.

                                                                  R-643, ,
                                                                     ’   423
                                       QFPPB:E 0P
                         THE Amom~~                  GENDERS
                                     AUSTYX~    TEXAS
PRICE      DANIEL
,..TTTO”NEY GEHERN.




            Hon. D. W. Stakes
            Cnqeral Man.3ger
            Te:-asPrison System             Re: Validity of emergency
            Funtsvllle, Texas                   appropriation when con-
                                                strued as authorizing
                                                payment of clalms~whlch
                                                arose while the Legls-
                                                lature was In session
                                                and prior to the ef-
                                                fectlve date of ~theAct.
            Dear Xr. Stakes:
                          Your letter of July 3, 1947,   readsr
                           Qarly during the year,1947 It de-
                      veloped that certain appropriations, made
                      by the 49th.Leglslature for the support
                      and maintenance of the Texas Prison System,
                      would be exhausted before the end of the
                      fiscal year ending August 31, 1947.   Since
                      the 50th Legislature was In sessionat that
                      time, a request was made for an emergency
                      approprlatQin on whtch to operate for the
                      balance of the year. For reasons u&n&m
                      to us ‘~ltwas not uatll May 12th, 1947,
                      that ihe emergency appropriation was’passed,
                      an3 signed by the Governor.. In the mean-
                      time’it was necessary to continue to place
                      orders’for certain items, such as food Sor
                      Inmates, ‘feed for livestock, 011, gasoline,
                      gas and electric services. In some cases
                      the mods’were delivered before the emergency
                      appropriation was made available and .ln
                      others not until afterward. There were bal-
                      ances In the funds at the ?lme the orders
                      were placed, but ln,.someaccounts the
                      previously exlstlngiorders would have over-
                      drawn them.
                           “When we requested ths emergency appro-
                      priation there were no act:ialoverdrafts
                Stakes, page 2 (v-.376)
     Don. D. 'rl,


          but the proper Legislative Committees
          were told it was a real emergency, and I
          believe their intention was thet that ap-
          proprlatlonwas to.ecover the entlre.need,
          that in fact the 5uth Legislature was
          simply supplementing the previous appro-
          priations of the 4,9th,
               "In order to clarify our situation with
          the State Comptroller of Public Accounts,
          I shall greatly appreciate your opinion
          as to whether all of the purchases men-
          tioned can be paid from the emergency ap-
          propriation (in all accounts After the
          orlglnal appropriations have been exhaust-
          ed.)"
               The emergency appropriation mentioned ln your
     letter 1s Senate Bill 396, Chapter 191, Acts 50th Legls-
     lature 1947q page 333 Vernon's Texas Session Law Ser-
.'   vice. It reads as follows:
                                                  ..


          "An.~ActmakSng an emergency appro-
          priation for the Texas Prison System;
          ana declaring an emergency.
          vBe it enacted by. the Legislature of the
          State of Texas: .
               "Section I. There is hereby approprl-
          atedto.the Texas Prison System.out of the
          General Revenue Fund lnthe State Treasury
          not otherwise appropriated, the sum of
          Three Hundred Forty-nine Thousand Five
          Hunarea($349,500.00) Dollars, or so much
          thereof as may be necessary to supplement
          the appropriation made forothe said Texas
          Prison System by the 49th ~Leglslature;said
          appropriation to be for the remainder of
          the present fiscal year ending August 31,
          1947, and to be In all things subject to
          the general provisions and riders attached
          to the General De artmental Appropriation
          Bill, Acts 19459 fi
                            9th Legislature, Chapter
          378; the purposes for which this approprl-
          atlon Is made and tne appropriation Items
          supplemented by this appropriation being
          as follows, to-wit:
 Hon. D. W.     Stakes, page 3        O-376)


        "APPROPRIATION                              BUDGET
         NUMBER                                  REQUIREMENT
        68.     Groceries, mediral sup-
                plies, feed and seed
                    Total J-909 ........$ 190,000.00
        70.     Maintenance and repairs
                of  equipment (including
                gas, 011, tires, etc.)
                and repairs to bulld-
                ings
                    Total J-9l.l .....*0.  12,ooo.oo
        7i.     General support and maln-
                tenance, including office
                supplies and expenses,
                rents, heat, light,wter,
                power, Ice, postage,
                telephone, telegraph,
                freight, express, dray-
                age, per diem of Board
                Members, travel
                expense, transporta-
                tion of prisoners,
                rewards, Inquests,
                ~lnsurance,bond premiums,
                cleaning and janitor
                 supplies, mlscellane-
                our expense
                    Total J-912 ...:....   50,wo.00
      .. ~72.   Bew equipment (J-913) , 10,OGG.GO
      i ‘jpab.rr.
                Industrial revolving
,..
 i              fund,(9/1/46) cellblock
                construction
                   Tgtal .............             87,500.OO

                GRAI4DTOTAL . . . :.. . . . .$    349,500.oo   ,I

>~?,.~.      YSectlon 2.. The supplemental approprl-  :':
                                                        '~
 .._    a&&he~eln    made shall be e'xpended In all
     ~. ~&lngs 1Kaccordance with the provisions of
   ,.,                                                    .,
:       the'~appr$prlatlonblli and In accordance'with- :;.
        5&e orl&hal approprl4tlon made for the sev-~.
        efatl:
             1tWW supplementad by this approprla-
        B&i&
             "Section 3.  The fact that the Texas
.~      Pr,lsonSystem has practically exhausted the.
Hon. D, W. Stakes, page 4   (v-376)


    appropriations made for the purposes pro-
    vided in this Act. and the necessity for an
    immediate appropriation to supplement the
    same, create an emergency and an impera-
    tive public necessity that the Constitution-
    al Rule requiring bills to be read on three
    several days in each House of the Legislature
    be suspended, and same Is hereby suspended,
    and that this Act shall take effect and be
    In force fromand after Its passage, and
    it is so enacted.
         "Passed the Senate, 4pril 29, 1947:
    Yeas 27, Nays 0; passed the Rouse May 1.
    1947: Yeas 117, Nays 8.
    Approved May 12, 1947
    Effective May 12, 1947.-
          You inquire only about claims in excess of
appropriations which were incurred "early during the
year 1947" and prior to May 12, 1947, when the sup-~
plemental appropriation became effective.: Since no
applicationwas made to the Governor for approval of. :
deficiency warrants pursuant to Article 435l V. C. S.,~,
and,~sinceyou~apparently do not intend to submit
claims which were incurved prlor,to January 14 1947,
the date onwhich the 50th Legislature convened,to          :
the Comptroller for payment out of the supplemental
appropriation bill we will not pass on thenvalidity
of such claims at .his
                  t    time. The sole question here,
is whether'claims for items "such as foods for in-
mates,.feed for livestock, oil, gasoline, gas and
,electrlcservices ",which were incurred between Jan-
uary 14, 19479 when the Legislature met, and May 12,
1947, the effective date of the supplemental appro-
priation, can be legally paid out of such approprla-
tion. We answer this inquiry in theaffirmative.
Our ruling,and the reasons.-thereforfollow:
        ~. There are two controlling law questions
involved. The one has.to do with aninterpreta-
tion of the supplemental appropriation bill Itself
to determine whether the Legislature intended for it
to cover expenses incurred prior to its effective date.
          The other question is whether the Legis-
lature could by emergency appropriation passed dur-
ing the biennium lawfully authorize an expenditure
for Items "sudh as foods for inmates, feed for llve-
stock, oil, gasoline, gas and electric services",
Hon. D. Wi Stakes, page 5      (v-376)


which were ,usedwhile the Legislature was in
session and before the emergency appropriation
became effective.
          We will first discuss the supplemental
appropriation bill, quoted above. It recites in
Section 1 that the amount appropriated is "to sup-
plement the appropriation made for the said Texas
Prison System by the 49th Legislature, said appro-
priation to be forShe remainder of the present
fiscal year ending August 31, 1947, and to be in
all things subject to the general provisions and
riders attached to the General Departmental Appro-
priation Bill, Acts 1945, 49th Legislature Chap-
ter 378."  Reference to the original bill (p, 907,
General & Special Laws, 49th Legislature, 1945)
shows that It contains the same five Items under
appropriation numbers 68, 70, 71, 72 and rider, which
are included in the supplemental appropriation. The
emergency clause on the Supplemental Appropriation
A& recites "the fact that the Texas Prison System
has practically exhausted the appropriations made for
.the,purposesprovided In this Actoat'It is perfectly
obvious ,that the Legislature intended for the Supple-
mental Bill to be an addition to the original appro-
priation, without any hiatus,intervening. In
Commonweaith vs, Liveright (Pa.) 161 P. 697,~ the court
said:
          II
               .   An appropriation does not
                   .   0   0

     speak from'the date of approval of the
     measures, but from a consideration of that
     appropriation and other appropriat.lonsdur-
     ing the same biennium."
See, also, Graham vso Childers (Gkla.) 241 Pact.178.
          Article 4351 V, Ci S. provides for obtain-
ing deficiency warrants from the Governor "until the
meeting of'the next Legislature." On March 26 1947,
the Legislature had appropriated~$138,241.47 #to pay
the deficiencyappro riations granted by the Governor,
~pursuantto Article t351 of the Revised Civil Statutes
of the State of Texas, 1925, prior to January 1 1947":
g;B. 228, ch. 57, Acts 50th Legislature, R.S. 1447,~.
  . There were no claims for the Prison System lnclud-
ad In this deficiency appropriation. Considering the
supplemental appropriation for the Prison System, above
quoted, and the deficiency appropriation bill together,
Hon * D, W, Stakes, p.ige6   (v-376)


we find nothing to indicate that the Legislature knew,
of any deficiency claims incurred by the Prison System
prior to January 1, 19*t7?or that it intended for any
of the money appropriated in either of said bills to
be used for that purpol;e, We, therefore, interpret
the supplemental appropriation bill as covering the
period from January 14th , 1947, when the Legislature
convened, to Au:_ustjist, 1947, the end of the blen-
nium,
          We next consider the power of the Legisla-
ture to enact an emergency appropriation having a
retroactive effect, It is well settled ~that"the
State Legislature may exercise all the legislative
powers of the peopleY :;ubjectonly to the limitations
expressed In the Constitution of the State and of the
United States," .CharlesScribner's Sons vs+ Marrs,
Tex, Sup. Ct., 262 s,w..722; Conley vs. Daughters of
the Republic, Sup. Ct..,156 S.W,,197.
             We have concluded that Section 49 of Article
  III, Texas Constitution, is not applicable here,. The
  moneys spent by the Prison System in excess of the sums
  appropriated In the regular departmental,appropriatlon
  blllze not "debts" within the meaning of this,section
  of the Constitution. This section refers to "casual
  deficiencies of,revenue" and not to casual deficiencies
  ln:approprlations, Terre11 vs. Middleton, 187 S.W.
.-367,, error refused; Attorney General's Opinion dated
  February 21, 1923 to Hon. J. E. .Quaid and signed by
  L. C. Sutton Assistant Attorney General,being No.
  2482, Book 58, p. 203 of the Attorney General's
  Opinons for 1922 - 1924. See, also, concurring opln-
  ion of Justice Hawkins In Terre11 vs. Middleton,
 .Tex,  sup. 191 S.W. 1138, at 1148, et seq-
          We have concluded that Section 44, Article
III, Texas Constitution, is not applicable here.
TNs sectl.onprohibits the Legislature from appro-
priating "any amount of money out of the Treasury
of the State, $0 anv individual, on a claim,~real or
pretended, when the same shall not have been provld-
ed for by,pre-existing law." The Supplemental Appro-
priation quoted above 1s not made to "any individual"
within the meaning of this section of the Constitution.
Austin National Bank vs. Sheppard, Tex. Sup. 71 S.W.
(2d) 242, 245, The supplemental appropriation Is
made "to the Texas Prison System" which is a State in-
stitution and not to an "lndlvldual*', This distinguish-
Hon. D. WI Stakes, page 7    (v-376)


es this case from the case of Fort Worth Cavalry
Club vs. Sheppard, Tex. Sup., 83 S.W. (2d) 660,
where the appropriation was made to an individual.
          If,it Is contended that Section 44, of
Article III, is applicable to the supplemental ap-
propriation bill, the answer is that this appropriation
is "provided for" by the mme "pre-existing law" which
supported the regular Departmental Appropriation Bill.
That "law" consists of'Section 58, Article XVI, Texas
Constitutionad   Articles 634 and 6166g, V. C. S.~
            Section 16 of Article I? Texas Constitution,
provides:
          "No bill of attainder,= post facto
     law, retroactive law, or any law impalr-
    -1ng the obligation of contracts, shall be
    .made*"
           This provision prohibiting the enact-
~ment of a."retroactive,law" was intended to protect
vested rights .of third parties. 9 Tex. Jur. 536;
 537. Where there are no rights of third parties ln-
valved,,the Legislature has the same power to enact'
retroactive laws as it has to enact prospective laws.
.Dallas County vs. Lively, 106 Tex. 364 167 S.W.
219; Blomstrom vs. Wells, Clv. App., 339 S.W. 227,
writ of~error dismissed; Anderson,County Road Dls-
 tri,ctNo. 8 vs. Pollard, Tex, Sup,, 296 S;W. 1062. We ;
have~concluded ,that Section 16, of Article I, of the
Texas Constitution 1s~not applicable to an emergency
appropriation such as we have here.
          The Constitution authorizes the Legislature
to make emergency appropriations out of current re-
venue to take care ~of the current expenses of the
biennium.
          ~Sectlon 5, of Article III, Texas Constitu-
tion, provides In part as follows:
          "The Legislature shall meet every two
     years at such time as may be provided by
     law and at other times when convened by the
     Governor d When convened in regular session,
     the first thirty days thereof shallte devot-
     ed,to the introduction of bills and resolu-
     tions, acting upon emersency annrouria-
1




    Ron, D. W. Stakes, page 8   (V-376)


         tlons, U O O O " (Emphasis added)

              Section 49a of Article III, of the Texas
    Constitution, provides as follows:
              "It shall be the duty~of the Comp-
         troller of Public Accounts In advance of
         each Regular Session of the Legislature
         to prepare and submit to the Govenor and
         to the Legislature upon its convening a
         statement under oath.showing fully the
         financial condition of the State Treas-
         urv at the close of the last fiscal DeriOd
         and an estimate of the DrObabh? receiuts
         and disbursements for the then current
         fiscal year.J' (Emphasis added).
              Section 6, of Article VIII, .Texas Consti-
    tution provides, In part:
              ,I. 0 . . nor shallmy approprlatlon
         of money be made for a longer term than
         two years, except by the first~Legislature
         to.assembleunder this Constitution, which
         may make the necessary appropriationsto
         carry on the government until the assemblage
         of the sixteenth Legislature,"
              Article 12, V. C. S. provides:
              "The fiscal year of the State shall
         terminate on the thirty-first day of
         August of each year, and appropriations of
         the State government shall conform thereto."
              After 4ugust 31st of the last year ~of'ablen-
    nium the Legislature would have no authority to make      '.
    emergency deficiency or supplemental‘appropriatlons
    for the fiscal year just ended. If It undertook to .do
    so by an appropriation bill, the appropriation bill
    would be invalid in so far as it conflicted with
    Article 12,-V. C. S. Moore vs. Sheppard, Tex. Sup.
    192 E&W. (2d) 559.  At the Session following the close
    of a biennium the Legisla'ure can only act on claims
    of individuals which are provided for by pre-existing
    law,   During a biennium, however, the Legislature has
    full authority to appropriate within the current re-
    venues all of the money which it finds is necessary
 Hon. D. W. Stakss, page 3    V-376)


  and required for the efficient maintenance and op-
  eration of the several State institutions during
  that biennium.
            Subdivision 14(b) of the General Provi-
  sions of the Departmental Appropriation Bill pass-
  ed by the~49th Legislature, 1945, page 945, reads:
            nThe approprjations herein provided are
       to be construed as the maximum sums to be ap-
       propriated to and for the several pruposes
       named herein, and the amounts are intended
       to cover, and shall cover the entire cost
       cf the respective items and the same shall
       not be supplemented from any other sources;
       provided, however, that the provisions and
       restrictions.herein shall not apply to the
       State Commission for the Blind; and, extent
       as otherwise provided, no other expendi-
       tures shall be made, nor shall any other.
       obligations be incurred by any department
       of~this State, provided, however, that
       nothing herein shall prevent any depart-
       ment head from paying less than the.maxi-
       mum amount set forth herein for any
       salaried positions." (Emphasis added).
              The language "except as otherwise provided"
   as used in subdivision 14(b),,supra, includes the me-
   thod .of supplementing an appropriation as. provided by
   Articles~4351 and 43!jla,V. C. S., as wellas by the
   supplemental appropriationat. These two methods,
   however, a.re the only means of supplementing a
'. General Appropriation Bill.
            The goods and services used by the Prison
  System during the time that the Legislature was.in
  sesslonznd before the effective date of the Supple-
  mental Appropriation Bill which were not paid for out
  of the general appropriat1on, were in effect advanced
  to the Prison System. The Prison Board and the Board
  of Control on behalf of the Prison Board, had no
  authority under subdivision 14(b) of the Departmental
  Appropriation Bill, above quoted, to bind the States
  for the payment of moneys in excess of the sums.appro-
  prlated. Those who furnished goods and services to
  the Prison System during this interval did so at
  their own risk. It is our considered opinion, how-
  ever, that the Legislature had the power during the
.



    Hbn. D. Wb Stakes, p3y.e16   (v-376)


    biennium to provide money to pay for goods and ser-
    vices furnished the Prison System during that per-
    iod, whether they were furnished before orafter the
    effective date of the supplemental act.
               The holding in this ~opinion does,not mean
    that the Legislature, by an emergency appropriation,
    may grant "extra compensation" "after service has been
    rendered or a contract has been entered into, and per-
    formed In whole or in part," Sections 44 and 53,
    Article III, Texas Constitution. Nichols vs. State
    (Cl-?.App.) 32 S.W. 452; State vs. Holdeman, 163
S.W. 1020; Attorney General's Gpinion No. o-1750.
               It does.mean, however, that within the
     biennium the Legislature may supplement an approprl-
     ation in the same manner and with the same authority
     as It could have passed the regular appropriation at
     the beginning of the biennium, provided that the
     moneys are not to.be used for the purpose of paying
     "extra compensation" "after service has been render-
    led or a contract entered into, and performed in
    whole or in part,! within the meaning of Sections
    .44 and 53. Article 111,~Texas Constitution; Dallas
    County vs- Lively, 1.06 Tex. 364 167 S.W. 219;
     Graham vs. Childers (Okla) 241 sac. 178, 182. In the
     last cited case the plaintiff soughtin injunction
     against the State Treasurer to restrain him from pay-
     ing out of a supplemental appropriation for text
     books which were,received.by the State but not paid
     for out of the regular appropriation, Inholding
     that the supplemental appropriation was valid.and in
     denying the injunction the court said:
              "The mere fact that the Legislature
         perhaps from lack  of proper statistical In-
         formation, failed to make an appropriation
         sufficient ~to carry out this purpose would
         in no wise preclude it from doing so itrnit
         can be done within the constitutionai       -
         tations at a subseouent session held durlnq
         the b-1      term. The money appropriated
         was intended to be spent in supplementing
         or&ding to the former appropriation what
         the facts demonstrated was necessary to
         frropirlYcarry out +ifiepurposes ofthe orl-
         glnal act. e e .
Hon. D. W. Stakes, page 11   (V-376)



            "Plaintiff acain says theazt of the
     state superintendent was in fact an attempt-
     ed purchase of books in excess of the appro-
     priation, and the method called a loan was
     a subterfuge. Suppose this be conceded.
     We are notto condemn or condone, except
     in so far as the law drives us. It was,
     certainly the intent of the original bill
     that the necessary books be supplied. They
     were supplied, and even should It be conceded
     In doing so the zeal of the officers led
     them beyond the pale of the then legal ap-
     propriation, there was no binding obliga-
     tion on the 'sovereignLegislature to fol-
     low such officers and make it good. But,
     if, on the other hand, the Legislature
     saw fit t0,d.oso, and authorized the pay-
    ..ment,and its act did not step beyond the
     constitutional limits, the courts cannot
     strike down its deliberate enactment.
     Federation v. Salt Lake County, 22 Utah,
     6 61 P. 222< New Orleans vi Clark, 95 U.S.
6b.   24 L. Ed. 521: Cuilford v. Cornell.
     18 Barb. (N.Y.)-615; Lycoming v. Union,'
     15 Pa. 166, 53 Am. Dec. 575;   People v.
     Burr, 13 Cal. 343; Black Con. Law.,135;
     EOOJO;; c,“.  Law, 466. See, also, Cayuga
                . State, 112 Misc. Rep. 517,
     182 N. Y. S. 646:   Osweeo & Svracuse R. R.
     Co,~vi State, 226 N. YT~351,-124 N. E. 8;
     Ulster v. State,. 177 N.'Y. 189, 69 N.E.
370.“.

          This is merely another way of saying that
"what the Legislature could havealthorlzed in the
first Instance it can ratify, If at the time of'
ratification It has the in$tlal authority to
euthorize.ta Anderson County Road Dls~trlctNo. 8 vs.
Pollard,.Tex. Sup., 296 S.W. 1062, 1065.

           We cannot, of course, give blanket appro-
'val to all of the claims that may be presented for
 payment out of each of the five items listed in the
 Supplemental Appropriation Bill, quoted above. It
 will be necessary for the Comptroller to examine each
 claim individually in the light of this opinion to
 determine whether or not it can be paid. NO ~dis-
 tin&ion is to be made between claims that arose be-
 fore and after May 12th, so long as they arose after
.   .



        Hon. D. W. Stakes, page 12   (V-376)


        the Legislature convened on January 14, 1947, and be-
        fore Auyst 31, 1947, the end of the biennium.      .
                  The answer to the second UeStiOn in
        Attorney General's Opinion No. G-4815 is hereby
        overruled.


                  The five items of appropriation
             listed in the Supplemental Appropriation
             Bill for the Texas Prison System which
             was passed by the 50th Legislature and be-
             came effective on May 12, 1947, may be used
             to pay defi.clenciesin the same items in
             the regular biennial appropriation bill
             for the Prison System, where such ex-
             penses were incurred -Ifterthe Legisla-
             ture convened and prior to the end of
             the biennium. Ch. 191 S.B. 396, Acts
             50th Legislature (194h p. 333.
                                     Yours very truly,
                                 ATTGRNEY GENEFlALOF TEXAS




             FD:mw




                                 ATTORNEY GENERAL