                THEATTORNEYGENERAL

                           OF..EXAS
                          AUSTIN ~&TEXAS
GFRALD C. MANN




   Honorable George H. Sheppard
   Comptroller of Public Accounts
   Austin, Texas
    Dear Sir:                 Opinion No. O-5537
                              Re: Construction of appropriation for
                                   Gas Utilities Division of the Rail-
                                   road Commission,
             This is in response to the request contained in your
    letter of August 10, 1943, for the opinion of thI.sdepartment
    construing the language of the departmental appropriation bill
    (Acts 1943, 48th Leg., R.S., Ch. 400, Vernon's Texas Session
    Law Service, pps. 885-1029) as it pertains to the license fees
    received by the Texas Railroad Commission in administering the
    provisions of Chapter 2 of the Acts of the 46th Legislature, pa
    501, (Art. 6053a, V,A.C.S.) regulating liquefied petroleum gas
    and containers therefor.
             Section 2b (2) and 2b (8) of Article 6053a, V.A,C.S,,
    are pertinent:
             "(2) For the purpose of defraying the expenses
        of admfnistering this Act, each pe:t=son,
                                                ffrm,
        assocfation, corporation, OP manufacturer engaged
        in the manufacture and/or assembly and sale of any
        apparatus to be used for the storage and/or dispens-
        ing of liquefied petroleum gas, or engaged Pn the
        business of transporting or dfspensing liquefied
        petroleum gas, and/or sale and/or Mstaliation of
        any apparaks for the storage and/or dispersing of
        liquefied petroleum gas, shall at the time of i,i-
        suance of such license, and annually thereafte:
        on or bet,weenSeptember 1st and September 15th of
        each calendar year pay to the Railroad Commission
        a special fee of Twenty-five Dollars ($25)0 If
        the license here provided for is issued after the
        month of September of any year, the fee shall be
        prordatedto the remaining portion of the year to
        August 31st following, but In no case less than
        one-fourth of the annual fee,

             “(83  A11 fees received by the State from
        licenses issued under thfs Act shall be made avail-
Honorable George H. Sheppard, page 2             o-5537



    able to the Railroad Commission for use in paying
    the legitimate expenses incurred in adminietering
    and enforcing the provisions of this Act, and for
    no other purpose; provided, however, that any ex-
    cess funds remaining a,tthe end of each two-year
    period shall go to the General Fund."
          It is patent that before any such sums are available to
the Commission the same must be appropriated by an Actof the
Legislature. Article 8, Section 6, Texas Constitution; Oninlon
No. O-700.
         The pertinent provisions of the departmental appropria-
tion bill follows:
         "242.     Commissioner, part salary     1,000 .oo     1,000 .oo
         "243.     Commissioner, part salary     1,ooo.oo      1,000 .oo
         "244.     Commissioner, part salary     1,ooo.oo      1,ooo.oo
         "245.     Director                      pg.;;         :,gy;
         "246 o    Chief Clerk and Accountant
         "247.     Stenographer                  1:350:00      1:350:00
         "248.     Stenographer                  1,,350.00     1,,350 .oo
         “249.     Stenographer                  1,350.oo      1,350 -00
         "250.     Chief Valuation Engineer      3,600.oo      3,600 000
         "251.     Valuation Engineer            2,400.oo      2,400.OO
         "252.     Chief Valuation Accountant    3,6OC.O0
         "253.     Chief Examiner                3,600.oo
         "254.     Senior Accountant             2,~00.00
         "255.     Senior Accountant             z:,,
                                                    400 .oo
         "256.     Senior Accountant:            ‘c,J.-O@
                                                        .gr,
         “257 0    Senior Accountant             2,?!OO“00
         “2gEi y   Pwt,er                           720 .oo
                             Total Salaries   $TTpFEE
                "Maintenance and Miscellaneous
         “259 0 Con4ingent  Expenses, sheriff!s
                and witness fees, traveling ex-
                penses ,,postage, books, station-,
                cry,,telephone, telegraph, file:?
                and oT;hernecessary help and ex-
                perses to be Incun?ed in.the aci-
                m~r~istrationand enforcement of
                and as contemplated by the pro-
                visions of Chapter 16 of the
                General Laws of Texas,,1925, as
                amonrjed                      i2,poo .OG l2,ooo .GO
         "Total Maintenance and I\i;iscella-
                neous                         l2,GOO .oo 12,ooo.c3
         "GraandTotal, Gas Utilities         ..~-7 ../~
                                                      .~
.   -




        Honorable George H. Sheppard, page 3         o-5537


                 ‘1% + * * *

                   "Subject to the limitations set forth in the
            provisions appearing at the end of this Act, the a-
            bove listed appropriations for the Gas Utilities
            Division are hereby appropriated out of and are to
            be paid only from the proceeds of the tax of one-
            fourth of one par cent of the gross income of gas
            utilities,   imposed by Article 6060, Revised Civil
            Statutes, and any amendments thereto, Any surplus
            remaining out of sard receipts at the end of any
            fiscal year, after paying salaries and other ex-
            penses as above specifically appropriated, shall be
            finally released in the General Fund.
                 "All fees received by the Railroad Commission
            from licenses issued under Chapter 2 (House Bill 792)
            Act of the 46th Legislature, during each of the
            fiscal years beginning September 1, 1943, and Septem-
            ber 1, 1944, or so much thereof as may be necessary,
            are hereby appropriated to the Railroad Commission
            for use in administerirg and enforcing the provi-
            sions of said Act, as itemized herein only, includ-
            in the payment of salaries, travel, supplies, equip-
            ment maintenance and all other necessary expenses.
            Provided that this appropriation shall be subject
            to the limitations set forth in the provisions ap-
            pearing at the end of this Act. Any.unexpended
            funds remaining in the Liquifled Petroleum Gas Fund
            at the close of each fiscal year shall revs? ,tothe
            General Revenue Fund."
                 While the Legrslature gave It no heading as i.tdid
        other sections of the appropriations for the Raikoad Commission
        such as "Main Office Division," "Motor Tran?;po:rtationDivision,'
        and "Oil and Gas Division," it is apparent tha,tthe foregoing
        itemization,,begin:ni.rg
                               with item 242 and endin,g,iJ-i,th
                                                             item 259,
        is intended as the appropriatfon for t,heGas Utflities Division.
                 The nex,tsucceeding paragraph quoted ii'oovespecifies
        that ali of tke !'
                         above listed appropriatrons for the 3as Utilit.Ies
        Division are hereb$yappropriated out of and are ,tobe paid only
        from the proceeds of the tax of one-fourt'hof one per cent of the
        gross income of gas utilities, imposed by Articie 6060,,Revised
        Cfvil Statutes, and any amendments thereto,'! It follok'sthat
        none of the items there listed can be used for a purpose other
        than administering the provisions of the Act o,fthe Third Called
        Session of the 31st Legislature, 1920, p. 18, Chapter 14; as a-
        mended by the Act, of 1937, 45th Legislature, E,E, 1017; as
        amended by the Act of 1939, 46.bhLegislature, page 501. See
                                                                 .    .




Honorable George H. Sheppard, page 4         O-5537



Article 6066, V.A.C.S., and Opinions No. O-700 and O-3068   of
this department.
         Your problem is the meaning of the language "as item-
ized herein only" in the last paragraph of the appropriation bill
quoted above.
         We note that this paragraph is .substantially
                                             ,   ,-    identical
with a paragraph in the last preceding aeparcmensal appropria-
tion bill with the exception of the language 'as itemized herein
0nly.l'               1 of the Acts of the 47th Legislature,
        3ee v,
Regular Session, 19 1, at page 1274. We also note that the sense
of the sentence with the phrase added apparently is "all fees
received by the Railroad Commission (under Article 6053a, V.A.C.3.)
are hereby appropriated to the Railroad Commission for use in
administering and enforcing the provisions of said Act, including
the payment of salaries, travel, supplies, equipment, maintenance
and all other necessary expenses but only as itemized in this
appropriation bill,"
         NO itemization is found. Does this mean that no appro-
priation of the fund is made? If so, what purpose can the Legis-
lature have had in enacting the'rider?
         In our opinion, the language of the rider is subject to
two constructions. It may mean that only the amounts itemized
are appropriated, in which event, of course, there Is no appro-
priation made. Or it may mean that the fees are appropriated in
lump sum for administering the act, such expenditures from the
appropriation to be llmited to the purposes and amounts indicated
in such items as the Legislature might provide. In the first
case, the words 'as itemized herein" are regarded as components
of the appropriation itself; in the second, as words of limlta-
tion, controlling the expenditure of the kmp sum appropriation,
Given the second construction, ,thefailure to provide items indi-
cates a legislative purpose not to limit the expenditure of the
lump sum appropriation, but to allow its expenX?u:re in the dis-
cretion of the aCommIssionfor exptinsesinvolved in administering
the law.
         We are persuaded that the second is the correct cor.stn,c-
tion. Thus interpreted, the rider has meaning;.given ,thefirst
construction, it is nugatory and no reason can be assigned why
the Legislature should have incorporated it in the bill.
         You are t~hereforeadvised that the rider appropriates
the described fees in lump sum for defraying expenses of adminis-
tering the Act mentioned therein.
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        Honorable George H. Sheppard, page 5        o-5537



                                       Yours very truly
                                     ATTORNEY GENERAL OF TEXAS

                                        By s/Jas. D. Sullen
                                             Jas. D. Srmxllen
                                             Assistant
        JD3:EP:wc
        APPROVED SEP 10, 1943
        s/Gerald C. Mann
        ATTORNEY GENERAL OF TEXAS
        This Opinion Considered And Approved In Limited Conference
