January 24, 1972
Honorable Robert S. Calvert Opinion No. M- 1044
Comptroller of Public Accounts
State Finance Building Re: Authority of the Comptroller
Austin, Texas 78711 to disburse a lump sum ap-
propriation to the Elm Creek
Dear Mr. Calvert: Water Control District.
Your request for an opinion on the above subject matter
asks whether you have authority to issue a warrant in a lump sum
of $5,000.00 to the Elm Creek Water Control District pursuant to at
item of appropriation in the current General Appropriation Act.*
This item of appropriation appears on page 128 of Article III of the
Act and reads as follows:
"There is hereby appropriated $5,000 out
of the General Revenue Fund for the biennium
beginning September 1, 1971, for all necessary
operating expenses in conjunction with the
operation of the Elm Creek Water Control Dis-
trict."
The Governor's veto message dated June 20, 1971, reads, in
its relevant part, as follows:
"Therefore, by authority granted in me by
Article IV, Section 14, of~the Texas Constitu-
tion, I hereby veto each and all of the items
appropriated for the fiscal year ending August
31, 1973 from Senate Bill No. 11, Sixty-Second
Legislature, Regular Session." (Emphasis added.)
l S.B. 11, Acts 62nd Leg., R.S. 1971, as amended by S.B. 7, 1st
C.S., same Leg., 1971.
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Hon. Robert S. Calvert, page 2 (M-1044)
The item of appropriation to the Elm Creek Water Control
District is a lump sum appropriation for not only the fiscal year
beginning September 1, 1971, but also for the fiscal year ending
August 31, 1973.
We view the issue presented by your request as follows:
Did the Governor, by his veto message, intend to veto the entire
$5,000 item of appropriation for the Elm Creek Water Control Dis-
trict, or only that portion of the item appropriated for the fiscal
year ending August 31, 19731
The applicable rule of construction is that "In construing
the purport of a veto message the same rules of construction that
govern in construing legislative acts should be applied." Fulmore
v. Lane, 104 Tex. 499, 509, 140 S.W. 405, 411 (1911). In accordance
wfthis rule, we are of the opinion that, as stated in his veto
message, the Governor intended to veto only that portion of the ap-
propriation for the District for the fiscal year ending August 31,
1973.
Having arrived at the foregoing premise concerning the in-
tent of the Governor, we now consider whether his veto of a portion
of a lump sum, two-year appropriation is valid. Clearly, his veto
would be valid if the appropriation to the District bad been made
in terms of two separate fiscal year items. Fulmore v. Lane, m.
This not being the case, however, it is settled that the
zt:z has no constitutional authority to veto only a portion of
. Either the entire item must be vetoed, or the entire item
will stand as it was enacted by the Legislature. As the Supreme
Court of Texas long ago stated:
"The executive veto power is to be found
alone in section 14, article 4, of the Constitution
of this State. By that section he is authorized to
disapprove any bill in whole, or if a bill contains
several items of appropriation, he is authorized to
object to one or more of such items. Nowhere in the
Constitution is the authority given the Governor to
approve In part and disapprove in part a bill.,,,The
only additional authority to disapproving,a bill in
whole is that given to object to an item or items
where a bill contains several items of appropriation.
It follows conclusively that where the veto power is
attempted to .be exercised to object to a paragraph
or portion of a bill other than an item or items,
or the-language qualifying an appropriation or di-
recting the method of its uses, he exceeds the
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. .
Hon. Robert S. Calvert, page 3 (M-1044)
constitutional authority vested in him, and
his objection to such paragraph, or portion
of a bill, or language qualifying an appropria-
tion, or directing the method of its use, becomes
noneffective. So that we are constrained to hold
that that portion of the veto message. . . was un-
authorized and therefore noneffective, and the
paragraph so attempted to be stricken out will
remain as a part of the aoorooriation bill."
Fulmore v. Lane, 104 Tex.-499; 514, 140 S.W.
405, 412 1911 . (Emphasis added.)
Similar situations that have arisen in the courts of our
sister states have been adjudicated in consonance with our holding
in this Opinion. Fergus v. Russell, 110 N.E. 130, 146-48 (Ill.Sup.
1915); Wood v. State Administrative Board, 238 N.W.,16, 18 (Mich.Sup.
1931); and.State ex rel. Turner v. Iowa Sta& Highway dom'n., 186
N.W.Zd 141, 151 (Iowa.Sup. 1971). See also, "Disapproval by governor
of a bill in part or approval with modifications", 35 A.L.R. 600
(1925), supplemented in 99 A.L.R. 1277 (1935), and the authorities
cited,therein.
Under this form of appropriation--a lump sum for the
biennium--our opinion is that the Legislature intended that the
District might receive the full lump sum at any time during the
biennium for which it was appropriated.
The Elm Creek Water Control District was created pursuant
to Article 8280-387, Vernon's Civil Statutes, and you are advised
that that statute constitutes sufficient preexisting law authorizing
you to issue a warrant honoring the Legislature's appropriation of
funds to the District. Attorney General's Opinion No. WW-1188 (1961).
Inasmuch as the Governor's attempted veto of the portion of
the appropriation for the District for the fiscal year ending August
31, 1973 is ineffective and nugatory, you are further advised that
the entire lump sum appropriation is valid, and that you may issue a
warrant in a lump sum of $5,000 to the District, rather than requiring
specific vouchers of requisition from the officers of the District.
Attorney General's Opinions Nos. MS-88 (1953), M-723 (1970) and
WW-1188 (1961); Attorney General's Opinion No. WW-187 (1957) is
distinguishable.
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. ,
lion.Robert S. Calvert, page 4 (M-1044)
SUMMARY
The $5,000 item of appropriation to the
Elm Creek Water Control District for the
biennium ending August 31, 1973, found at
page 128 of Article III of the current General
Appropriation Act (S.B. 11, Acts 62nd Leg., R.S.,
1971, as amended by S.B. 7, 1st C.S., same Leg.,
1971) is valid in its entirety, and the Comptroller
of Public Accounts has authority to issue a warrant
in a lump sum of $5,000.
Pursuant to Section 14 of Article IV of the
Constitution of Texas, the Governor has no au-
thority to veto a portion of an item of appropriation:
either the entire item must be vetoed, or none of it.
An attempted veto of a portion of an item is nugatory
and of no effect, and the item attempted to be vetoed
is valid in its entirety.
ney General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
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APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Mel Corley
Arthur Sandlin
Ralph Rash
Jack Goodman
SAW MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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