                   October 8, 1951


Executive Director
Board for Texas State Hospitals
  and Special Schools
Austin, Texas             Opinion No. V-1305
                         Re:   Authority of the Board for
                               Texas State Hospitals and
                               Special Schools to transfer
                               funds between appropriated
                               line Items or between appro-
                               priations of the various in-
                               stitutions in Article II of
                               House Bill 426, Acts 52nd
Dear Sir:                      Legislature.
          Your request for an opinion concerns certain ri-
ders In Article II of House Bill 426, Acts 52nd Leg. R.S.
1951, ch. 499, p. 1228 (the general appropriation bill),
pertaining to the appropriation for the Board for Texas
State Hospitals and Special Schools and the State Hospitals
and Special Schools under the jurisdiction of the Board.
You state that the questions arise by virtue of the holding
of this office in Opinion V-1254 (1951) with regard to the
constitutionality of the riders placing additional duties
upon the Legislative Budget Board. You then ask:
          “1. Whether the Board for Texas State Hos-
     pltak and Special Schools may add or substitute
     position titles in accordance with Section 2, Ar-
     ticle 2, H.B. 426.
          “2. Whether the Board for Texas State Hos-
     pitals and Special Schools may transfer between
     line items of an institution and the central of-
     fice appropriations or between institutions in-
     cluding the central office appropriations as pro-
     vided in Section 7, Article 2, H.B. 426.
         “3. Whether the Board for Texas State Hos-
    pitals and Special Schools may expend for renova-
    tion or new construction of warehouse facilities
Hon. Larry 0. Cox, Page 2   (V-1305)


     as provided in subsection (c) of Section
     10, Article 2, H.B. 426."
          You subsequently requested the opinion of this
office with regard to the authority of the Board to use
the annual $600,000 appropriation to the Board's Special
Reserve Account set up in Section 9(a) of Article II,
House Bill 426, m,     for purchase of food, clothing
dry goods, etc., without approval of the Legislative Bud-
get Board. This particular appropriation was made to
cover unforeseen emergencies and needs which could not
be cared for by speciflc,appropriatlons to the various
institutions because of the inability of the Legislature
to predict how many persons may become mentally ill or
contract tuberculosis or other illnesses requiring their
admission to State Schools and Hospitals. Neither could
the Legislature forsee how much the cost of food, cloth-
ing etc., might rise above the amounts appropriated di-
retF,to each institution.
           The rider (Sec. 2 of Art, II, House Bill 426,
Eitwhich      gives rise to your first question provides
       :                                                    -.

          "No institutions shall employ any person
     at any title not contained in the list of ti-
     tles of positions under the heading of Medical
     Treatment and Patient Care Division for each
     institution provided in this Article, unless
     or until there has been prior approval by the
     Legislative Budget Board to add or substitute
     position titles with rates of pay within the
     following maximum salary scales appropriate to
     the class of position herein set forth,11
     (There follows a list of position titles and
     the salaries to be paid the persons having the
     titles set out.)
          Your second question involves Section 7(a) of
Article II, House Bill 426, m,     which provides:
          "Transfer of Appropriations: (a) No
     funds may be transferred between line items of
     an institution and Central Office Appropriation
     or between institutions including the Central
     Office appropriations as provided in this Arti-
     cle, without prior written approval of the Leg-
     islative Budget Board. All requests for said
                                                            -.
Hon. Larry 0. Cox, Page 3   (V-1305)


     transfers submitted to the Legislative Bud-
     get Board must have the prior written ap-
     proval of the Board and/or Council. Requests
     for all said transfers must be submitted to
     the Legislative Budget Board in writing with
     complete and adequate justification, ,together
     with all pertinent supporting data pertaln-
     ing to the necessity for such transfer, in-
     cluding a certified copy of the minute or min-
     utes approving said request for transfer by
     the Board and/or Council. Upon approval of
     transfer requests made by the Board and/or
     Council, the Legislative Budget Board shall
     certify same in writing to the State Comptrol-
     ler of Public Accounts who Is hereby directed
     to make transfer of the fund, or funds, from
     either or all of the aforesaid accounts, in
     whole or in part, from one line item to an-
     other within the appropriations of any or all
     institutions and Central Office, or from one
     institution to another Including the Central
     Office, In the amount or amounts and for the
     purpose or purposes as set out in the certi-
     fication of approval by the Legislative Bud-
     get Board. The State Comptroller shall set
     up a separate account for the purpose of each
     transfer."
          Section 10(c) of Article II, House Bill 426,
supra, Involved in your third question, provides:
          "Central Warehouse System: The Board
     is hereby authorized to establish a central
     warehouse system of not to exceed three ware-
     houses to serve all Institutions under the
     jurisdiction of the Board. In order to facil-
     itate such a warehouse system, there is here-
     by appropriated out of the Board Local Fund
     the sum of Two Hundred Thousand Dollars ($200,-
     000), to be known as the Warehouse Revolving
     Fund, to purchase stocks of goods, supplies,
     materials and equipment to be distributed to
     the said institutions Included In this Article,
     on a reimbursable basis. Any funds collected
     by the Central Warehouse System from sales is
     hereby reappropriated to the Warehouse Revolv-
     fng Fund for future purchases and operations.
Hon. Larry 0. Cox, Page 4   (V-1305)


     Charges made to institutions for such mer-
     chandise furnished shall include overhead
     charges sufficient to meet the cost of op-
     eration of said warehouse system. Pro-
     vided, however, that the Board of Control
     shall continue to handle purchases for the
     Board in the same manner as is done for
     other State agencies. All stocks of goods,
     supplies, materials and equipment belong-
     lng to any institution in excess of a three
     (3) month normal usage requirement are here-
     by transferred to the Central Warehouse Sys-
     tem without cash or credit reimbursement.
     All stocks of goods, supplies, materials
     and equipment required for a three (3) months
     normal usage may be transferred to the ware-
     house system at a value set by the Executive
     Director. The Board is hereby authorized to
     utilize any available buildings owned by the
     State that may be suitable for warehouse pur-
     poses; however, no expenditure from any source
     shall be made for renovation or new construc-
     tion of warehouse facilities without obtain-
     ing prior written approval of the Legisla-
     tive Budget Board.”
          Section 9(a) of Article II, House Bill 426, m,
which is Involved in the question you asked subsequent to
the opinion request considered herein, provides:
         lfSec.9. (a) There is hereby appropri-
    ated out of any moneys In the State Treasury
    not otherwise appropriated the sum of Six
    Hundred Thousand Dollars ($600,000) for the
    fiscal year beginning September 1, 1951, and
    ending August.31, 1952, and a like amount of
    Six Hundred Thousand Dollars ($600,000) is
    hereby appropriated for the fiscal year be-
    ginning September 1, 1952 and ending August
    31, 1953, to be set up anA known as the
    Board Special Reserve Account to be made avail-
    ;:bleto meet unforeseen emergencies which may
    arise during the biennium covered by this ap-
    propriation for Hospitals and Special Schools.
    Any balance remaining in said reserve account
    as of August 31, 1952, is hereby appropriated
    to said account and made available for the fis-
    cal year beginning September 1, 1952. Said
Hon. Larry 0. Cox, Page 5   (V-1305)


     Board Special Reserve Account shall be ex-
     pended only for purchase of food clothing
     and dry goods medicines, and ut1lity ser-
     vice, only ader approval of transfer to
     the institution, or institutions, where
     said funds are to be expended; except that
     in the event an institution is activated
     at Brady, Texas, moneys from the Reserve
     Account may ‘be used for the operation, in-
     cluding salaries, of said institution.
          “All transfers from said account shall
     require prior written approval by the Legis-
     lative Budget Board, in the same manner and
     by the procedure as provided in (a) of Sec-
     tion 7.”
          It will be noted that in each of the above ri-
ders, in addition to the approval or action of the Board
for Texas State Hospitals and Special Schools, the approv-
al by the Legislative Budget Board is also required
prior to the expenditure or transfer of the funds appro-
priated or the change in the titles listed in other parts
of the appropriation bill. In Attorney General’s Opinion
V-1254 (1951), it was stated that
         “Since the State departments, institu-
    tions of higher education, and other State
    institutions are not a part of the legisla-
    tive branch of the State government, these
    riders, in requiring further itemization of
    appropriations or approval of the expendi-
    ture of appropriated funds by the Legislative
    Budget Board, violate the constitutional pro-
    vision prescribing the separation of powers.
          N. . 0

         “Therefore, in so far as the powers and
     duties of the Legislative Budget Board are
     extended in House Bill 426 beyond the duties
     prescribed for that Board in the statute by
     which it was created, the Legislature has at-
     tempted to place upon the Board duties which
     are in violation of Section 1 of Article II
     of the Texas Constitution.”
          The riders involved in your request, except Sec-
tion 9(a) of Article II, are worded in a negative manner,
and the questions arise because of a possible contention
that after striking down the unconstitutional portion, the
authority conditionally granted thereby would be expressly
 Hon. Larry 0. Cox, Page 6   (v-1305)


 prohibited. This is an extremely technical construction
 which is dependent solely upon the grammatical style in
 which the Legislature expressed its willingness for cer-
 tain functions to be performed by the Board for Texas
 State Hospitals and Special Schools.

            The effect of this construction would be that
 the Legislature intended for the Board and the hospitals
 and schools under the jurisdiction.of the Board to oper-
'iate strictly under the line appropriations during the bi-
 ennium unless the operation was exactly as provided in
 the various riders. The rationale of such a position
 would have to be that the transfer and other provisions
 were unnecessary to the operation of the system unless
 they could be carried out by the Legislative Budget Board.
           In State v. Carter 27 P.2d 617 (Okla. Sup.
 1933)) the Court had before it an appropriation bill in
 which it was provided that the funds appropriated to the
 Corporation Commission were to be expended-"by and with
 the approval of the Governoron The Court held that the
 approval provision was an attempt to place general legis-
 lation in an appropriation bill and, therefore, unconsti-
 tutional. It was contended that if the limitation was
 void the entire appropriation must fall. In overruling
 this contention, the Court said:
           II      We are dealing with a general
      appropiiit;on bill. None of the decisions
      cited applies to such a bill. If the rule
      stated is applicable to the provisions of
      the general appropriation bill, its applica-
      tion is dependent upon a construction of the
      legislative Intent. In determining that
      question, the rule is stated in 59 Corpus
      Juris, S 206, pages 642, 646, to be I* * *
      If, when the invalid part is stricken out,
      that which remains is complete in itself and
      capable of being executed in accordance with
      apparent legislative intent wholly independ-
      ent of that which was rejec4ed, it must be
      sustained to that extent; and this rule is
      especially applicable where the statute pro-
      vides for two distinct subjects. In this
      connection it has frequently been declared
      that the valid part of a statute will be sus-
      tained where the valid and invalid parts are
      so separate and distinct that it is clear or
      may be presumed that the legislature would              -
      have enacted the former without the latter, if
      it had known of the invalidity, or, as other-
      wise stated, if the valid or.invalid parts are
Hon. Larry 0. Cox, Page 7 (V-1305)


    not so intimately connected as to raise the pre-
    sumption that the legislature would not have en-
    acted the one without the other, the act will be
    upheld so far as valid. On the other hand, the
    whole statute will be declared invalid where the
    constitutional and unconstitutional provisions
    are so connected and interdependent in subject
    matter, meaning, and purpose as to preclude the
    presumption that the legislature would have passed
    the one without the other, but, on the contrary,
    justify the conclusion that the legislature in-
    tended them as a whole and would not have enacted
    a part only. In other words, the whole act will
    be declared invalid where the unconstitutional
    part Is so connected with the remainder or with
    the general scheme, that it cannot be stricken
    out without making the legislative intent inef-
    fective, or is of such import that without it, the
    other parts would cause results not contemplated
    or desired by the legislature, or is the consid-
    eration and Inducement of the whole act, although
    it has also been held that the rule of lndlvisi-
    bility where the invalid part is the inducement
    or consideration of the whole act does not apply
    if the lnvalld provisions, although appearing in
    the same chapter of the revised laws, were enacted
    in previous years. In determining the question
    whether the act would have been passed without
    the invalid part, the rule has been laid down,
    that, If the mere elision of the words or provi-
    sions which give an unconstitutional effect, will
    leave a consistent and workable act, the remain-
    der will be valid; but if modifications or limi-
    tations must be inserted or understood to avoid
    the fatally broad effect of the statutory lan-
    guage, the whole act must fail. l * *I
          "As to the item in question, when measured
     by that rule, we find that the lelislon of the
     words or provisions which give an unconstitu-
     tional effect, will leave a consistent and work-
     able act.' that Is, will leave an appropriation
     singular, definite, land certain. That which
     will remain, ‘is complete in Itself and capable
     of being executed In accordance with the appar-
     ent legislative intent.' The valid and invalid
     parts are so separate and distinct that It is
     clear, or may be presumed, that the Legislature
     would have enacted the former without the lat-
     ter, if it had known of the invalidity of the
Hon. Larry 0. Cox, Page 8   (V-13@)


     latter. We cannot hold otherwise without
     holding that the Legislature would not have
     made an appropriation for the purpose of
     enabling the Corporation Commission to per-
     form a.duty enjoined upon It by the Consti-
     tution, if it had known that it could not
     require the amount appropriated to be ex-
     pended 'by and with the approval of the
     Governor.' We cannot 80 hold. We must give
     to the Legislature every presumption of an
     intention to conform its actions to the pro-
     visions of the Constitution. We do so in
     this case. We therefore hold that, had the
     Legislature known of the invalidity of its
     attempt in a general appropriation bill to
     vest the Governor with power that he did
     not theretofore have, it would have made the
     appropriation for the performance of the
     constitutional duty of~the Corporation Com-
     mission notwithstanding. The Legislature
     made the appropriation. Evidently It was
     intended to be used. There Is nothing in
     the act to indicate any other intention. The
     fact that the Legislature attempted to vest
     approval of its use in the Governor in no
     wise operates.to show that the Legislature
     did not intend for the amount to be used.
     . 0 s We cannot conclude that the Legisla-
     ture intended that, if those legislative pro-
     visions were void, the appropriations made
     in a general appropriation bill would fail.
     We refuse to so hold. To do so would be to
     hold that the Legislature did not intend to
     make appropriations for the conduct of the
     government of this state, unless its attempt
     to legislate in a general appropriation bill,
     in violation of the plain and unambiguous pro-
     visions of the Constitution, was lawful."
           Texas Courts have applied these same rules of
construction in cases Involving statutes which are uncon-
stitutional in part. Ohio Oil Co. v. Giles, 235 S.W.2d
650 (Tex. Sup. 1951); Western Union Tel. Co. v. Texas,
62 Tex. 630  (1884).

          Under these rules, all of Articles II of House
Bill 426 must be considered in determining if the author-
ity contained in the quoted riders would have been in-
cluded In the Article without the proviso requiring ap-
proval by the Legislative Budget Board,. A technical con-
struction which would remove a word or phrase from a
Hon. Larry 0. Cox, Page 9   (V-1305)


sentence and attempt to apply literally what remains
would be prohibited.
          The primary intent of the Legislature in pass-
ing the various provisions in Article II, as shown by
the wording of those provisions, was to set up a method
whereby transfers of funds and other changes could be
made in order for the State Hospitals and Special ,Schools
to be efficiently and economically operated. The proced-
ure adopted was to place the initiating power in the
Board for State Hospitals and Special Schools, and then
have their action approved by the Legislative Budget
Board. We think it is clearly evident that the power to
carry out these provisions would have been placed solely
in the Board for State Hospitals and Special Schools had
the Legislature known the Budget Board requirement was
unconstitutional. The number of riders contained in the
“General ProvlsionsV’portion of Article II which grant
to the Board for Texas State Hospitals and Special Sd’mols
authority to make changes in the line appropriations set
out in Section 1 shows that the Legislature was cognizant
of the fact that the specific appropriations must be sup-
plemented and changed to some extent. In the final analy-
sis, it appears that it would be virtually impossible for
the Board to carry out its functions without the author-
ity contained in the above quoted riders and the other
riders contained in Article II. The Legislature surely
did not intend the Texas State Hospitals and Special
Schools to cease operations should the functions of the
Legislative Budget Board set out in Article II be uncon-
stitutional.
          The primary intent discussed above is clearly
indicated in the rider (Sec. 9(a) of Art. II, House Bill
426) which provides for the transfer from the Board’s Spe-
cial Zeserve Account. The transferring authority is con-
tained in affirmative language in the first paragraph,
whereas in a subsequent paragraph the transfers are con-
ditioned upon prior written approval by the Legislative
Budget Board. Should this second paragraph be deleted as
unconstitutional the affirmative authority to transfer
the funds remains unconditioned. Therefore the Board
clearly has the authority to transfer the Pun&s provided
for in Section 9(a) of Article II.
          In urd          P Aa i ul u    . State Admu-
               l& N.W. l:O (de;. “,uit?924), the super-
ITativecontra
visory  B*i    of the agricultural college was, by the
Hon. Larry 0. Cox, Page 10   (V-1305)


appropriation bill, placed in the State Administrative
Board instead of the State Board of Agriculture which
previously had supervised the college. The Court held
that the provision in the appropriation bill transfer-
ring the supervision of the college was invalid and the
contention was made that the invalidity of the provi-
sion nullified the entire appropriation. In overruling
this contention, the Court stated:
          ,I  . This being true the question
    arises, Does the unconstitutional provision
    of the statute nullify the whole act? To
    hold that it doe.s,we must assume that the
    Legislature would not have made the appropri-
    ation except for the fact that the money was
    to be expended under the general supervisory
    control of the state administrative board.
    The main purpose of the Legislature was to
    grant an appropriation to the college to en-
    able it to carry on its extension work in co-
    operation with the Pederal authorities. A
    previous Legislature had committed the state
    to that policy. The appropriation was made
    to support one of the most Important activi-
    ties of the college. In making it the Legls-
    lature was but obeying the mandate of the Con-
    stitution that it should grant appropriations
    for the support of the college and its various
    activities. Section 10, art. 11, Constitution
    of 1908. It had become a fixed habit with
    this Legislature to confer upon the adminlstra-
    tive board general supervisory control over
    all appropriations. As has been heretofore
    pointed out, this appears Prom the various
    acts enacted at this same session. It is not
    reasonable to assume, therefore, that it in-
    tended the appropriation to fail If for any
    reason the state administrative board could
    not exercise a general supervisory control
    over its expenditure. As we have indicated,
    the appropriation was necassary to carry on
    the very important work of taking the college
    to the people. Its purpose was mainly  to bsns-
    fit those who could not reside at the college.
    The Legislature did not want this work to fail;
    it knew that an appropriation was necessary if
    It were to be continued. The main purposa was
    the appropriation. The supervisory control was
    but incidental, due to the legislative policy.
Hon. Larry 0. Cox, Page 11   (V-1305)


     In these circumstances we think that the Leg-
     islature did not intend the appropriation to
     fail, and that the attempt to confer uncon-
     stitutional authority on the state adminlstra-
     tive board did not nullify the balance of the
     act. . ..'I
          The Texas Legislature, in House Bill 426, placrd
supervisory control over many appropriations in the Legis-
lative Budget Board. The fact that the supervisory control
is unconstitutional does not have the effect of doing away
with the affirmative action which was conditioned upon the
Board's approval. The legislative history of the provisions
in question reveal that in the past the administrative body
which had.control of the State Hospitals and Special Schools
was always given the power to take the a'ctionsin question
without the approval of a Legislative Budget Board. This is
revealed in the following paragraph from your request:
          "Inasmuch as previous legislatures have
     nearly always provided for changes and substi-
     tutions of amounts appropriated to the State
     Board of Control and the Board for Texas State
     Hospitals, it is the interpretation of this
     department that the Legislature intended that
     the Board for Texas State Hospitals and Special
     Schools should have the authority to add or
     substitute position titles in accordance with
     Section 2 and to tran~sferappropriations in ac-
     cordance with Section 7 of,the appropriation
     bill. Prior to 1949 the State Board of Con-
     trol was in charge of the eleemosynary institu-
     tions, and we have checked the riders to the
     appropriation bills back to 1941, and we find
     that transfer of appropriations was allowed by
     the Legislature to the State Board of Control
     and to the Hospital Board in one form or an-
     other each biennium."
          A somewhat similar situation was involved in Moorq
V. ShenQa    144 Tex. 537, 192 S.W.2d 559 (1946). The rider
involved in'that case required the clerks of all courts to
de:lositfees for making unofficial copies In the State treas-
ury and to execute an affidavit that such deposit had been
made, and provided that
          II
           . . ., The Comptroller shall not issue a
     warrant in payment of the salary of any such
Hon. Larry 0. Cox, Page 12   07-1305)


     employee for any month unless and until the
     affidavit required herein has been filed for
     said previous month.*
         Holding the rider invalid, the Court said:
         'There being no statutory duty requir-
    ing petitioners to furnish uncertified, un-
    official copies of opinions of the Courts of
    civil Appeals, no statute Pixing any fee for
    such services, and no Valid statute requiring
    that money received therefor be deposited in
    the State Treasury there is no debt owing
    by petitioners to <he State. Since petition-
    ers are not required to account to the State
    Treasurer, under the existing statutes, for
    such receipts, they cannot be required to ex-
    ecute an affidavit that such funds have been
    deposited in the State Treasury as a condi-
    tion for the delivery of their monthly salary
    warrants."
          Thus, under similar circumstances, the Texas     -,
Supreme Court has held the appropriation to be effect-
ive, although the attached rider was negative in form
and the condition was held invalid.
          It is our opinion, therefore that the Board
for Texas State Hospitals and Special &ohools has the
authority to perform the functions set out in your ques-
tions. Under the holding in Attorney General's Opinion
V-1254 (19511, the approval of the Legislative Budget
Board is not required.


          The Board for Texas State Hospitals and
     Special Schools has authority to add or sub-
     stitute position titles under Sec. 2 of Art.
     II of H.B. 426, Acts 52nd Leg., R.S. 1951, ch.
     499, pe 1228. The Board may transfer appro-
     priations between line items of the lnstitu-
     tions under its control or between institu-
     tions and the central office as provided in
     Sec. 7(a) of Art. II of H.B. 426, m,     and
     expend appropriated funds for renovation or
     new construction of warehouse facilities as
     provided in Sec. 10(c) of Art. II of H.B. 426,
     -*
Hon. Larry 0. Cox, Page 13   (V-1305)



         The Board also has the authority to
    make the use and transfer of funds appro-
    priated to the Board's Special Reserve
    Account as provided in Section o(a) of
    Article II of House Bill 426, m,     for
    food, clothing, dry goods, medicine, etc.,
    to meet unforeseen emergencies in State
    schools and hospitals.
          The unconstitutionality of the re-
     quirement of Legislative Budget Board ap-
     proval prior to exercise of the above func-
     tions by the State Board for Hospitals and
     Special Schools does not render the entire
     functions and appropriations invalid.
                                 Yours very truly,
                                   PRICE DANIEL
                                 Attorney General


APPROVED:
C. x. Richards
Trial & Appellate Division
Everett Hutchinson
Executive Assistant
                                        Assistants
Charles D. Mathews
First Assistant
EJ:EWT:wb
