                            NO. 3082

            opinion construing “Limitation Of Payments”
            clause of Senate Bill 427. Regular Session,
            46th Legislature,  and holding
            1.   Clause is constitutional.
            2;   Board’s authority relates   only to surpluses
                 in funds dedicated or devoted to a depart-
                 ment’s use and benefit,   but not appropriated
                 to that department elsewhere than in the
                 “Limitation of Payments” clause.
            3.   Where authority    of department to employ
                 additional  salaried workers is denied,
                 Board has not the power to authorize    such
                 employment.
            4.   Board has no authority to authorize use of
                 surplus, or any portion of it, for “travel-
                 ling expense ;”
            5.   Board has authority    to.deal only with
                 “actual” surpluses,    not with “estimated”
                 surpluses.



                   OFFICE OF THE ATTORNEYGENERAL

                                              August 30,   1939
Hon. W. Lee O’Daniel
Governor of Texas
Austin, Texas
Dear Sir:                           Opinion No. O-1321
                                    Re: Gsneral A propriation  Bill--
                                        Oonstitut Ponality of and auth-
                                        ority, conferred upon the
                                        *Limitation or Payments”
                                        Board.
            We have for acknowledgment      our letter   of August 23rd,
wherein you request the opinion of th f s Department upon the fol-
lowing questions:
            “1.  Did the Legislature     have the constituional
      authority   to confer upon the Board which was created
      under the paragraph headed VLimitstion of Payments’ Of
      Section 2 of Senate Bill No. 427, of the Regular Session
      of the Forty-sixth    Legislature,   such powers as are given
      to it In the Bill?
          “2.  If question No. 1 is answered in the affirmative,
     then to what fund does the authority of the Board relate7
          “3.   If question No. 1 is answered in the afflrmativs,
     may the Board, in inatanoes where the speirial rider fOllOw-
     ing a particular   departmental appropriation, which provides
     that ‘No salaries   except extra labor, shall be paid except
Hon. W. Lee G’Daniel,     Page 2


      those herein specifically    itemized,’   authorize
      the employment of additional     salaried individuals
      by department in the event the availability       of
      funds and the necessity   for using the same for
      such purpose is~properly    demonstrated to the
      Board by the department head.
            “4.  May the Board, in any event, allow ad-
      ditional  amounts for ‘traveling   expenses’ over
      and above the amounts specifically    itemized for
      such purposes?
            “5.    If question No. 1 is answered in the.
      affirmative,    then please advise whether the Board
      is authorized to deal with an estimated surplus,
      or must there be on hand in the special fund
      an actual surplus before the Board is authorized
      to allow additional     expenditures?”
            In reply to your first     question,    we beg to advise
that in our opinion the provision        of the General Aupropria-
tion Bill cresting     the “Limitation    of Payments” Board, com-
posed of the Governor, the Treasurer,          and the Attorney Ganeral,
is a valid exercise     of the legislative      authority,     under
the Constitution     of the State of Texas.       The “Limitation      of
Payments” clause is, in effect,       an appropriation        of certain
funds for expenditure for stated purposes by the particular
department of the State government, upon the happening of
a certain condition,     that is, that it shall become neces-
sary to expend such funds in order that the functions.of               the
particular    department may be performed adequately.            The
appropriation    is made by the Legislature,       and is complete
and the function of the Board is not to appropriate              moneys,
but to determine whether the conditions          authorizina     emendi-
;u&of     moneys appropriated    by the Legislature        actually
       . The Board acts in the capacity of a fact-finding
agenoy, to determine whether there is actually             a sur lus
available   for expenditure,   and to determine whether Pt is
necessary,    in order that the functions       of the particular
deDartment may be performed adeauately.          that such surplus
or-a portion thereof be expended.           -.
              The validity  of such a provision    in an appropria-
 tion bill was recognized     in the case of Terre11 vs. Sparks,
‘135 S.W. 519, wherein the Supreme Court        of this State held
 sufficiently    specific  as an appropriation,    an appropriation
 bill providing    a sum of money for the use of the Attorney
 General for certain purposes,     to be expended by him, by and
with the approval of the Governor.
             See also State ex rel. Normal Schools vs. Zimmer-
man, 183 Wis. 132, 197 N.W. 823.          Cases apparently contra
will be found in 91 A.L.R. note at page 1512, but in most
of the cases there cited,     the constitutional       requirements
are different    from those in Texas.       We find nothing in our
Constitution    expressly or impliedly prohibiting         the Legisla-
ture from making an appropriation         of moneys to be expended
upon the happening of a condition         subsequent, and from
setting up a fact-finding     agency to determine whether or not
such aondition     subsequent has actually      occurred,   so as to
authorize the expenditure of suoh appropriated            sums.
Hon. W. Lee O’Daniel,      Page 3


           Your second question        may be restated      as follows:
            “To what type of surplus fund does the author-
     ity   of the ‘Limitation of Payments’ Bosrd relate?”
          The Limitation    of Payments clause, 9s it appears
in the General Rider to the General Appropriation    Bill of
the 46th Legislature,   reads as follows:
            wLimitation of Payments.          Except as otherwise
     provided,    whenever, by virtue of the provisions               of
     this Act, items are to be paid out of fees, receipts,
     special    funds or out of other funds available             for
     use by a department, it is the intention              of the
     Legislature     to limit expenditures        out of said fees,
     receipts,     special funds or other available            funds
     to the purposes and in the amounts itemized herein,
     and it is so provided.          If, however, the amount
     of the fees, receipts,        special    or other available
     funds herein referred to sre more than sufficient
     to pey the items herein designated to be paid
     therefrom,     the department to which the said fees,
     receipts,     special funds or other available            funds
     are appropriated       may, if necessary to adequately
     perform the functions        of said department, use any
     portion of said surplus fees, receipts,              special
     funds or other available          funds; provided,      however,
     that before doing so the head of such department
     shall,    under oath, make application,          jointly,    to
     the Governor, the Attorney General and the State
     Treasurer setting forth in detail the necessity
     for using such surplus fees, receipts,              special
     funds or other available         funds and itemizing the
     purposes for which the same are to be used.                 Unless
     the application       is approved by at least two of the
     three persons aforementioned,           the surplus fees,
     receipts,     special funds or other available            funds
     shall not be expended,          Any item set out in the
     application     can be deleted by decision          of a majority
     of the three persons aforementioned.              All appli-
     cations which are approved or denied must be signed
     by those voting to approve or deny same. Said
     applications,      after approval or rejection,           shall
     be riled with and retained by the State Auditor
     for a period of six months after the expiration
     of the biennium ending August 31, 1941, and shall
     remain open to public inspection            during said period.
     All surplus fees, receipts,           special funds, or other
     available     funds on hand at the end of each year
     of the biennium shall revert to the General Revenue
     Fund of this State unless otherwise prohibited                  by
     law, or unless otherwise provided herein.                 No
     salary paid additional         employees shall exceed the
     amount herein appropriated          for similar positions.
     All disbursements       shall be made on warrants issued
     by the Comptroller on the State Treasury.”
           In answering your second question,   the first   point
which presents itself   for consideration  is whether or not
the term “other available    funds.9 as used in the Limitation
of Payments clause,   is intended to include appropriations
made from the General Revenue Fund. It is to be observed
Bon. W. Lee O'Daniel,         Page 4


that the Limitation   of Payments clause does not refer to
appropriations  made from the General Revenue Fund, but only
relates  to surpluses existing    in fees, receipts, special
funds or other available   funds.
             It will be observed that inthree            separate and
distinct   places in the General Rider to the            G8neral Appro-
priation   Bill,  the Legislature  has referred          sp8oific9lly
to appropriations     from the General Fund, in          addition to
‘fees,   receipts   or special funds, and other          available    funds."
                In the section of the Oeneral Rider         relating      to
*traveling       expenses,"  this sentence is found:
                  "This provision   shall be applicable      whether
          the   item for traveling    expenses is to be paid out
          Of the'appropriation     from the General Fund, from
          fees, receipts     or special   funds collected     by virtue
          of certain laws of this State, or rrm other funds,
          (8XClUSiVe    of Federal funds) available       for use by
          a department."
                In the section    on "Salary   Payments,"    this   provision
is found:
                "Each department head'shall     number ponsecutively
          the salaried   positions  in his de artment for which
          an appropriation    is made herein 7 either out of the
          General Revenue Fund, fees      receipts,    special funds
          or out of other funds avsiiable      for use by such
          department) and opposite the number of the position,
          he shall set out the title    of the position      and the
          neme‘of the person employed to fill       the same."
                And in the section     on the "Preparation      of'the     Budget9
it   is    stated:
                 "The Board is directed   to designate,      with
          reference   to each position,   whether the s9me iS to
          be paid out of appropriation      from the General Revenue
          Fund, from fees and/or receipts       collected    by Virtue
          of the laws of this State. or from other available           funds.
          In the event the salary of a position         is to be paid
          jointly   out or an appropriation     from the General
          Revenue Fund, out of fess, receipts,         special funds,
          or out of other available     funds, the Board of Control
          ah911 indicate the portion paid or to be paid from
          each.    No salary items shall include an appropriation
          for more than one employee.       The Board shall follow
          the same prooedure in itemising other expenditures
          to be made by the departments of this State.9
            In the "Limitation    of Payments" clause the reference
to appropriations     from the General Fund is eliminated,    and
since in every other instance the Legislature,       where it desired
to include appropriations     from the General Fund, has specifio-
ally mentioned them, it must necessarily      be presumed that the
Legislature    intended to exoluse appropriations    from the
General Fund from the "Limitation      of Payments" clause.    This
conclusion   is reenforced,   when we observe that, in the very
nature of things,     there can be no surplus in an appropria-
tion from the General Fund, for, with respect to appropria-
tions from the General Fund, the Legislature       does not provide
Hon. W. Lee O'Daniel,     Page 5


a definite  and fixed sum of money to be available    at all
events, but provides for a'particular   purpose Only such sum
of money 9s may be necessary for that particular    purpose,
not to exceed the maximum amount made available    for such
purpose.   This conclusion is compelled by the provisions
of Section 1 of the General Appropriation   Bill,  which pro-
vides in part 9s follows:
             "That the several sums of money herein
      specified   or so much thereof as may be necessary,
      are hereby appropriated   out of any moneys in the
      State Treasury not otherwise appropriated,    . ..9
           Having determined that the authority   of the Board
csnnot relate to supposed surpluses existing    in appropriations
made from the General Fund, the question naturally    erises
as to whet type of funds it was contemplated by the Legislature
should be within the jurisdiction  of the Board set up in the
Limitation  of Payments clause.
          It is apparent thet it ~9s not intended thereby
to set up the Board 88 the supervising    agency by the auth-
ority of whiah all funds appropriated   by the Legislature
ror the various department should be spent, for the first
sentence in the "Limitation  of Payments" clause,   when oon-
sidered with the second sentence , clearly   evinces the intent
of the Legislature  that the Board should be authorized to
deal only with "surpluses,"  and that the departments are
free to expend such funds as 9re provided it by the Legis-
lature which do not come under the head of wsUrplus fundir~.w.
             The existence    of a surplus in a particular        special
fund may only be ascertained         by determining whether there
is in that special fund an amount of money in excess of
that which the Legislature         has specifically    authorized the
department to expend without procuring the permission of the
Board.     The first  sentence in the wLimitation of Payments"
clause would reflect      clearly    the intent of the Legislature
to limit the expenditures       which might be made by a Board
without authority from the Limitation           of Payments Board to
items of expenditures      for which specific       and limited amounts
have been provided in the Bill,         were it not for the use of
the phrase, at the beginning of the sentenoe.             "except as
otherwise provided."       Is this     hrase to be construed as
applicable    to the method provi fied for the expenditure         of
a surplus fund by the second sentence of the "Limitation
of Payments" clause, or is it to be construed as reflecting
the intent of the Legislature         that the various departments
shall limit their expenditure9         to those items for which
particular    and definitely     limited amounts are provided,
ercept,in    the instances where the Legislature          has seen fit
to appropriate     to a particular     department, by special rider,
the entire surplus, to the uses of the department for the
p;;formance    of the functions      and duties imposed upon it by
     .
             In determining this question,   it is essential  that
we exemine the Appropriation     Bill as a whole, having due
regard for the rule that the intention     of the Legislature
must be gathered from the entire instrument rather than from
a particular    and isolated portion thereof.     In making such
an examination of the entire Bill,     it becomes readily apparent
Hon. W.   Lee   O'Daniel,   Page 6


that there are two separate and distinct   classes. of'appro-
priations made from fees, rsc8iptS.   and Special funds.
            The first of these clams is typified   by such
departmental approprietions   as those for the Board of County
and Distritit Road Indebtedness,   the State Highway Department,
the State Department of Education, and the State Banking
Board.
             In each of these examples, there is found a common
characteristic.      In eech of the exampled situations,   there
is distinct     appropriation  out of a special fund for various
items definitely     limited as to purpose and amount. But in
each instance there is also, in addition to the items
definitely    limited 9s to purpose and amount, an appropriation
of the surplus limited as to purpose but unlimited as to
amount, excepting insofar es the amount of funds accruing
to the special fund during the period of time concerned will
automatically     operate to limit the amount available  for
expenditure.
           In the appropriation    for the State Banking Depart-
ment the Legislature  begins by appropriating    for various
purposes certain definite    end fixed amounts.   The special
rider ettached to and accompanying such appropriation       prdvides
in part as follows:

           "Subject to the limitations  set forth in the
     provisions   appearing at the end of this Act, all
     appropriations   herein made for the State Banking
     Department shall be paid out of their receipts,
     and the Commissioner shall reduce his expenditures
     so 9s not to exceed the actual receipts    collected.
           "...For  the purpose of enforcing  the credit
     union'laws of this State, all fees collected     under,
     and by virtue of Chapter 11, Acts of the 41st
     Legislature,   and all unexpended balances are here-
     by appropriated   to the State Banking Department."
           The appropriation   for the Board of County and Dis-
triot Road Indebtedness begins by providing     certain items
definite  as to amount end purpose, for administrative     expense,
said items to be paid out of the County and Road District
highway fund.    The special rider appearing immediately
following  this appropriation   as a part thereof,   reads in
part as follows:
           "All other receipts    and any prior year's
     balance in the County and District     Highway Fund
     are hereby appropriated     for each of said years
     for the purpose of carrying out the provisions      of
     Chapter 13, Oeneral Laws of the Third Called Ses-
     sion of the 42nd Legislature,     end any amendments
     thereto,   including the payment of road bonded
     indebtedness    and of special road districts   in ao-
     cordance with said laws, and amendments."
           For the division   of the Department of Education
styled "mployees     of the Textbook and Curriculum Division
and Textbook Depository"    there ere provided certain items
definitely   limited as to purpose and amount. The special
rider to the Department of Education appropriation     reads in
pert as follows:
Hon. W. Lee O'Daniel,   Page 7


           eFor the purposes provided by lew, there are
     reepproprieted    for the biennium ending August 31,
     1941, to the State Board of Education,     all incomes
     to, and any balance in, the evailable     School Fund
     and the State Textbook Funds, except 9s otherwise
     appropriated    by this Legislature,  to be expended
     and distributed     in accordance with the laws of this
     State; provided that textbooks may be purchased
     only from funds arising from the State ad valorem
     school tax."
          And in the appropriation  for the State Highway De-
partment, we find various items provided,  limited definitely
as to purpose and amount, the special rider appended thereto
however, providing a8 follows:
           "Provided,  that the above and foregoing     amounts
     appropriated   herein for the State Highway Department
     and for services    rendered for other agencies of the
     State government to the State Highway Department
     shell be paid out of the State Highway Fund upon
     warrants issued by the State Comptroller,       as provided
     by Chapter 1. Title 116, Revised Civil Statutes,         1925,
     and amendments thereto;     provided further that ell
     funds or balances of funds on hand September 1, 1939,
     and all funds aoming into the State Highway fund,
     and derived from registration      fees or other sources,
     after deducting the total of the speoii'io      appropria-
     tions herein made or hereby appropriated      to the
     State Highway Department for the establishment        of
     a system of state highways and the construction        and
     maintenance thereof,    as contemplated and set forth
     in Chapter 1, Title 116, and Chapter 186, general
     laws of the Regular Session of the 39th Legislature,
     and amendments thereto."
           The other distinct    class or type of eppr
from 9 special fund is composed of those instances %%~,"iiY
the Legislature  has appropriated      to the particular  department,
out of the special fund dedicated to the use of that de srt-
ment, certain items definitely      limited as to purpose   anz
amount, and has made no disposition       of the surplus in such
special  fund by special rider appended to the particular
departmental appropriation.      Typical of this class of appro-.
priation  are the appropriations      for the State Board of Barber
Examiners, State Board of Dental Examiners, and the State
Board of Hairdressers   and Cosmetologists.
           In the appropriation     for the Stete Board of Barber
Examiners, the Legislature,     after providing certain items
definitely  limited as to purpose      end amount, continues in
this special rider as follows:
            "Subject to the limitations  set forth in the
     provisions    appearing at the end of this Act, the
     foregoing    amounts for the Stete Board of Barber Ex-
     aminers are hereby appropriated    out of the State
     Board Barber Examiners fund ,..w,'
          And in the appropriation     for      the State Board of
Dental Examiners, the Lsgisleture,      after     providing certain
Hon. W. Lee O'Daniel,   Page S


items definitely  limited as to purpose   and amount, continues
in the special rider appended thereto,    as follows:
            "Subjeot to the limitations  set forth in the
     provisions    appearing at the end of this Act, all
     appropriations    made herein for the State Board of
     Dental Examiners, shall be paid out of their local
     receipts.w
            And in the appropriation   for the State Board of
Hairdressers    and Cosmetologists,  the Legislature, after
providing   certain items definitely   limited as to subject
and amount, continues in the special rider appended to
that appropriation,    as follows:
          "Subject to the limitations      set forth in
     the provisions   appearing at the end of this Act,
     all appropriations    made herein for the State Board
     of Hairdressers    and Cosmetologists   shall be paid
     out of their local receipts."
           In none of these departmental appropriations,    or
in others of that type, do we find any attempt on the part
of the Legislature  to provide for the disposition   of any
surplus in the special fund, by the special rider appended
to the particular  departmental appropriation.
            We are thus confronted with the problem. of whether
the Legislature    intended the wLimitation of Payments" clause
to apply only to those instances where it has by the special
rider 9 pended to the particular       departmental appropriation,
appropr Pated the surplus in the speoiel fund to the use and
benefit   of the particular    department, or, on the other hand,
were the words "exce t as otherwise provided"        intended to
eliminate   those spec T)fit ap ro riations    of the surplus~from
the application    of the "LimPta t ion of Payments" clause,
end was that olause,     therefore,   intended as a conditional
appropriation    of those surpluses which might exist in special
funds, in instances where the Legislature        had, by rider to
the articular     departmental appropriation      made no effort
to p Pace such surpluses at the disposal       oP the particular
department?
          When there are two possible interpretations       which
          ted upon n enaotment f the Legislat
                                                con-
~~~~~.“~~~n~~4sh~g~~aE~~st~~~t8see$i~~1eoB8~~~~~F~
struction  which leads to ai unreasonable and absurd conclu-
sion, if there is another possible   interpretation  which is
more rational  and sensible.  The rule   is stated in 25 Ruling
Case Law, at page 1019, as follows:
           "While the Legislature   may pass absurd legis-
     lation if it is so inclined,    before e aourt will
     adopt such a construction    of a statute as will lead
     to an absurdity,  it will inquire whether there is
     not some other interpretation    possible  whioh will
     not lead to that result.     If the language employed
     admits of two constructions    and according to one of
     them the enactment would be absurd, if not mischievous,
     while according to the other it will be reasonable
     and wholesome, the construction     which will lead to
     an absurd result should be avoided.”
Hon. W. Lee O'Daniel,      Page 9


           In support of these conclusions, that work cites
many suthorities  from the Supreme Court of the United States.
             And by this   same work it   is stated,   at page 1025,
that:
              "Where great inoonveni8noe will   result from            .
        a particular  construction  that consturction  is to
        be avoided, unless the meaning of the Legislature
        be plain."
           Applying such rules to the problem under considera-
tion, it would seem to be manifest thet the Legislature         did
not intend that the "Limitation     of Payment" clause    should
apply to such surpluses as were definitely     appropriated     by
the Legislature   to the use of a particular   department by
special rider to the departmental appropriation.        To hold
otherwise,  would be to say that the Legislature      intended
to create an absurd and mischievous situation      calculated
to impair materially   the functions   of State government,
and to result in great inconvenience     in its administration.
             At the outset it must be remebered that the
members of the Limitation    of Payments Board are public
officials    upon whom most onerous duties,   occupying prac-
tically   all of their time, have been imposed by lsw.      To
impose upon them the additional     duty, in effect,   of super-
vising completely the expenditure of funds by such depart-
ments as the State Highway Department and the Board of
County and District    Road Indebtedness,   as well as the State
Board of Education, would be to impair materially       the per-
formance of those duties the discharge of which is made
their prime function by the Constitution      and laws which
created their positions.
           As illustrating   the absurdity of such an interpre-
tation,  we may examine the appropriation    for the Board of
County and District    Road Indebtedness.   The prime function
for which this Board was crested by law is that of disburs-
ing certain State funds, for certain State purposes,      in
the amount and according to the manner set up in great
detail by the law which gives the Board its being.      Was it
intended by the Legislature    that before this Board could
perform the very function for which it was oreated,     that
it should be required to demonstrate to the Limitation       of
Payments Board the necessity    for so doing?
            We pass to the appropriation    for the State High-
way Department.      The State Highway Department is created
by statute for the purpose of establishing,       constructing,
and maintaining a system of highways in this State.          The
laws which create the Board have made it the prime function
and duty ofth8tBoard      to determine where highways should
be built,   of what they should be constructed,      and how much
and what character of cement should be used in their con-
struction,    if cement be used at all, when the necessity
for maintenance work exists,      and what character of mainten-
ance work need be done in order to preserve and protect
such highways and insure maximum life and servicability.
The determination     of such questions oalls for a high degree
of familiarity    with the subject , and for expert technical
knowledge.     Was it intended by the Legislature    that, as
to the Highway Department, the Governor, the Attorney General,
and the State Treasurer,      the members of the Limitation     of
Hon. W. Lee O'Daniel,      Page 10


Payments Board, should determine the question as to whether
or not it was necessary to build a strip of highway from
Whosit to whatsit,    the route the highway should take (that
is, whether it was necessary that the highway go by the
particular   route designated by the Highway Department),
whether the qwtity     or type of cement reaommended by
the Highway Department for the particular     project was
actually   necessary,  or whether s lesser amount and an
inferior   grade might do', or whether money should be spent
for maintaining    a particular  stretch of highway, as recom-
mended by the State Highway Department, instead Of abandon-
ing it and building a new one?
           Alas it the intention    of the Legislature,  with
 respect to the appropriation    for the State Banking Department,
 for the purpose of enforcing the credit union laws
 of the State of Texas, that the Limitation      of Payments Board
 should determine what was necessary to be done by the Bank-
 ing Department to enforce the credit union laws of the
 State and how much money should be expended for that pur-
 pose?   Was it intended by the Legislature,     with respect
 to the State Board of Education that the Limitation      Of
 Payments Board should determine whether it was really necess-
ary, if recommended by the State Board of Education, that
a certain number of textbooks be purchased, and that they
be of the particular   type recommended by that Board?
           Was it  intended that the'niembers Of the Limitation
of Payments Board read the textbooks which the State Depart-
ment of Education proposes to purchase and determine thereby
whether the necessity   for purchasing a particular   textbook
actually  existed,  or whether such textbook ~9s out-moded
and out-dated and, therefore,    it was not necessary that it
be purchased?
             It seems to us that to ask these questions       is to
provide the answers thereto.        Certainly such 9 ridiculous
and absurd situation      was not within the contemplation      of
the Legislature.      It was definitely    not intended by the
Legislature,    it seems to us, that the administration       of such
affairs   of government should be taken cut of the hands of
those qualified     and designated by the general laws ;B;E
State to perform them, and placed in the hands of
whose experience,     training,  and opportunity    of knowledge
of the particular     subjects  involved is and must necessarily
be and remain so limited that the greatest         confusion and
inconvenience     in the administration    of such affairs   of the
State government would necessarily        ensue.

                                   the points we make above,
we call   attention   to         riation made by the Legis-
                                 on of the Board of Insurance
Oommissioners.   We find here that the Legislature    has appro-
priated oertain items definitely    limited 9s to purpose and
amount out of a special   fund and, by its rider, has appro-
priated not only such an amount from the special fund as
is necessary to take care of the specific     items provided,
but has also appropriated   the entire balance of the fund
to be used by the Department for employing additional      help
and for defraying all other expenses necessary for the
administration  of Chapter 152, of the General Laws of the
Regular Session of the 42nd Legislature,     and Chapter 264
Hon. W. Lee O'Daniel,     Page 11


of the General Laws of the 44th Legislature,   and any and
all amendments thereto and as amended by Senate Bill 397,
Acts, Regular Session of the 46th Legislature,   1939, and
has further provided in said special rider as follows:
             mPhe head of the department shall make ap-
      plication   to the Board of Control and receive its
      approval in writing before employees, other than
      those itemized in the Appropriation     Bill, are
      employed.    Said application   shall set out the
      reaaona and necessities     ror the employment of
      the additional   employees."
            Was the absurdity intended here by the Legislature
that this Department should apply to the Board Of Control
for permission to employ additional      help, demonstrating
the necessity   therefor,   and thereupon should also apply
to the Limitation    of Payments 3oard for the same authority?
If one of these Boards granted such permission and the
other refused to do so, which action should govern?
It seems to ua that by this particular       rider, the Legis-
lature has definitely     demonstrated its intention   that
appropriations   of surpluses of this character,     made by
the special rider to the particular      depertmental appro-
priation,   ere to be available    for the use of the particu-
lar department according to the terms of the special rider,
and are not intended to be available      for the uses of the
Department only in the event that the necessity       for using
them for such purposes is demonstrated to the Board in
the manner provided in the *Limitation       of Payments" clause
in the general rider.
             The "Limitation    of Payments" clause is suscep-
tible of a construction      which appears to be much more
reasonable,    and it is that construction       which we adopt as
reflecting    the true intent and purpose of the Legislature
in enacting such a provision.         Such interpretation     is that
it was intended by the Legislature,         in the enactment of
the "Limitation    of Payments" clause,      to make a conditional
appropriation    of surpluses in certain special funds, in
instances where those surpluses had not been appropriated
and made available     to the particular     department'by special
rider attached to and made a part of the particular             depart-
mental appropriation.       This construction,     it appears to us,
is more nearly in accord with reason, for it will be observ-
ed that the departments thus coming under the jurisdiction
of the Board are, in the main, those departments of the
State government whose prime function is not that of ex-
pending State moneys for the accomplishing           of certain
State purposes, but, on the contrary,          is that of rendering
* certain type of service.        They build no roads; they buy
no books; they discharge no bonded indebtedness           for the
State.     As to them, the Limitation      of Payments Board may
operate effectively     and efficiently,     for the necessity
that they be permitted to use the surplus in their particular
fund arises from the possible       need for additional      clerical
help, or more money for postage,         and stationery.     The
purchase of material supplies and equipment is but in-
cidental    to and a small part of the work of the department,
not its chief function.-
          The "Limitation   of Payments" clause may, perhaps,
be made the more understandable    by restating   the first
f~;;ion of it, but preserving   its original    meaning, as fol-
Hon. W. Lee O'Daniel,            Page 12


                   "It is the intention     of the Legislature
            that expenditures      out of fees, receipts,       Special
            funds or other available       funds shall be limited
            to the purposes and in the amount itemized in
            this Bill,    except in those instances where we
            have provided otherwise.        It those instances
            where provision      otherwise has not been specifio-
            ally made herein, if the amount of the fees, re-
            ceipts,    special or other available        funds herein
            referred to, are more than sufficient           to pay the
            items to be paid therefrom,        the department to
            which the said items out of the said fees,.
            receipts,    special funds or other available         funds
            are appropriated      may, if necessary to adequately
            perform the function of such department, use
            any portion of said surplus fees, receipts,             special
            funds or other available       funds, provided that be-
            fore doing so, the head of such department shall,
            under oath, make application,         jointly,    t0 the
            Governor, the Attorney General, and the State
            Treasurer,     setting forth in detail the necessity
            for using such surplus fees, receipts,            speaial
            funds or other available       funds and itemizing
            the purposes for which the same are to be used."

           Answering your second question specifically,
therefore,  we are of the opinion that the authority of the
Board relates  only to those surpluses existing   in funds
dedicated or devoted to the uses of a partioular     depart-
ment, where an appropriation   of such surplus in such dedi-
cated funds to the particular   department is not to be
found elsewhere than in the Limitation    of Payments clause.
             In answer to your third question,     we beg to advise
that, in those instances where the Legislature        has specifically
limited the authority      of a perticular   department to expend
its funds by providing that "no salary except extra labor
shall be paid except those herein specifically         itemized,W
this limitation      upon the purposes for which appropriated
moneys may be expended binds not only the particular
department, but also the Limitation        of Payments Board.
In the very nature of thin s, t3is must necessarily           be
true, for, though the Boar f should authorize the e en-
dlture of a surnlus for the hiring of additional          aa
                                                           "p aried
employees in such an instance,       the De artment would never-
theless continue to be bound by this flimitation         upon its
authority     for we find in the General Ap roprietion        Bill
fonJ,apt&$~tq conferr d u on the B rd          Ejher ex r ssl      or
                o euthorfze the exoen88tu$eeo     moneyg %or 8ur-
poses for which the Legislature       has stated and provided
-c-----“,




specifically     that the Department shall not spend them.
          The observations    stated above, in the immediately
preceding paragraph, apply even more forcibly     to the Board's
authority to allow additional     expenditures for traveling
expenses out of surpluses.     In the General Rider to the
General Appropriation   Bill, we find the fo,llowing:
                  "It is provided that no expenditure  shall
            be made for traveling   expenses by any department
            of this State in exoess of the amount of money
            itemized herein for said purpose.    This provi-
            sion shall be applicable   whether the item for
Hon. W. Lee O’Daniel,    Page 13


      traveling   expenses is to be paid out of the
      appropriation   from the General Fund, from
      fees, receipts    or special funds collected by
      virtue of certain laws of this State, or
      from other funds (exclusive    of Federal funds)
      available   for use by a department.*
           This provisionis       clear,   explicit,  and needs
no construction,   for it amounts to an absolute prohibition
against the expenditure of a greater amount for traveling
expenses than hss been specifically         allowed for such pur-
pose by the Legislature     itself.      Sinoe we find no author-
ity conferred upon the Board, either expressly          or implied-
ly, to ignore this provision        in dealing with surpluses,
it follows that the board la without authority          to allow
any additional   amount whatsoever for traveling        expenses
to any department out of any funds over which it has juria-
diction.
           Answering your last question.       you are advised
that, in our opinion,   the Limitation      of Payments Board
is authorized to deal only with “actual surplus8s.w            In
other words, there must be on hand in the partioular
special fund subject to the jurisdiction         of the Board
an actual surplus before the Board may allow additional
expenditures,   and, of course,    it follows t’et the Board
may not authorize additional     expenditures      beyond the
amount of the actual surplus available.          The Limitstion
of Payments clause in terms relates        only to a presently
existing,   and not a prospectively     available,    surplus,
for it states:
             “If, however, the amount of the fees,    re-
      ceipts,    special or other available  funds hare-
      in referred to are more than sufficient      to
      pay the items herein designated to be paid there-
      from, the department to which the said fees,
      receipts,    special funds or other available   funds
      are appropriated,    may, if necessary to adequate-
      ly perform the functions    of said department, use
      any portion of said surplus fees, receipts,
      special funds, or other available     funds; . ..v
             To hold that the Board is authorized to allow
obligations    to be incurred by the Department against an
estimated surplus which may or may not accrue, would be
to do violence      to the legislative   intent, gleaned from
an examination of the entire appropriation        bill, that ex-
penditures made and obligations        incurred by any depart-
ment of the State government shall not exceed the amount
actually    available   to that Department for expenditure.
            We trust that the foregoing will serve to ade-
quately   answer the various questions presented by you.
                                        Yours very truly

                                   AlTORNEYGENERALOF TEXAS
                                   BY
                                              R. W. Fairchild
                                                    ASSiStSnt
RWF:pbp
Hon. W. Lee OIDaniel,   Page 14




            This opinion has been considered   in conference,
approved,   end ordered recorded.


                                  Gerald C. HaIann
                             ATI'ORNEYGENERAL OF TEXAS
