October 20, 1970
Hon. J. W. Edgar Opinion No. M- 709
Commissioner
Texas Education Agency Re: Whether the Legislature has
201 E. 11th Street appropriated funds to estab-
Austin, Texas lish and maintain regional
diagnostic facilities as au-
thorized by Section 11.15 of
the Texas Education Code, as
Dear Dr. Edgar: amended, and related questions.
You have requested an opinion concerning the above stated
matter. We quote from your letter:
"Section 5 of House Bill 156 (Code provision
11.15), as amended by H.B. 432, 61st Leg., directs
that the Commissioner of Education shall transmit
to the 62nd Legislature an Interim report on the
status of the research on the problem of diagnosin
and treating language-handicapped children, and (2 7
include in the report an itemized estimate of the
money required to conclude research project satls-
factorily by August 31, 1972. In implementation of
this research program contemplated by the Act, especially
Section 11.15(h), subsections (2) and (3) of Texas
Education Code, which call for the establishment and
operation of at least three regional experimental
diagnostic facillties,~and subsection (4) which
authorizes the making of agreements toward the estab-
lishment thereof, we currently are confronted with a
two-fold problem.
"First8 Is there an appropriation to sup-
port the cost of establishment and operation
of such regional facilities?
"Second8 May subsection (4) of Section 11.15(h)
T.E.C., be construed to empower the Texas Educa-
tion Agency to contract with private firms,
clinics or other acceptable associations for the
performance of such experimental diagnostic
treatment and program services, pursuant to Agency
adopted regulations and/or guidelines?
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Hon. J. W. Edgar, page 2 (M-709)
“The Office of State Comptroller has apprised
this Agency orally that in the absence of an Attorney
General ruling It could not honor requests of this
Agency for warrants In payment of costs for the es-
tablishment and operation of such regional experimental
diagnostic facilities, because there is no language in
House Bill No. 156, as amended, or any other statute,
which provides that such research program shall con-
stitute a part of and be financed from the Foundation
School Program or its Fund; and secondly, because there
is no estimate or specified amount appropriated to the
Texas Education Agency from the General Revenue Fund
for such {eglonal and experimental diagnostic facilities
purposes,
The gist of the first question appears to be whether there
is a specific appropriatlon.and prior authorization by the Legisla-
ture to pay the cost of the establishment and operation of the re-
gional facilities mentioned in your request.
Section 44 of Article III, Texas Constitution, requires
pre-existing law as a base for a specific appropriation. Austin
National Bank v. Sheppard, 123 ‘f&.272, 71 S.W.2d 242 (19341.
Section 6 of ArtlcleVIII, Texas Constitution, requires
that a.specific appropriation be made before money is drawn from
the treasury. The definition of “specific” as set forth in Section
6 was interpreted by the Texas Supreme Court In National Biscuit
Company v. State, 134 Tex.293,135 S.W.2d 687 (1940)r (page 6931
“It is sufficient if the Legislature authorizes
the expenditure by law, and spec;fles the purpose for
which the appropriation Is made.
In the instant case, House Bill No. 2, Aats 61st Leglsla-
ture, 2nd Called Session, 1969, p. 890 (last appropriations act)
provides:
“There is hereby appropriated for the biennium
ending August 31, 1971 . . . to pay ‘the State’s part
of the Foundation School Program as provided for in
. . House Bill No. 156, Chapter 451, . Acts of
the 60th Legislature, Regular Session, 19671 . . .
“There Is hereby specifically appropriated out
of moneys in the Qeneral Revenue Fund not otherwise
appropriated the amount necessary to pay the full
amounts contemplated and provided by Senate Bill
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Hon. J. W. Edgar, page 3~ (M-709)
No. 117 . should there be Insufficient money
in the fund lreated bv said Senate Bill No. 117
to carry out the purposes and provisionsof
Sedate Bill No. 117 . House Bill No. 156 . . .
The appiopriatlon above shall be ex-
v
pen ed under
- .” the .terms and provisions of said Senate
Bill No. 117, supra, and the respective laws herein-
above cited
respectively.
House Bill No. 156 referred to in the above, Act .was
codified ae Article 2654-lc, Vernon’s ,Civil Statutes, and later
adopted in the Texas Education Code as Section 11.15. At the same
time, as adopted In the Code It was amended by House Bill 432, Acts
of the 6lst Legisiature, Regular Session, page, 228 (1969). The
net effect of this legislation is that House Bill 156, as referred
to In the above quoted sections of the Appropriation Act, is very
much alive, and in our opinion serves as existing law upon which
a specific appropriation was made by the Legislature In the last
Appropriation Act.
Your second question also requires an affirmative answer.
The authority and obligations of Section 11.15(h) ,of the
Texas Education Code was not affected by House Bill 432, supra, and
said Section authorizes and requires the. Central Education Agency to
establish a minimum number of experimental diagnostic facilities with
advice from the advisory council. This same section of ~the Code, and
also pertinent provisions of House Bill 432, specifically provide that
the agency shall make necessary agreements and contacts to establish
the diagnostic facilities, and further authority Is given to seek
assistance of both public and private concerns to develop a program
for such facllltles~
SUMMARY
Prior law exists upon which a specific ap-
propriation was made to pay the cost of establlsh-
lng and operating regional experimental diagnostic
clinics as contemplated by the “Barnes-Wright Study
Act”, Article 2654-lc, Vernon’s Civil Statutes.
Specific authority is given by Section 11.15(h)
of the Texas Education Code for the Central Education
Agency to contract with private firms to set up and
operate the experimental diagnostic programs pursuant
to Central Education Agency guidelines.
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Hon. J. W. Edgar, page 4 (M-709)
D C. MARTIN
Prepared by James C. McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Ivan Williams
Jerry Roberts
Fisher Tyler
Roger Tyler
MEADEF. GRIFFIN
Staff Legal Assistant
ALFmDWALKER
Executive Assistant
NOLA WHITE
First Assistant
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