                                  October 20, 1970


Hon. J. W. Edgar                               Opinion   No. M- 709
Commissioner
Texas Education  Agency                    Re:      Whether the Legislature      has
201 E. 11th Street                                  appropriated    funds to estab-
Austin,  Texas                                      lish and maintain regional
                                                    diagnostic   facilities   as au-
                                                    thorized   by Section   11.15 of
                                                    the Texas Education     Code, as
Dear Dr.   Edgar:                                   amended, and related     questions.

            You have requested         an opinion         concerning   the above    stated
matter.    We quote from your         letter:

              "Section      5 of House Bill 156 (Code provision
      11.15),     as amended by H.B. 432, 61st Leg.,                 directs
      that the Commissioner            of Education      shall    transmit
      to the 62nd Legislature             an Interim report        on the
      status    of the research          on the problem of diagnosin
      and treating        language-handicapped         children,      and (2 7
      include     in the report        an itemized     estimate      of the
      money required          to conclude     research    project      satls-
      factorily      by August 31, 1972.           In implementation          of
      this research         program contemplated         by the Act, especially
      Section     11.15(h),       subsections     (2) and (3) of Texas
      Education      Code, which call         for the establishment           and
      operation      of at least       three regional      experimental
      diagnostic       facillties,~and        subsection     (4) which
      authorizes       the making of agreements           toward the estab-
      lishment      thereof,      we currently     are confronted        with a
      two-fold      problem.

             "First8  Is there an appropriation    to sup-
             port the cost of establishment    and operation
             of such regional  facilities?

             "Second8     May subsection    (4) of Section      11.15(h)
             T.E.C.,   be  construed   to  empower  the   Texas    Educa-
             tion Agency to contract       with private     firms,
             clinics   or other acceptable     associations      for the
             performance    of such experimental      diagnostic
             treatment    and program services,     pursuant to Agency
             adopted regulations      and/or guidelines?

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Hon. J.   W.   Edgar,   page   2          (M-709)



             “The Office     of State Comptroller     has apprised
     this Agency orally         that in the absence of an Attorney
     General ruling       It could not honor requests        of this
     Agency for warrants In payment of costs             for the es-
     tablishment    and operation       of such regional     experimental
     diagnostic    facilities,      because there is no language in
     House Bill No. 156, as amended, or any other statute,
     which provides       that such research    program shall con-
     stitute    a part of and be financed       from the Foundation
     School Program or its Fund; and secondly,              because there
     is no estimate       or specified    amount appropriated       to the
     Texas Education       Agency from the General Revenue Fund
     for such {eglonal         and experimental   diagnostic     facilities
     purposes,

            The gist of the first    question  appears to be whether there
is a specific     appropriatlon.and  prior authorization      by the Legisla-
ture to pay the cost of the establishment         and operation   of the re-
gional facilities      mentioned in your request.

              Section  44 of Article   III,   Texas Constitution,  requires
pre-existing      law as a base for a specific     appropriation.   Austin
National     Bank v. Sheppard,   123 ‘f&.272,   71 S.W.2d 242 (19341.
            Section   6 of ArtlcleVIII,    Texas Constitution,   requires
that a.specific     appropriation   be made before money is drawn from
the treasury.      The definition   of “specific”  as set forth in Section
6 was interpreted     by the Texas Supreme Court In National      Biscuit
Company v. State,     134 Tex.293,135 S.W.2d 687 (1940)r       (page 6931
           “It is sufficient    if the Legislature         authorizes
     the expenditure    by law, and spec;fles     the      purpose for
     which the appropriation      Is made.

            In the instant         case, House Bill  No. 2, Aats 61st         Leglsla-
ture,   2nd Called Session,         1969, p. 890 (last  appropriations         act)
provides:

            “There is hereby appropriated       for the biennium
      ending August 31, 1971 . . . to pay ‘the State’s         part
      of the Foundation     School  Program as provided    for in
         . . House Bill  No. 156, Chapter 451, .           Acts of
      the 60th Legislature,      Regular Session,   19671 . . .

            “There Is hereby specifically  appropriated   out
      of moneys in the Qeneral Revenue Fund not otherwise
      appropriated   the amount necessary to pay the full
      amounts contemplated   and provided by Senate Bill

                                      -3427-
Hon. J. W. Edgar,       page 3~           (M-709)



      No. 117 .        should there be Insufficient      money
      in the fund lreated      bv said Senate Bill   No. 117
              to carry out the purposes     and provisionsof
      Sedate Bill    No. 117     .    House Bill No. 156 . . .
                      The appiopriatlon    above shall be ex-
      v
      pen  ed under
                - .”  the .terms and provisions    of said Senate
      Bill   No. 117, supra, and the respective      laws herein-
      above cited
      respectively.

             House Bill    No. 156 referred     to in the above, Act .was
codified    ae Article    2654-lc,   Vernon’s  ,Civil Statutes,    and later
adopted    in the Texas Education      Code as Section     11.15.   At the same
time, as adopted In the Code It was amended by House Bill              432, Acts
of the 6lst Legisiature,        Regular Session,     page, 228 (1969).    The
net effect    of this legislation      is that House Bill      156, as referred
to In the above quoted sections          of the Appropriation     Act, is very
much alive,    and in our opinion      serves as existing      law upon which
a specific    appropriation      was made by the Legislature      In the last
Appropriation    Act.

             Your   second   question    also   requires    an affirmative      answer.

              The authority     and obligations      of Section     11.15(h)     ,of the
Texas Education       Code was not affected       by House Bill      432, supra, and
said Section     authorizes     and requires    the. Central Education          Agency to
establish     a minimum number of experimental           diagnostic     facilities      with
advice    from the advisory      council.     This same section        of ~the Code, and
also pertinent     provisions     of House Bill      432, specifically         provide   that
the agency shall make necessary           agreements     and contacts      to establish
the diagnostic      facilities,     and further    authority     Is given to seek
assistance     of both public     and private     concerns    to develop       a program
for such facllltles~

                             SUMMARY

              Prior law exists     upon which a specific       ap-
      propriation      was made to pay the cost of establlsh-
      lng and operating       regional    experimental   diagnostic
      clinics     as contemplated      by the “Barnes-Wright     Study
      Act”,    Article   2654-lc,   Vernon’s    Civil  Statutes.

            Specific    authority    is given by Section      11.15(h)
      of the Texas Education        Code for the Central Education
      Agency to contract       with private     firms to set up and
      operate   the experimental       diagnostic    programs pursuant
      to Central     Education    Agency guidelines.

                                     -342a-
Hon.   J. W. Edgar,   page 4            (M-709)




                                            D C.   MARTIN


Prepared    by James C. McCoy
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,  Chairman
W. E. Allen,  Co-Chairman
Ivan Williams
Jerry Roberts
Fisher Tyler
Roger Tyler

MEADEF. GRIFFIN
Staff Legal Assistant

ALFmDWALKER
Executive Assistant

NOLA WHITE
First Assistant




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