                     THEA~~ORNEY                                                  GENEHAL
                                                   OFTEXAS




Honorable          Wm.         Calvin        Montgomery
Chairman,           House        Investigating              Committee
Under      H.     S. R.    No.        168
House      of Representati.ves
Austin,      Texas


Dear      Sir:                               Opinion        No.     O-5149
                                             Re:     Does      the Speaker               of House          of Representa-
                                                     tives     have           legal    authority         under    H. S. R.
                                                     No.     8 to pay from                 the Legislative           Contin-
                                                     gent     Expense             Fund      the compensation              for
                                                     additional           clerks        for    the School         Census
                                                     Division           of the Department                  of Education?


                   We     acknowledge               receipt         of your           opini,on     requ,est      dated    March        22,
1943,     which       reads          as follows:


                   “As     chairman             of the Hoxse              Investigating            Committee            as-
           signed       to examine             and     investigate              the school         Census        Division
           of the Department                   of Educati,on,                 especial!y         with    reference        to
           money         spent        out of the Contingent                     Fund       of the Legi,slature            for
           employment.               of cl,erks        in the School              Census         Division        of the De-
           partment            of Education,            I am       directed           to request          of you an opi.n-
           ion as to whether                  clerks        assi,gned           to the School            Census      in the
           Department                of Education            can be lawfully                pal,d out of the Contin-
           gent     Fund        of the House           ?


                   ‘“Senate          Bill    No.    1 of the Forty-Eighth                        Legislatwe          makes
           the following              appropriation               for    contingent           expenses        of the Legis-
           lature:


                   “‘An        Act    making         an appropriation                   of the sum          of Three          Hun-
           dred      and Fifty          Thousand            Doll.ars           ($350,000.00),            or so    much
           thereof        as    may         be necessary,               out     of any funds            i.n the State     Treas-
           ury    not otherwise                appropriated,              to pay the contingent                   expenses,
           and to pay the mi,leage                     and per           diem         of members           and the per          diem
           of officers          and employees                 of the Regular                Sessi,on       of the Forty-
           eighth     Legislature,                 and to pay any unpaid                      accounts        or expenses
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                                                                                                                                                   ..




Honorable          Wm.         Calvin      Montgomery,             Page      2, O-5149




           of the Forty-seventh                    Legislature;           and declaring                an emergency.’


                   “House         Simple         Resolution         No.    8 provides            for    the appointment
of certain        employees              of the House           of Representatives,                    and provides           further
that     the Speaker            shall     have     the power         to appoint          extra        employees         whenever
in his     judgment            they     are    needed,       and that      each        shall     perform         such      duties            as
the Speaker          may        require.


                   “For         several       years       it has    been     .the custom              of the ~Legislature
to employ          committee              clerks      and place          them    on the House              of Representa-
tives     pay    roll     for    the purpose             of working        in the School               Census        Division           of
the Department                 of Education.             They      are    carried        on the pay           roll    of the House
of Representatives                    and are      paid     out of the Contingent                 Fund        of the Legislature,
but their       employment                is for     the purpose          of checking            the school           census        under
the direction            and supervision                 of employees           for    the     Department             of Education
in accordance             with        the Act      providing        for    the checking            and approving               of the
annual      school        census         by the Department                of Education.


                   *Our         committee          has     been    appointed           by a House             resolution          for        the
purpose         of determining                whether       this   constitutes           a proper         expenditure              from
the Contingent            Fund          of the Forty-eighth               Legislature,            as well        as   other        mat-
ters     concerning             the nature         and necessity           of the work            performed            by these
clerks.


                   “Question:              Do we have           the legal        authority        to pay money               out of the
Contingent         Fund         created        by an Act       of the Legislature,     Senate  Bill                      No. 1, for
the purpose          of paying            mileage,         per diem,  and    contingent   expenses                        of the
Legislature,            for     the employment               of additional            salaried         help     to work       in the
Department              of Education           and perform            services          under      the provisions               of the
Act      of the Legislature               creating         the School        Census          Division         of the Department
of Education            and providing              for    the annual       checking            and approving             of the
school      census        ?”


                   That        portion        of House       Simple       Resolution            No.     8 referred           to in your
letter     reads        as follows:


                   “BE        IT FURTHER                 RESOLVED,              That    it shall        be the duty          of
           the Speaker,               and he is hereby             empowered,             to dispense            with    the
           services           of any employee               who,     in his      judgment,             is not further
           needed,        or for         misconduct          of any employee;                  and he shall           have
           the power            to appoint         extra     employees           whenever             in his     judgment
           it is needed.               The     duties      of the employees              heretofore             mentioned
I   -




        Honorable          Wm.      Calvin         Montgomery,                  Page      3, O-5149




                   shall     be such        as     are     required         by the Speaker                of the House               of
                  Representatives,                  and he is hereby                    empowered             to employ            part-
                   time     employees,             and to di.vide               the duties,        apportion           the hours,
                   and fix the pay               of such       part-time           employees,             within        his       discre-
                   tion.


                            “Any     of the employees                    may      be excused          by the Speaker                     for
                   causes        deemed          by him        suff,icient;         provided        fu,rther,          that any
                   employee          who     shall       absent         himself         without      leave          shall     not re-
                   ceive     any compensation                     for    the time         missed         during        his        absence.
                   The     salaries         of the employees                    shall     begin    when         they        are    in-
                   structed         to begin        work       by the Speaker.”


                           The     Appropriation                Bill     for     the Executive            and Administrative                          De-
        partments          of the State            Government              passed         by the Forty-seventh                       Legislature
        contains      an appropriation                   of $24,420.00              for    the School           Census            Division           of
        the Department               of Education              for      the present         fiscal.year              ending        August            31,
        1943.      General          and Special            Laws,         Acts     of 47th     Legislature,                  page      1151.


                           Following          this       appropriation             and as a part               of the Act            is Section
        (15)    b of the General              Provisions,               which      reads      in part          as follows:


                           ,~;;:Th,&appropriations                   herein       provided         are    to be construed
                  as the maximum                   sums        to be appropriated                  to and for           the sev-
                   eral     purposes         named          herein,        and the amounts                    are    intended            to
                  cover,        and shall          cover       the entire          cost     of the       respective               items
                  and the;sane             shall     not be supplemented                     from        any        other     sources;
                  and,      except     as otherwise                  provided,          no other         expenditures               shall
                  be made,           nor     shall       any    other       obligations    be incurred   by any de-
                  partment           of this       State       . . . .”     General     and Special   Laws,  Acts
                   47th     Legislature,             page       1292.


                           This      provision           against         supplementing              the appropriations                         is broad
        enough,      in our        opinion,        to prohibit            the Legislature                as    one     of the departments
        of this    State      from     supplementing                    an appropriation              by the indirect                    means         of
        paying     the salaries            of additional                employees          who work            for     one        of the other
        departments           for     whom         an appropriation                 has     been     made,           when         there        has    been
        no bill     passed        authorizing            an additional             appropriation               for     the particular                  de-
        partment.


                           We      do not think            that House            Simple      Resolution              No.      8 was           passed         for
        the purpose           of repealing              Section         (15)b     of the General            Provisions     of the Depart-
        mental      Appropriation                Bill     of the 47th            Legislature.             However,     if such was the
                                                                                                                                 -          L




Honorable          Wm.       Calvin         Montgomery,           Page      4, O-5149




purpose,          it is our        opinion      that the attempted                repeal      was      ineffective.


                   It is the settled               rule     in this    State      that    a statute       cannot       be amended
by a resolution.              In Caples             V. Cole,     129    Tex.       370,     102   S. W.       (2d)    173,     rehear-
ing denied         129    Tex.       370,     104     S. W.     (2d)    3, Mr.        Justice      Sharp       speaking         for     the
Supreme           Court     said:


                   “It is plain         that       the resolution          not only         undertakes           to inter-
          pret      or construe             ,what    the original         act     contained         but also         to read
           into    said     law words              and intentions         not expressed              in the original
          act.      Statutes         cannot        be amended           in that       manner.         Resolutions             play
          ‘their     part     in our        legislative        history,         and are      often       resorted        to for
          the purpose              of expressing             the will     of the Legislature,                 but statutes
          cannot      be amended               by resolutions.”                 102      S. W.    (2d)    176.


                   In Humble           Oil     & Refining         Co.     v. State,        104 S. W.          (2d)    174,    error      re-
fused,     the Austin          Court         of Civil       Appeals       said:


                   “A statute          cannot        be amended           by a resolution.                It must        be
          amended           by re-enactment                  and publication              at length,      and by an
          act     or bill     which         is subject         to the veto        power        of the Governor.
          Article         3, Sections          29,    30,    35 and 36 of the Constitution                        of Texas.”
           104 S. W.         (2d)     185.


                   The      custom          of the Legislature             in employing              clerks      to work        for     and
under     the supervision              of the School             Census         Division         of the Department               of Edu-
cation     and in paying             them      out of the Legislative                    Contingent        Expense            Fund     by
putting     them      on the pay            roll     of the House          of Representatives                  is also        objectional
on constitutional             grounds.


                   In our      opinion        No.     O-4609      we have          heretofore          ruled      that    so much           of
House      Bill    No.      284,     General         and Special          Laws        of the 47th        Legislature,            page       880,
which     undertakes           to give        administrative              powers          to a “Joint       Legislative              Advisory
Committee”           created         by the act,,was              unconstitutional.               In that        opinion       we     said:


                   “It is the function                of the legislative              branch      of the government
          to make         the laws;           it is the function            of the executive               branch        of the
          government               to administer             and execute          those      laws.       In the statute
          under      consideration,   the Legislature of the State of Texas  has under-
          taken      not only to declare  what the law shall be, which is clearly  its
Honorable         Wm.      Calvin         Montgomery,                Page      5, O-5149




          prerogative,             but has         also     undertaken          to clothe         a portion        of the
          membership               of the Legislature,                 the Joint        Legislative             Advisory
          Committee,             with      the authority             to execute         and administer              the
          law passed           by the Legislature.                     Under        Article       2, Section        1, of
          the Constitution                of the State         of Texas,            the Legislature              is power-
          less     to clothe        itself,       or a portion          of its members,                 with    executive
          aut,hority.      *


                  We     are     of the opinion              that the speaker              of the House            of Representa-
tives    would      have       no greater           power       in this       connection          than an investigating
committee          appointed            by him.        The     constitutional             power      of the Legislature                   to
appoint     investigating               committees           and pay their              expenses         and their         compensa-
tion    (when     they     are     not members                of the Legislature                or other         State     officials)
in order        to get    information              requisite         to the right         use     of the legislative              power
is implied        from      the powers              expressly          granted.          Terrell,        Commissioner                v.
King,     118     Tex.    237,      14 S. W.         (2d)     786.      This        implied      power,         however,       is lim-
ited    by the constitutional                    provision      which         prohibits         the Legislative            Depart-
ment     from      exercising             any power          properly          attached         to the Executive             or     Judi-
cial    Departments.               Art.     II, Sec.        1, Texas         Constitution;          People        v. Tremaine
(New     York),      168 N.        E.     822;      Langever          v. Miller,          124    Tex.     80,    76 S. W.         (2)
1035.     In the last          case       cited,     the     late    Chief      Justice       Cureton          speaking       for       the
Supreme          Court     said:


                   “Under        this     division          of governmental              power      it is now an estab-
          lished       and fundamentll                principle          of constitutional              law that         the execu-
          tive    cannot       exercise            either     judicial        or    legislative         authority;         the judi-
          cial     department             cannot      be clothed             with    executive       or legislative            power;
          and the legislative                    ‘magistracy’           cannot       exercise       the functions             of ei-
          ther     the Executive                 or the     Judiciai         Departments.               12 Corpus         Juris,
          p. 802,        § 234     et seq.          Corpus          Juris,     supra,      declares:            ‘The     separation
          of the powers             was       believed        by Montesquieu,                 by Blackstone,              and by
          American          Constitution              makers          of the eighteenth             century        to be one of
          the chief        and most              admirable          characteristics              of the English            Consti-
          tution.    ’


                   ‘A principle            which      is the very             foundation         of the government                 of
          the United           States       and of the several                 states     must      be deemed             one es-
          sential        to the preservation                  of the rights           and liberties             of the people,
          and     should       be thoughtfully               and faithfully           observed          by all     clothed        with
          the powers            of government.”
                                                                                                                                    --          b




Honorable          Wm.      Calvin         Montgomery,             Page        6, O-5149




                   Under        the facts          stated      in your      opinion        request,       we are          of the
view     that     the employment                  of the clerks          mentioned          is an administrative
or executive           duty      imposed           on the State         Superintendent              of Public           Instruc-
tion,    under     Article           2820,     Vernon’s          Annotated         Civil     Statutes        and not a legis-
lative     function.           The      47th   Legislature          adopted         this     view       by the appropriation
of $24,480.00            for    the biennium             for     salaries         of Clerks,        Directors            and Super-
visors         in the Census            Division       of the Department                   of Education           and     $24,360.00
for     maintenance            and miscellaneous                 expenses           of the Census            Division.             (S. B.
No.     423,    General         and Special           Laws,       47th      Legislature,           p.    1151)     and by an addi-
tional     emergency            appropriation               of $6,000.00           to the Census            Division          in which
it provided        that     ‘all      moneys          used     in the checking             of the census            shall     be paid
out on an hourly               basis;        and provided          that     such     compensation                received      for
said     hourly     basis       shall        not exceed         forty     (40)    cents      per    hour.”         H.    B.   No.        392,
General         & Special          Laws,       47th    Legislature,              p. 469.


                   We,    therefore,              respectfully          answer       your     inquiry        in the ~negative               on
each     of the grounds              stated.


                                                                                         Yours      very     truly


                                                                          ATTORNEY                 GENERAL              OF    TEXAS



                                                                          By       $p%
                                                                                               Fagan       Dickson
                                                                                                        Assistant
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