Untitled Texas Attorney General Opinion

March 20, 1952 Hon. M. B. McCoy, D. C. Opinion No. V-1423 President, Texas Board of Chiropractic Examiners Re: Legality of defraying from Austin, Texas Item 6 of the Board’s cur- rent appropriation certain * expenses necessary to ob- tain evidence of violations Dear Sir: of the Chiropractic Act. We quote from your request for an opinion of this office: as follows: “This Board now has an Investigator checking Chiro- practic offices throughout the State. Several cases in- volving a violation of the Chiropractic Law have been settled and disposed of by suspension and cancellation of licenses after a hearing conducted by the Board under the provisions of Section 14 of the Chiropractic Act. “Experience has indicated that we will not be able to obtain adequate and competent evidence to justify prosecution for violations of the Act, unless our In- vestigator is able to incur reasonable expenses in con- nection with obtaining evidence. By this, I mean that in certain cases, he may be required to pay for a chiropractic adjustment. He may have to obtain certi- fied copies of recorded instruments. He may need on the spot secretarial help in connection with taking an affidavit or in some instances, it will be necessary to have pictures taken. “As the situation now stands, we are ~informed that items of expenditures, such as the above, cannot be paid from the Chiropractic Fund. This will seriously handi- cap the Board in the effective enforcement of the pro- visions of the Act. It is necessary that we determine just how far we can expect the Comptroller’s Depart- ment to go in allowing expenditures, such as the above, to be paid out of our appropriation. “Question: In the enforcement of the Chiropractic Act, can this Board, through its Investigator or Board members, incur expenses such as listed above, and if .. Hon. M. B. McCoy, D. C., page 2 (V-1423) the answer is in the affirmative, can the Comptroller approve such expenditures for payment? ” The Chiropractic Act is codified as Article 4512b, Vernon’s Civil Statutes. That law creates the Texas Board of Chiropractic Examiners and outlines its purposes and duties. Under Section 14 of this act, the Board is vested with authority to revoke, cancel, or suspend the license of any person, or refuse to admit persons to its examinations and to issue licenses to practice chiropractic, after legal notice and a full and impartial hearing, for any of the reasons designated in paragraphs numbered 1 through 7. These reasons are listed as follows: “1. For failure to comply with, or the violation of, any of the provisions of this Act; “2. If it is found that said person or persons do not possess or no longer possesses a good moral character or is in any way guilty of deception or fraud in the prac- tice of chiropractic; “3. The presentation to the Board, or use of any license, certificate, or diploma, which was illegally or fraudulently obtained, or the presentation to the Board of any untrue statement or any document or testimony which was illegally or fraudulently obtained, or when fraud or deceit has been practiced in passing the examin- ation; “4. Conviction of a crime of the grade of a felony, or one which involves moral turpitude, or the procuring or assisting in the procuring of a criminal abortion; -5. Grossly unprofessional or dishonorable conduct of a character likely to deceive or defraud the public; habits of intemperance, or drug addiction, or other habits calculated in the opinion of the Board to endanger the lives of patients; “6. The use of any advertising statement of a charac- ter to mislead or deceive the public; “7. Employing directly or indirectly any person or persons whose license to practice chiropractic or any of the healing arts has been canceled, suspended or re- voked, or the association in the practice of chiropractic with any person or persons whose license to practice chiropractic or any of the healing arts has been canceled, suspened or revoked, or any person or persons who have Hon. M. B. McCoy, D. C., page 3 (v-1423) been convicted of the unlawful practice of any of the healing arts in any State, territory or district.” Section 14 further grants to persons aggrieved by any such action of the Board the right to have such issue tried in a proper district court of this State as therein provided. Section 11 of the Chiropractic Act provides: “The fsnds realized from the fee,s collected under this Act [see Secs.d, 9, and 101 shall con&it&e the ‘Chiropractic Examiners Fund” and shall -be applied to the payment of ‘necessary expenses of%e Texas Board of Chiropractic Examiners, includingthe expenses au- thorize~d,by said Board in snfmcirrg-,the provisions of this Act, and ~to compensate .members~ .nf the Board for the time actually s~pent in discharge of their official duties, in the sum of Ten Dolla,rs ($10) per day, plus their actual and necessary expenses. “All disbursements from said.fund shall be made only upon written approval of the president zmd ~secretary- treasurer oft the s I . Board ~ 0 *, and upon warrants drawn by the ComptroIler to be paid out,,of .said~.fund.” ,(Emphasis added throughout .) Section 2 provides that the Board “shall defray all expenses under this Act from fees provided in this Act.” The current biennial appropriation~bill (H-B. 426, Acts 52nd Leg., R.S. 1951, ch. 499, at p. 1320) appropriates to the Board out of the Chiropractic Exammers Fund as follows: ‘TEXA,S BOARD OF CHIROPRACTIC EXAMINERS (Out of~Chiropractic Examiners Fund) Personal Services For~,the Years Ending (Salaries and Wages) August -31, August 31, 1952 1953 1. Board Members per Diem. ~ $ 4.660.00 $ 4,680.OO 2. Executive Secretary. (I D I . e 3,840.OO 3,840.OO 3. Secretary-Bookkeeper I . . . 2,640.OO 2,640.OO 4. Investigator. , . I . . . . . D. 3,640.OO 3,840,OO Total a ~ 0 . 0 . n . I m0 . . $15 000 00 $15 00 00 Travel Expense . 0 . . . . a . 4:800:00 4:~oo:oo 2: Printing, postage, telegraph, telephone, office rent, equip- ment, bond premiums, re- pairs, stationery, office sup- plies and contingent expenses. 4,250.OO 4,250.OO Grand Total - Texas Board of Chiropractic Examiners. . . . e $24,050.00 $24,050.00” . Hon. M. B. McCoy, D. C., page 4 (V-1423) In Attorney General’s ,Opfnion Q-6638 (1945) ~&was held that expenses of the nature here ~invalved coatd not be paid.unless there was an express appropriation for th-atspecific purpose. An examin- ation of ~that opinion rweals~fhat no ~considirrntion was given to the appropriations madefor “contingent expense”by Item 5 pf Senate Bitt 33t;‘rP8th Leg., ‘l9’@3, ch:4%3, ‘p~.,8-&5, st Q. 969. Furthermore, the holding was predicated on Attorney Ge-l%Opirrion O-4222 (194l), involving a consideration,,~the‘t941 appropriation to the State Board or’Medicai Examinersbill (S.B. 423, AcCs47th Leg., ‘B.S. 1941; ch. ,5?I; p. llfrf eat p. i204) which did.nut contain a speci- ‘fit appropriation for ‘“contingent ‘expense. * For ~this reason we do not ,believe ,these opinions are controlling in arriving at an answer to your question Item 6 of the-~above appropriti~irm~~ppropriates a 1nit-1~ sum amount to cover’ certainenumerated specific ~purposes land also “contingent expenses.” Your qnestionwith~~ragard to defraying from Item 6 of the appropriation certain,exQenses mcsesary to obtain evidence ~ofviolation of the Chiropractic Act involves the determination of the meaning to be ascribed to the term “contin- gent expenses. 1( The term “contingent expenses ” is~frequently: used to con- note fufure expenses of an unknown and uncertain nature which may or may not’be incurred, and which depend on some future uncertain event. S~cott v. City of Jamestown, 21~N.W. 668, 673 (N; Dbk. Sup. W>. It is sometime~s used to~refer ton& expenses as are “poss~ible or liable, but n~ot certain to occur.(( Brannin v. Sweet Grass County, 293 Pac. 978, 972 (Mbnt. Sup. 1930). In Dunwoody v0 United States, 22 Ct. Cl. 269, 280 (lJ387), it is said: “The adjectives contingent, incidental, and miscel- laneous, as used in appropriation bills to qnalifg.-the word expenses, have a technical and,welldunderstood meaning; it is~usuaI’for Congress to name the principal classes of expenditure which they authorize, such as clerk hire, fuel,‘.light, posta~ge, telegrams, etc., and then to make a small appropriation for the minor and unimportant dis- .‘bursements incidental to any greatbusiness, which can- not well,be for~eseen, and which it would-be.useless to specify more accurately, For such disbursements, a round sum is appropriated under the head of ‘contingent expenses’, or ‘incidental expenses’, or ‘miscellaneous expenses.’ ” In Attorney General’s Opinion O-906A (1939), it was pointed out that an appropriated “contingent” fund in itself ordinarily im- Han, M. B. McCoy, D. C., page 5 (V-1423) plies unpredictable items of cost or expense. So, where the Legislature has foreseen various expenws-and provided for them definitely, funds provided f~or ‘contingent expense” cannot be used to supplement expenditures for items for which the Legislature made definite and specific provision, unless the context of the appropriation requires a contrary interpretation. Ordinarily, moneys of the contingent fund are to be used for purposes for which the Legislature made no specific itemized provision. In Attorney General’s ,Op?nion O-1294 (1939) it was stated that the appropriations for *contingent expenses” appearing in the 1939 appropriation act were intended by the Legislature to provide lump sum appropriations for those expenditures of a department for which the Legislature did not deem it necessary or expedient to make specific and separate itemized appropria- tions. We think a like intent should be applied to the appropria- tion under consideration here. In short, we think the appropria- tion available in Item 6 for ‘contingent expenses” &as intended by the Legislature for minor disbursements incidental to carry- ing out the purposes of the Chiropractic Act not elsewhere therein provided for. It is clear that the questioned expenditures would be for a purpose authorized by the Chiropractic Act. Section 11 of the act provides that, among other purposes, the Chiropractic Exami- ners Fund “shall be applied to the payment of necessary expenses . . . authorized by said Board in enforcing the provisions of this Act.” Section 14 empowers the Board to conduct hearings on the revocation, cancellation,-suspension, or withholding of licenses for persons who violate or fail to comply with that law. You have advised that the Board cannot effectively enforce the provisions of this Act unless your investigator may incur reasonable ex- penses in obtaining adequate and competent evidence that will justify prosecution for violations thereof. Accordingly, in view of the absence in the Board’s cur- rent appropriation of a specific item for enforcement purposes, it is our opinion that funds in Item 6, which are available for “contingent expenses,” may properly be used in the payment of expenses in obtaining necessary evidence for prosecutions, pro- vided the Board shall have first authorized the incurring of the expense toward the enforcement of the law. Under suitable cir- cumstances any of the expense items enumerated in your letter would be a proper expense in the enforcement of the Chiropractic Act. Furtheremore, under Section 11 of Article 4512b, the Comp- troller can legally draw a warrant for the payment of such expendi- tures. Hon. M. B. McCoy, D. C., page 6 (V-1423,) SUMMARY Item 6 of the curr~ent ~bienniat ,appropriation of the Texas Board of Chiropractic Examiners (H.B. 426, Acts 52nd Leg., R.S. 1951, ch. 499; Art. III, Sec. 1, p. 1320), which includes “contingent expenses” among~ its pur- poses, may -be used in the payment of expenses incurred in otitaining evidence of violations of~the provisions of the Chiropractic Act, provided the Board~authorizes the incurrence of the expense. Art. 4512b, Sets. 2, 11, 14, V.C.S. Yours very truly, APPROVED: PRICE DANIEL Attorney General Mary K. Wall Reviewing Assistant Charles .D. Mathews First Assistant Chester E. Ollison Assistant CEO:meh