Honorable Robert S. Calvert
Comptroller of Public Accounts
Capitol Station
Austin, Texas
                                 Opinion No. WW-300
                                 Re:   Whether certain approprla-
                                       tions to the Board for
                                       Texas State Hospitals and
                                       Special Schools for the
                                       payment of refunds are
                                       supported by pre-existing
Dear Mr. Calvert:                      law.
          You have requested whether the appropriations
contained in Item 1 under the heading of pay patient refunds
and Section 3 of the riders to the appropriations to the
Board for Texas State Hospitals and Special Schools are
supported by pre-existing law.
          Item 1 under the heading of pay patient refunds to
the appropriation to the Board for Texas State Hospitals and
Special Schools contained in Article II of House Bill 133,
Acts of the 55th Legislature, 1957, provides:
                                  “For the Years Ending
                                 August 31,   August 31,
                                    1958         1959
        "Out of General Revenue
          Fund:
     "1. There is hereby appro-
          priated out of the
          General Revenue Fund to
          the Doard for Texas
          State Hospitals and
          Special Schools for the
          Payment of pay patient
          refunds, which are
          approved by the busi-
          ness managers of the
          respect-tveinstitutions
          under the Hospital
          Roard, the sum of      $10,000       $10,000
Honorable Robert S. Calvert, Page 2 (WW-300)


          "All receipts to institutions under the Board
     for Texas State Hospitals and Special Schools for
     pay patient collections shall be deposited to the
     credit of the General Revenue Fund. Disbursements
     of refunds shall be made by the Central Office
     only after receiving approval of the Butiness
     Manager of the respective institutions.
          Article 3196a, Vernon's Civil Statutes, provides for
the admission and care of mentally ill persons and authorizes
the Board to charge relatives and guardians of the estate of
mentally Ill patients for the care and treatment of such
patients. Attorney General's Opinion WW-253 (1957). There is
no provision, however, in Article 3196a or any other article
applicable to the Board for Texas State Hospitals and Special
Schools which provides for the payment of refunds of money col-
lected for the care and treatment of patients at the institu-
tions under the control of the Hospital Board.
            Section 4liof Article III of the Constitution of Texas
provides:
          "The Legislature shall provide by law for the
     compensation of all officers, servants, agents and
     public contractors, not provided for in this Con-
     stitution, but shall not grant extra compensation
     to any officer, agent, servant, or public contrac-
     tors, after such public service shall have been
     performed or contract entered into, for the perform-
     &nce of the same; nor grant, by appropriation or
     otherwise, any amount of money out of the Treasure
     of the State, to any individual, on a claim, real
     or pretended, when the same shall not have been pro-
     vided for by pre-existing law; nor employ any one in
     the name of the State, unless authorized by pre-
     existing law." (Emphasis added)
          This provision has been construed by the courts of
this State to mean that the Legislature cannot appropriate State
money to any individual "unless at the very time appropriation
is made there is already in force some valid law constituting
the claim the appropriation is made to pay 2 legal and valid
obligation of the State." Austin National Bank~~v.Sheppard, 123
Tex. 272, 71 S.W.2d 242 (1934). See also Fort Worth Cavalry
Club v. Sheppard, 125 Tex. 339, 83 S.W.2d 660 (1935); State v.
Stcck Company, 236 S.W.2d 866, Tex. Civ. App. (1951, error ref.);
Attorney General's Opinion WW-96 (1957); Attorney General's Opin-
ion WW-150 (1957). By a legal obligation referred to above, is
meant such an-obligation aswould form the basis of a judgment
.


    Honorable Robert S. Calvert, page 3.   (ww-300)

    against the State in a court of competent jurisdiction in the
    event it should permit itself to be sued. Austin National Hank
    v. Sheppard, supra.
               In Corsicana Cotton Mills v. Sheppard, 123 Tex. 352,
    71 S.W.2d 247, it was held that where a corporation volun-
    teers the payment of taxes, a legislative approprlatlon to re-
    fiiKdXuci-F~Zy%En~
          -.-_        _o   axe-sviolated the provisions of Section
    ~o~:,Art~,c~e-_I‘Ifin,-_that
                              ~the corpo.ratlon-liKd~dIaim
    against the Eale for ~K.-~~-.-g-.~-.~~~"a~~'..~~~"~~-~~",‘t~~.~~p~io"pria
                                                                     _
                                    tITF.~a.
                                          ..-
                                            ,,..
                                              ~.~..
                                               ~.     .._..._.
                                                         ~,-",
    tion was ma6~,-~~~,~~~~~~~~~~~~~~~,
                                     _,,,~,_,"
                                        pproprIatI8n was .se~a~e~.
                                                          noXXi$p 1'-
    ported by pre-existing,law. However, L‘ ~~.~.Eexd.-T-
    Akin Product Company, 155 Tex. 286 S.W.2d 110, that taxes
    paid under duress of an unconstitutional act may be refunded.
              In view of the foregoing, it is our opinion that the
    above quoted appropriation appropriates money for refund of
    moneys paid both voluntarily and under duress. Insofar as the
    appropriation appropriates money for the payment of refunds that
    do not constitute a legal obligation as that term is defined in
    Austin National Hank v. Sheppard, supra, such appropriation is
    not supported by pre-existing law. Insofar as the above quoted
    appropriation appropriates money for refund of moneys paid un-
    der duress, the appropriation is supported by pre-existing law.
    You are, therefore, advised that the payment from this appro-
    priation for pay patient refunds will depend on the facts in
    each case in which the claim for refund is presented.
              Section 3 of the riders to the appropriation to the
    Hoard for Texas State Hospitals and Special Schools in House
    Bill 133 provides:
             "Sec. 3. Services to employees and guests. In
        order to reimburse equitably the appropriation items
        in this Article from which expenditures are made fork
        services to employees and guests, the following reim-
        bursement rates and rules shall apply:
              "Services furnished by the institutions to
         employees shall be valued at not less than the
         following:
              ::30 per month for meals for adults
               i15 per month for meals for children, ages
                   2 through 15
              1: 5 per month for laundry
               i15 per month for lodging, excluding
                   medical personnel of hospital system
              "$15 per month per room for the first room
                   for lodging of medical personnel of
Honorable Robert S. Calvert, page 4.   mi-300)


              hospital system and $10 per month per
              room for each additional room
          "Collection for services rendered employees
     and guests shall be made by E deduction from the
     recipient’s salary or by cash payment in advance.
     Such deductions and other receipts for these ser-
     vices from employees and guests are hereby reappro-
     priated to the 'Other Operating Expenses' of the
     institution. Refunds for excess collections shall
     be made from the appropriation to which the collec-
     tion was deposited.
          "Employees residing away from the grounds of
     the institutions in which they are employed shall
     pay cash for only such meals at the institutions
     as they may actually take, and there shall be no
     deductions from the regular salary payment due
     employees of the respective institutions for
     institutional services or emoluments not actually
     received by said employees."
          In Attorney General's Opinion ~11-265 (1957), it was
held:
         "In Opinion m-96 this office held that the
    General Appropriation Bill may direct appropriation
    of money and may detail, limit or restrict the use
    of funds so appropriated where such provisions are
    necessarily connected with and incidental to the
    appropriation and use of the funds.
    Daughters of the Republic of Texas,
    156 S.W. 197 (1913).
         "Such provisions concerning'accounting proce-
    dures and directions as to the method of expenditure
    and reimbursement of certain funds are permissible
    and proper so long as they do not conflict with the
    general law on the subject. Attorney General's
    Opinion V-1254. However, general legislation
    constitutes a separate subject and cannot be inclu-
    ded within a General Appropriation Bill, and a
    rider to a general appropriation bill cannot
    repeal, modify or emend an existing general law.
    Moore v. Sheppard, 144 Tex. 537, 192 S.W.2d 559
                                 Tex. 451, 49 S.W.
57 Tex. 203 (1882);
    Attorney Genvio.               V-1254."
          Applying the principles of law announced in Attorney
General's Opinion ~~-265, it is noted that Section 3 of Article
Honorable Robert S. Calvert, Page 5 (WW-300)


TI not only provides for the emoluments of employees of the
several Institutions under the jurisdiction and control of the
Hospital Board, but also attempts to authorize expenditures
for services to guests. Such provisions do not concern the
direct appropriation of money nor concern accounting proce-
dures and directions as to method of expenditure, but
authorize the expansion of services which are not now
authorized by general law. To this extent its provlslons
constitute a proper subject for general legislation in
violation of Section 35 of Article III of the Constitution of
Texas. Attorney General's Opinion W-96.
          Therefore, you are advised that Section 3 of
Article II, House Bill 133, Acts of the 55th Legislature,
1957, Chapter 385, is supported by pre-existing law insofar
as Its provisions are applicable to employees of institutions
under the jurisdiction and control of the Hospital Board.
You are further advised that its provisions are not supported
by pre-existing law Insofar as it applies to "guests", and
further, such provisions violate the provisions of Section 35
of Article III of the Constitution of Texas.


                            SUMMARY

                Moneys appropriated for pay
                patient refunds are supported
                by pre-existing law insofar
                as it authorizes the payment
                of refund of moneys collected
                under duress. Section 3 of
                Article II of House Bill 133,
                Acts of the 55th Legislature,
                is supported by pre-existing
                law insofar as it provides
                for the emoluments of employ-
                ees of the institutions under
Honorable Robert S. Calvert, Page 6 (W'W-300)


                   the jurisdiction and control of the
                   Board for Texas State Hospitals and
                   Special Schools.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas




                                     Assistant
JR:jl
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
J. Mark McLaughlin
Leonard Passmore
C. K. Richards
Marietta Payne
REVIEWED FOR THE ATTORNEY GENERAL
BY:
        James N. Ludlum