-._        TEE     ATJYORNEY            G&&
                        OF ?rExAs
                        AUETIYN~~.TIEXAE



                       February 35,    1952

      Hon. John Ii. Winters      Opinion Ror V-1413
      IfxecutiVe Director
      State Department of        Ret   Authority of Waco State
         Public Welfare                Home to participate     in
      Austin, Texas                    Board Local Fund appro-
                                       priations    and In the
                                       Special Reserve Account,
                                       and authority to trans-
                                       fer funds between line
                                       item appropriations
                                       made to the Home for the
                                       ;;ey;;      ending August
      Dear Sir:                            9     .
                 You have requested an opinion of this office
      on the several questions   detailed below pertafnlng  to
      the appropriations  made to the Waco State Home for the
      biennium ending August 31, 1953.
                  In 1949 the Legislature   transferred    the man-
      agement and control of the Waco State          me to the Board
      for State Hospitals and Special SchoolsBP from the Board
      of Control.    H.B. 1, Acts Xst Leg., B.S. 1949, ch. 316,
          588 (Art. 3174b, V.C.S. 1. As a consequence the
      8'oard was In control   of the Waco Home at the time of
      passage of the appropriation     bL11 by the 52nd Leglsla-
      ture, and all financial    provlsions   relating   to the Home
      in the general appropriation     bill for the biennium be-
        innin  September 1 1951 and ending August 31, 1953
      7H.B. 626, Acts 52nA Leg ., B.S. 1951, ch. 499, p. 1228)
      are couched In terms of authority     to be exercised by
      the Board.
                 However, the management and control of the
      Waco State Rome was transferred  from the Board to the
      State Department of Public Welfare by the 52nd Legisla-
      ture, effective  October 1, 19      H.B. 540 Acts 52nd
      Leg., R.S. 1951a ch. 485, PO ? 66 (Art. 325$b, V.C.S.) .
                 This transfer has raised many questions per-
      taining to fiscal   operations   of the Waco State Home for
      the remainder of this biennium. A determination      of the
      authority now vested in the Department of Public Wdfare,
         &/ The Board for State Hospitals     and Special Schools
      will hereafter be referred     to as the Board.
Hon. John 8. Winters,        page 2    (V-1413)
                                                                 ,   i

and that which remains in the Board, if any with
regard to the Waco State Home finances for 4he re-
mainder of this biennium will eliminate many of
these problems.
               Section   I of House Bill   540, suurq,    pro-
vides:
                 “Effective    ‘the first   day of the month
         after this Act becomes law, the management,
         government ,~~and control of the Waco State
         Home, Waco, Texas shall be and are hereby
         transferred      from 4he Board of Texas State
         Hospitals     and Special Schools to the State
         Department of Public Welfare and all other
         facilities      hereafter    established  by the
         State for the care and education of depend-
         ent and neglected        children shall be under
         the control      and management of the State De-
         partment of Public Welfare.
               “The State Department of Public Wel-
         fare shall succeed to and be vested with
         all the rights,    powers, duties,  facilities,
         personnel,   records   and appropriations      now
         held and which wili be appropriated       for the
         biennium beginning September 1, 195l by the
         Board for Texas State Hospitals     and Special
         Schools for the ear6 of-dependent      and neg-
         lected children now in, or who may hereafter
         ;zx;;mmltted   to the Waco State Home, Waco,
               SW
           The critical  provision above Is the sta e-
ment that “The State Department of Public Welfare .2
shall succeed to and be vested with all the w,
powerg, dutleg,   . . . and ~aunroDrlat1 m go held
D . . by the Board- for Texas State Hospitals and Spe-
cial Schools for the care of dependent and neglected
children   . . .n3
            It will be noted that this Act transferred
the rights,   powers,.dutles,     and appropriations “~pk!
j’ by the Board.       Tt   is therefore essential to de-
 termkng the moment in time contemplated by the words

  y    The State Department of Public Welfare            will
hereafter  be referred   togas the Department.
  y    Emphasis~ added,throughout.
Eon. John H. Winters,     page 3     (V-1413)


%ow held” so we can ascertain  what rights   powers,
and duties were held by the Board at that {Ime.
           In the early case of Fisher     . Silaon. 95
Tax. 234, 66 S.W. 447 (1902) it Is heli that the word
“now” In an Act providing for notice of sale as “now
required by lawn meant that notice was to be given In
the manner required by law at the time the Act In
question became effective.     Applying this rule to the
facts before us, we find that the provisions      of House
Bill !%O became effective    on October 1, 19%.     There-
fore, the problem for determination     Is the rights,
powers, duties    and appropriations   held by the Board
on October 1, 1951.
           The provision    transferring    appropriations
“Which will be a proprlated      for the biennium beginning
September 1, 19 8” could Indicate        that the “now held”
provision  related to some other appropriations         made
prior to September & 199.          This seeming inconsistency
is explained by the hact that the bill contained an em-
ergency provision,    Indicating    that it was contemplated
that the bill   go into effect     immediately, which would
have been prior to September 1, 195l.         However, the
Senate passed the bill fiva vote, and, under the provi-
sions of Article   III, Section 39 of the Texas Constitu-
tion the Act could not become law qtil         90 days after
the adjournment of the Legislature.          The result of
this enforced wait Is that the transfer        of approprla-
tlons @‘now held” and “appropriations       which will be ap-
propriated  for the biennium beginning September 1, lm”
are synonymous terms.
             Finally,    It must be noted that the rights,
powers, duties,       and appropriations     transferred   were
those held by.the Board for the care of dependent and
neglected children.         This did not transfer rights,       pow-
ers, duties,      and appropriations     held by the Board, the
exercise    of which, with regard to the Home, would af-
fect other institutions        which remain under the juris-
diction    of the Board.      That the Legislature      took from
the Board only those rights,         powers, duties,     and appro-
priations    which the Board held or exercised on behalf
of the Home alone Is clear from a reading of the whole
Act, including      the emergency clause.        There was obvious-
ly no Intent to give to the Department any form of au-
thority which, in Its exercise,          would in some manner
affect    Institutions     other than the Waco Home.
  it/    The act became law on September 7, 1951,          the 52nd
Legislature   having adjourned on June 8, 195l.
Hon. John B. Winters,   page 4   (V-1413)


          With the above holdings in mind, we will
now turn to your specific questions.
               Will the Waco Home be eligible for
the $36,5Ot*appropriation  made to it for the 1952-
53 fiscal year In Line Items 30, 31, and 32, all
of which come from the Board Local Fund? H.B. 426,
Acts 52nd Leg., B.S. 195l, ch. 499, p. 1273.
           You state that the Comptroller of Public
Accounts Is of the opinion that you cannot share in
the Board Local Fund during the 1952-53 fiscal     year
since you will not be under the jurisdiction     of the
Board at any time during that fiscal    year.  We have
reached a diiferent  conclusion.    The Act transfers
to the Department all rights held by the Board on
behalf of the Home on October 1 195l.. One of the
rights held for the Home on tha i date was the right
given by the appropriation    bill (H.B. 426) to share
Zn the Board Local Fund to the extent of $36,500 in
1952-53.   This right is now held by the Department
on the Home’s behalf and the Home Is entitled     to
that amount at the proper time.
           At the sane time it must be pointed out
that one of the duties placed upon the Board on be-
half of the Home by the general appropriation   bill
is the duty of placing enumerated local funds in the
Board Local Fund. This duty has now passed to the
Department, and it is still   required that the proper
local funds of the Home be placed in the Board Local
Fund and not in some other local fund.    Sec. 10, Art.
II, H.B. 426, suura, at p. 12%.
          2. Would the Waco State Home be eligible
to share in the $600 000 Special Reserve Account cre-
ated by Section 9a oh Article  II of House Bill 426
(pa 1294) if the need arose for emergency funds?
           On October 1 1951, the Board held on be-
half of the Home the &ht       to share in the Special
Reserve Account if the necessity     for it arose.     This
right was transferred   to the Department, and it now
holds this right on behalf of the Home. However,
the decision   of the necessity   for funds and the anou&
to be received by each is held by the Board on behalf
of all hospitals   and special   schools.  Therefore
sinzthe     use of the power would affect all institu-
tions under Its jurlsdictlon     the Board still   retains
    I




             Hon. John H. Viatars,      page 5   .(V-l413)


             the right of determlnlng the need for           and extent
             to which the Waco Home may participate           In this fond.
                        3. May the Department transfer funds from
             one line Item appropriation  to the other and speci-
             fically from General Revenue Fund line igems to Board
             Local Fund line items and from Board Local Fund Items
             to General Revenue Fuud items?
                         Section 7 of Article    II, House Bill 426
             (p. 1293) gave to the Board authority to make trans-
             fers between line item appropriations       of institutions,
             between line item appropriations       of the Central Office,
             and between institutions.      Att’y Gen. Op. v-1305 U95l.j.
             The authority    to transfer between line items of the
             appropriation    to the Home was one of the powers trans-
             ferred to the Department since the exercise        of this au-
             thority  has no effect    upon other institutions.       How-
             ever, the other two types of transfers       must still    be
             made by the Board.
                       There .ls no restriction upon the manner of
             transfer between the line item appropriations  to the
             Waco Home. Section 10(d) of Article   II, House Bill
             426 (p. 1295) provides:
                           “(d)   All items herein appropriated    to
                    the several Institutions     Including the Cen-
                    tral Office,     for bond premiums, post office
                    box rent, land rental,     postage, telephone,
                    telegraph,    heat, water, light,   power, travel
                    expenses     maintenance of structures    and
                    eqcipmen 8 , shall be paid from the Board Local
                    Fund. It is further provided that the items
                    herein enumerated shall not be supplemented
                    from any other funds appropriated      in this
                    Article,    except as provided in Section 7(a)
                    and (b) and Section 9, as provided In this
                    Article .v
                         The exception provided is that no funds appro-
              priated for these items shall be supplem ted from any
              other funds appropriated  In this Article F except through
              Sections 7(a) and (b) and Section 9, relating   to the

                2/    up.,   Artlcle~ II,   dealing   with eleemosYnarY instl-
              tutions.
/   :.__.I
       ‘i
I




Hon. John H. Winters,         page 6 O-1413)


transfer  and Special Reserve Account provisions.
Therefore   there Is no limit upon the ametmt     of
funds thag may be placed In any line Item account,
either from general or local funds    so long as
the funds are placed in the accoun  i by  a transfer
between line Items or by reeelpt   of additional
monry from the Special Reserve Account.
               4.~ May the Department create new Item
classlflcatlons     and transfu appropriations   into
such new elasslficatlons?
              The authority
                          to make transfers Is only
ror the purpose of transferrIng     between L-ine Items.
There Is no authority to ereato new Item classlfl-
cations*   If the item desired    does not fall wlthln
one of the present classlflcatlons,      it cannot be
purchased.
          5. When there has been a transfer of
General Revenue or Board Local funds from one line
item fund to a line item fund of opposite origin,
what fund should be charged when the transferred
money Is expended?
               When a transfer is made, there should be
    a bookkeeping transactioh   removing the amount from
    the line item fund from which It is transferred    and
    placing it to the credit of the line item fund to
    which it 1s being transferred.     When the noney is
    expended, it must then be charged to the ltie item
    account which gives the authoriiation    to spend the
    money for the article   In question.  ~xhe fact that
    the funds originally   cam6 from General Revenue or
    Board Local Funds Is of no s$gnificance    after the
    transfer  Is made.



               H.B. 5%) Acts 52nd Leg., B.S. 195l,
         ch. 485, p. 880 (Art. 3255b, V.C.S.),
         transferred  to the State Department of
         public Welfare all rights j .powers, duties,
         and appropriations  held by the Board for
         State Hospitals and Speclal’Schools   on be-
         half of the Waco State,Home OR Oetobor 1,
         1951.
Hon. John H. Winters,     page 7   (V-1413)


           The right to receive $36,500 from the
     Board Local Fund for the 1952-53 fiscal
     year (H.B. 426 Acts 52nd Leg., R.S. 195l,
     ch. 499 p. 1238 at p. 1273) was trans-
     ferred c o the Welfare Department.
             The right to participate  in the $600,-
     000 Special Reserve Account (H.B. 426, p.
     1294) was transferred     to the Welfare Depart-
     ment, but the Board retains the power of
     deciding who shall participate      and to what
     extent,    since this is a power 4 o be exer-
     cised on behalf of all eleemosynary lnstltu-
     t Ions.
            The Welfare Department has authority       to
     make transfers    between line Item approprla-
     tions to the Waco Home (H.B. 426, p. 1272)
     but has no authority to create new Item
     classlficatlons.     When money is expended it
     must be charged to the line item appropria-
     tion that authorizes     the expenditure,    and
     the fact that the money originally        came from
     General Revenue or the Board Local Fund Is
     of no significance    after the transfer Is
     made.
APPROVED:                           Yours very truly
C. K. Richards                        PRICE DANIEL
Trial & Appellate     Division      Attorne~y General

E. Jacobson
Reviewing Assistant
                                    By(r‘wrti
Charles D. Mathews                    E. Wa       Thode
First Assistant                              Assistant

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