth Legis-
    lature,' and of this Act.'      ^
              aThe Comptrollerss certificate certify-
    ing as to the funds available for the payment of
    the appropriation reads as ~followsg

              "'I, Gee. 11. Sheppard, State co*-
         t,rollor-of ublic Accounts do hereby cer-
         tify that tg e sum of One Million Five
         Hundred and Severty Five Thousand..and
         Eighty TWO Dollars,()l 575.082.OO),,appro-
         priated fnthe herein kouse flill~.*umber
         3. PS within the amount estimated to be
         available within the affected funds. v

              "The ~unexpended balance of the above
    named allocations at the end of the 1943*!1944 fiscal
    year amounted to $1,184,655,
Hon. Geo. H. Sheppard Page 3 o-6193



    "The question before us, at the: time we certified
    to'this bill and it also confronts us now* is
    whether the above mentioned onexpended balance subject
    to use for ,the purposes of this bill under prior
    appropriations?
                    I_
              'Prior to the amendments set forth in your letter,
    Section 2 of Article 13, House‘Rill No. 176, Acts of the 48th
   -Legislature, R~. S., Ch. 373, p.- 669, reads as follows:

              "Sec. 2. Allocation,  It is hereby
        specifically provided that out of the money
        appropriated for each school year of the biennium
        the sum of Five Million Three Hundred Sevety-
        eight Thousand, Four Hundred and Twenty Dollars
        ($5,378,42@) is hereby set aside for Salary Aid;
        Nine Hundred and Twenty Thousand Dollars
        ~~~~O~~~~~e~~n~"~~v~~~~o~   Tuition' Three Miilicn
                                   ollars (471,370) for the
        administration of.thls&t    as proadded herein;
        Twenty-one Thousand and Two Hundred Dollars
        (#21,200) for the expenses of the Legislative Com-
        mittee, the salary 6f the Legislative Accountant,
        and for such other and necessary expenses incident
        &o the duties of the .egislative Accountant.    Such
        legislative Accountant shall be paid a salary I
        of not more'than Four Thousand and Two Hundred-~
        Dollars ($4e20Q0GO) per year out of.the. sum hereby
        allocated* Any unexpended balance under either
        of the above allocations at the'end ,of the first
        year of the biennium shall be transferred by
        order of the State Sppenintendent of Public In-
        struction and the ap;Groval of the Legislative
        Acoountant to any allocation herein created and set
        up."
             Section   49a of Article ,111 of the Texas   Consti-
  tutioq provides, inter alia, thata. .            1.
             "From and after January 1, 194.5, no bill con-
        taining an appropriation shall be considered as
        passed or be sent to the Governor for considera-
                                                                 -   _.   .




Hon. Qeo. H. Sheppard --Page     4 o-6193
             _,                    ,



    tfon until and unless the Comptroller of Public
    Accounts endorses hfs.certificate   thereon show-
    $ng~ that the amount appropriated is within the
    amount estimated to be available in the affected
    funds."
           .
          Plainly Section 6 of EIouse Bill No. 3 comes
within this provision, and you have made a certification with
respect to the amount therein appropriated. A more difficult
questfon is whether the provision in Section 5 with respeot
to the transfer of unexpended balances is also an approprla-
tlon made after January 1, 1945, and hence fs also within the
above quoted section of the Constitutfon.    It is our opinion
that this provision is not such an appropriation and that no
certfficate need be executed by the Comptroller with respect
to Section 5.

              Nefther in terms nor in effect does Section 5
of House Bill 30. 3 contain an appropriation.   On the oontraryp
this Section merely provfdes for the allocation,.,,of
                                                    appropriations
elsewhere made for the school year of 1944-4s.   One of the appro-
priations which is subject to allocation by Sectfoq's is con-
tained in Section 6, and, as we have seen, this appropriation
must be and has been accompanied by a certificate from the
Comptroller,  The other appropriation which is allocated by
Section,5 is contained in Section 1 of Article I.3 of House Bill
No. 176, and since such approprPatlon was made prior to danuary
1, 1945# ft was not and did notneed to be accompanied by such a
certfficate. The provision at the end of Section 5 relative to
the transfer of unexpended balances is merely analternative
method of allocation. This provision is no way takes additional
funds which have already been taken out of the T.reasury ,by
Section 6.of House Bfll No. 3 and by Section 1 of ArtfoPe~ 13
of Rouse mill No. 176 to be expended for purposes other than
those for which they were inftially encumbered.

         Consequently, you are respectful1   advised
that the provision in Seotion 5 of House U1 11 No. 3 with respect
to thetransfer of unexpended balanosa is not embraced by
Section 49a of Artfc'le III of the Texas Constitution, and that
such provfsfon calls forno certiffoate from you.
              Trusting that the foregoing fully answers
your inqufry9 we are
RDMfBT/ am                  Yours very truly
hPFROVF$ FEB 26 1945        ATTORR%YGEXKRAL  OF TMAS
CAJIIp$,C.ASHLEY
FIW' ,.~@S~3%W                         R. Dean Poorhead
hPPROV~.OPINION    COMMITTEB-%   BWB   ,,.    A.gglstant
