                           March 28, 1972


Honorable Charles Barden     Opinion No. M-1105
Executive
-     -   Secretary
Texas Air Control Board      Re:   State Air Control Board
820 East 53rd Street               can pay court costs per
Austin, Texas   78751              Article 4477-5 in civil
                                   penalty suits.

Dear Mr. Barden:

     You have asked our opinion as follows:

             "Attached hereto is a copy of a bill
          from the Sheriff of Tyler County, Texas,
          in connection with the service of the
         ~papers in Cause No. 8805 - The State of
         Texas v. Stephens Lumber Company, Inc.,
         which has been filed in the 88th District
         Court of Tyler County, Texas.

             wI am respectfully requesting an
          opinion as to whether our office can pay
          a bill related to court costs or liti-
          gation on view of the fact that such ex-
          penditures are not specifically auth-
          orized in our appropriation bill."

     The above suit is by the State of Texas, filed pursuant
to Section 4.02 of Article 4477-5, Vernon's Civil Statutes,
by the Attorney General at the request of the board and its
Executive Secretary.  The court cost appropriation of the
Attorney General's office for the current year was vetoed
by the Governor, exercising his "legislative function".
Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405, 411, 412 (1911).
The Court there observed that the Appropriations Act and the
veto must be construed by an application of the same rules
as govern statutes or other legislative acts.

     Unless the Air Control Board has an appropriation out
of which court costs may be paid, there are no funds avail-
able from which court costs may be paid.


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                                                        ,    1




Honorable Charles Barden, page 2          (M-1105)



      ou may pay court costs out of    Item   7,'of your appropri-
ation' which reads as follows:

          "AIR CONTROL BOARD
          II
           . ..

          "7 .    Other Operating Expenses 75,000."

     The only items other than Item 7 in your appropriation
are line items for salaries and travel. The broad language
in Item 7, quoted above, indicates that all of the other auth-
orized expenses of operating the Texas Air Control Board must
be paid from Item  7.  The phrase "operating expenses" of a
court appointed receiver haps been broadly construed. St. Louis
Union Trust Co. v. Texas Southern Ry. Co., 126 S.W. 296, (Tex.
Civ.App. 1910, error ref.); 29 Words and Phrases, "Operating
Expenses", page 210, et seq. The phrase has been held to be
interchangeable with "cost of operation". Appeal of Pitney,
20 N.J. Misc. 448, 28 A.2d 660 (1942). The phrase "Operating
Expenses" has been held to include administration, labor,
taxes, rent, insurance, claims   and litigation expenses or
court costs.   Powell v. City  and County of San Francisco, 62
Cal.App.2d 291, 144 P.2d 617, 621 (1944). See also 21 A.L.R.
981, et seq., ,the annotation styled "Particularity of speci-
fication of p~urpose required in appropriation bill".

     "Other Operating Expenses", in this context, implies that
all necessary and proper expenses other than for those set out
in the line items are payable from this line item.   Where suit
is authorized by law, the necessary implication is that the
costs of the suit may be paid, as an expense necessary and inci-
dent to the operation of the agency.

     Section 3.07 of Article 4477-5, Vernon's Civil Statutes, a
part of the Texas Clean Air Act which established the Texas Air
Control Board, provides that the board "...may cause legal pro-
ceedings to be instituted in courts of competent jurisdiction
to compel compliance with the provisions of this Act or the rules



      'The current General Appropriation Act, Acts 62nd Leg.,
       R.S., 1971, S.B. 11, as amended by Acts 62nd Leg., 1st
       C.S., 1971, S.B. 7, p. 111-11, 3510.


                                 -5388-
Honorable Charles Barden, page 3       (M-1105)



regulations, orders, variances or other decisions of the board".
Thus, the enforcement proceedings may be initiated by the Board,
and it has a joint responsibility with the Attorney General, as
its legal representative in Court, to cause litigation expenses
and court costs to be incurred. The action is brought by the
State of Texas, and whether court costs have or have not been
appropriated to the Attorney General's office is immaterial under
circumstances where the administrative agency has an appropri-
ation which may be used to cover these expenses incurred upon
behalf of the State of Texas. The court cost  item of appropri-
ation to the Attorney General's office is not necessarily the
exclusive item of appropriation to which the State may look to
pay such costs under the circumstances presented here.

     Express declarations of the Legislature first mad,e in its
present language in the general Appropriation Act at its Regu-
lar Session in 1965 and repeated at each session since confirm
our holdings above. Each of the general Appropriation Acts
since 1965, including the interim act for the period September
1, 1969, through October 31, 1969, have contained the follow-
ing provision:

              "Sec. 10. LIMITATIONS ON USE OF OTHER
          EXPENSE FUNDS FOR PAYING SALARIES AND WAGES.
          Funds appropriated in Articles I, IL and III
          of this Act, or for the Central Education
          Agency in Article IV of this Act, in items
          designated for consumable supplies and ma-
          terials, current and recurring operating
          expense or capital outlay shall be expended
          only for items set out in the Comptroller's
          Manual of Accounts.   Expenditure Classifi-
          cation, effective November 1, 1965, as
          amended, and numbered from 10 to 19 for
          'consumable supplies and materials’,    20
          through 28 for 'current and recurringop-
          crating expense', and 60 to 69 for 'capital
          outlay'. It is further provided that such
          terms shall not include expenditures for
          personal services including salaries and
          wages, unless the language of those items
          explicitly authorizes such use."     (The
          term Manual of Accounts was emphasized by
          the Legislature; the subsequent emphasis by
          us) .



                              -5389"
Honorable Charles Barden, page 4           (M-1105)



The language of the 1965 Act was in substance the same.

     Pursuant to this express Legislative directive, the Comp-
troller has issued his Manual of Accounts.  Relevant to the
issues under consideraticn is the provision at page number 4-25
(Revised 9-l-69) of that Manual which, in its relevant part,
reads:

                     "EXPENDITURE CLASSIFICATION

          EXPENDITURE CODE

                028                  OTHER OPERATING EXPENSES

          AUTHORITY:       Legislative Appropriation

          PURPOSE:        To record payment for services
                          and fees not listed or included
                          under Expenditure Code 20 thru
                          27.... These services and fees
                          are such items as mortuary ser-
                          vice, telephone answering ser-
                          vice not billed by the telephone
                          company, equipment service con-
                          tracts, purchase of evidence,
                          time-clock service, and like-
                          items....
          II. ..II         iEmphasis added).

     Several of the state agencies have expended monies from
general appropriations to them pursuant to this provision of
this Manual.  The State Auditor has approved those expenditures.
This interpretation and those approvals ;re reasonable and in
our opinion are correct. Tarry Moving & Storage Co., Inc. v.
Railroad Commission, 359 S.W.2d 62 (Tex.Civ.App. 1962, aff.-
367 S.W.2d 322); A. E. Frank Co. v. Latham, 190 S.W.2d 739
(Tex.Civ.App. 1945, aff. 145 Tex. 30, 193 S.M.2d 671); 53 Tex.
Jur.2d 259-263, Statutes, Sec. 177.

     Nor do we find that the Legislature untended the court
cost item in the Attorney General's approl:ciation to be the
exclusive item for this purpose. See Cec'llon 10, Article V,
Current General Appropriation Act, and Cz ~ptroller's Manual
of Accounts, p. 4-25, set out above. In addition, court costs
are sometimes expressly itemized in appropriations to adminis-
trative agencies. The Comptroller of Accounts and the Texas

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Honorable Charles Barden, page 5      (M-1105)



Highway Department have such an item which is and has been used
many times in the past for this purpose in addition to such an
item appropriated for the general operation of the Attorney
General's office.  (See the current General Appropriation Act,
pages III-39 and 111-77).

     There are other instances, in the past and currently, of
which we are aware, whe~n state agencies have drawn upon their
own general appropriation for operating expenses to pay court
costs incurred in connection with suits filed for them and at
their request by the Attorney General. See also, for example,
the Texas Employment Commission.   Art. 522133-11 and 522133-12,
Subd. (b) and (h).

     Under Article 4477-5, and particularly Sections 4.02 and
4.04 thereof, your Board is authorized to request the Attorney
General to file and prosecute civil penalty suits for air pol-
lution violations.  Court costs incident to these suits are
necessary incidents to this operation of your Board. No par-
ticular form of words are necessarv to create a specific an-
propriation of funds to pay these operating expenses.  In -
National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.Zd 687,
693 (1940), the court held:
             II
              . ..Section 6 of Article 8 of our
          Constitution requires all appropriations
          of money out of the State Treasury to be
          specific. It is settled that no particular
          form of words is required to render an an-
          prouriation specific within the meaning of
          the constitutional provision under dis-
          cussion. It is sufficient if the Legisla-
          ture authorizes the expenditure by law, _and
          suecifies the nurnose for which the approp-
          riation is made..'." (Emphasis added)

     The appropriations to many state agencies are stated in
very general terms. Examples may be found at pages III-101
through 104 (p. 3600-3603, official bound vol. of session
laws) and at pages III-137 through 142 (p. III-136 through
141, 3635-3640, official bound ~012 of session laws) of the
current General Appropriation Act.   We find no decision of



     'The current General Appropriation Act, Acts 62nd
      Leg., R.S. 1971, S.B. 11, as amended by Acts 62nd
      Leg., 1st C.S., 1971, S.B. 7.
                             -5391-
                                                  .     .




Honorable Charles Barden, page 6       (M-1105)



our courts which hold this type of appropriation violates the
requirement of Article VIII, Section 6 of the Texas Constitu-
tion which requires that:

             "NO money shall be drawn from the Trea-
          sury.but in pursuance of specific appropri-
          ations made by law; ..." (Emphasis added).

In Terre11 v. Sparks, 104 Tex. 191, 135 S.W. 519 (1911), the
grouping of many items into one lump sum appropriation for a
department was upheld as valid and not obnoxious to the con-
stitutional objection that it was not a specific appropriation.
The Courts give weight to construction of the constitution by
the Legislature.  12 Tex.Jur.Zd 366, Const. Law., Sec. 20.

     Prior Opinions of the Attorney General Nos. V-554 (1948)
and M-286 (1968) are expressly overruled; any prior opinions
which conflict with this Opinion are overruled to the extent
of the conflict.

     In view of all of the foregoing considerations, we have
concluded that litigation and court costs of the Texas Air
Control Board in filing or defending suits in behalf of the
State can be paid from the "Other Operating Expenses" fund as
payment for a necessary incident to the operation of the
Board.

                       SU
                       --    MMARY
                             -----
          The words "Other Operating Expenses" con-
          tained in Item 7 of the current General
          Appropriation Act to the Texas Air Control
          Board for the fiscal year 1972 includes
          court costs in civil penalty suits filed
          by the Attorney General at the request of
          the Board. Any prior opinions in conflict
          with this opinion, including V-554 (1948)
          and M-286 (1968), a$e overruled.




Prepared by Roger Tyler
Assistant Attorney General
                              -5392-
Honorable Charles Barden, page 7      (M-1105)




APPROVED:
OPINION COMMITTEE

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

Robert Owen
Houghton Brownlee
Rex White
James Broadhurst

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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