November 30, 1951
Hon. C. H. Cavness Opinion No. V-1361
State Auditor
Austin, Texas Re: Several questions concerning
the disposition of soil conser-
vation district funds under
House Bill 97, Acts 5lst Leg.,
R.S. 1949, and House Bill 190,
Dear Sir: Acts 52nd Leg., R.S. 1951.
The first of the questions which you have submitted
for our consideration reads as follows:
“1. Should the total amount to be repaid the
State General Revenue Fund by each District as pro-
vided in Section 5, House Bill No. 190, 52nd Legisla-
ture, be construed to be the total sum of money paid
to the District as provided for in both House Bill No.
97 of the 51st Legislature, R.S., and House Bill 190
of the 52nd Legislature, or will it be the unexpended
sum reappropriated to the District only by House Bill
No. 190 of the 52nd Legislature, R.S.?”
In connection with this question, you submit the fol-
lowing:
“In regard to question No. 1, herein, the State
Soil Conservation Board has advised the various State
Soil Conservation Districts’ Boards of Supervisors
that the total amount each District will be required to
repay will be the amount of the unexpended balance at
August 31st, 1951, that is reappropriated by the provi-
sions of House Bill No. 190.
“On page 2 of your Opinion No. V-l 197 addressed
to Governor Allan Shivers, you have stated in part:
a ‘It is our opinion that House Bill No. 190, if it
becomes law, would be valid; that the provisions there-
of are in pari materia with the provisions of House Bill
No. 97; and that both Acts should be construed together
to make a harmonious whole.‘
Hon. C. H. Cavness, Page 2 (V-1361)
“In our audits of the various districts’ accounts
and records, we have found a considerable variation
between the Districts’ unexpended balances that will
result in a relatively small amount being repaid by
some Districts, whereas other Districts will be re-
quired to repay a considerable portion or all of the
money they have received from the State, if they pay
only the amount appropriated to them by House Bill
No. 190. On the other hand, if Section 5 of House Bill
No. 190 applies to the amount appropriated by both
House Bill No. 97, 51st Legislature, and House Bill
No. 190,‘52nd Legislature, all Districts would be re-
quircd to ultimately repay the total amount that has
been appropriated to them.”
Sections 1 and 2 of House Bill 190, Acts 52nd Leg.,
R.S. 1951, ch. 497, p. 1206, read as follows:,
“Section 1. The unexpended balances of all sums
appropriated to and granted the several soil conserva-
tion districts of Texas for the fiscal year ending Au-
gust 31, 1950, and for the fiscal year ending August 31,
1951, are hereby reappropriated and granted to such
soil conservation districts. A soil conservation dis-
trict shall be eligible to receive grants for each period
of the biennium after it has been duly organized and a
Certificate of Organization for the district has been
approved and signed by the Secretary of State. All
grants to soil conservation districts shall be made by
the State Soil Conservation Board based on the Board’s
determination of equity and need of the district apply-
ing for the grant.
“Sec. 2. Approval of all grants of assistance to
soil conservation districts as provided in this Act
shall be certified to the State Comptroller of Public
Accounts by the State Soil Conservation Board. Such
certification or approval by the State Soil Conserva-
tion Board, presented to the Comptroller, shall be suf-
ficient authority for the Comptroller to issue his war-
rants against any appropriation made for grants to soil
conservation districts and shall be also sufficient au-
thority for the State Treasurer to honor payment of
such warrants.
* ..
. . .
Section 5 of House Bill 190 reads, in part, as follows:
Hon. C. H. Cavness, Page 3 (V-1361)
. .: .’ It ,is further provided that each district
receiving funds under this Act shall pay five per cent
(5%) of any sums received as,rental payments on
equipment or machinery under lease to the State Treas-
ury for deposit in the General Fund, until the funds re-
ceived~by’a district under this Act shall have been re-
paid in full.”
From your statement in connection with your first
question, it is obvious that the State Soil Conservation Board in-
terprets Section 1 of House Bill 190 as reappropriating the unex-
pended balances of State appropriated funds previously allocated
to individual soil conservation districts directly to the districts
having such unexpended balances on hand at the end of the past
biennium. We are in accord with this interpretation. However,
such unexpended balance may or may not be the total amount which
a district will be called upon to repay under Section 5. There re-
mained in the State Treasury at the end of the past biennium an
unexpended balance ‘of the appropriation previously made to the
several soil conservation districts by House Bill 97, Acts 51st
Leg;, R.S. 1949, ch; 540, p. 1000. This unexpended balance was
likewise reappropriated and granted by House Bill 190 for alloca-
tion during the biennium to the various districts by the State Board
as provided in Sections 1 and 2 above quoted. Such grants when
received by the districts will unquestionably be funds received “un-
der this Act” and must necessarily be included in ascertaining the
total to be repaid under Section 5.
We do not think that State appropriated funds received
by individual districts under the provisions of House Bill 97 but
expended prior to the end of the past biennium should be included
in determining the amount to be repaid under Section 5. Gnly funds
received “under this Act” are required to be repaid. Funds ex-
pended prior to the end of the last biennium did not constitute any
part of the “unexpended balances” which were reappropriated by
House Bill 190. In addition to the excerpt which you quote from
Opinion V-1197 (1951), we call your attention to these additional
portions of Opinion V-1197:
“The caption of House Bill No. 190 states that
it is ‘an Act amending House ,Bill No. 97, Acts of the
Fifty-first Legislature, Regular Session, 1949. . . .’
~The body of the bill does not state that it is amending
said House Bill, and in reality does not do so except
by necessary implication and then only as to certain
provisions of House Bill No. 97, Acts 51st Leg., R.S.
1949, ch. 540, p. 1000, that are in conflict with the
provisions of House Bill No. 190, Acts 52nd Leg., R.S.
1951.
.
Hon. C. H. Cavness, Page 4 (V-1361)
“It is our opinion that there is no fatal conflict
between the caption and the body of House Bill 190.
We have carefully examined the caption of House Bill
No. 190 in connection with the body of the bill and have
concluded that the Act constitutes a complete bill with-
in itself and that the caption is sufficiently broad to
cover the various provisions contained in the body of
the bill. The portion of the caption of House Bill No.
190 which states that it is amending House Bill No. 97
should be rejected as surplusage. 1 Sutherland on
Statutory Construction (3rd Ed. 1943) 328.”
.’
_ Viewing House Bill 190 as a complete bill within it-
self rather than as an amendatory act, we do not think that funds
received ‘under this Act” can be properly construed to embrace
the sums received and expended under the provisions of House
Bill 97, a prior and entirely different act of the Legislature. It
is true that some districts will, as pointed out by you, be required
to repay a greater proportion of the State funds which they have.
received than will others. Nevertheless, under our interpretation
of Section 5, the requirement for repayment operates prospective-
ly only, rather than retroactively. Its fairness lies in the fact
that it is imposed with .full notice; its practicality, in the fact that,
being foreseen, it may be provided for.
<
Our answer to your first question precludes consid-
eration of your second, which is predicated on the assumption that
Section 5 of House Bill 190 requires repayment by districts of all
funds received under House Bill 97 and House Bill 190.
Your third question reads as follows:
“If a District at August 31st. 1953, has on hand :
any part of the sums appropriated by House Bill No.
190 of the 52nd Legislature, will such unexpended bal-
ance be required to be refunded to the General Reve-
nue Fund at that time? ”
In replying to your first question, we pointed out that
the unexpended balances of funds which had been allocated to dis-
tricts under House Bill 97 were included in the reappropriation
made by House Bill 190 of “the unexpended balances of all sums
appropriated to and granted the several soil conservation districts
of Texas for the fiscal year ending August 31, 1950, and for the
fiscal year ending August 31, 1951 . . .” Both these unexpended
balances and all other funds which may be granted to the individ-
ual districts as provided by House Bill 190 remain a part of the
appropriation made by House Bill 190 unless and until they are
properly expended. However, such funds as are not expended at
t
,
Hon. C. H. Cavness, Page 5 (V-1361)
the end of the cu~rrent biennium will revert to the General Revenue
Fund. This is so for the reason that under Section 6 of Article
VIII of the Constitution of Texas no appropriation may be made for
a longer term than two years. Therefore, at the end of the two-
year period the appropriation becomes ineffective; and any bal-
ance remaining therein must necessarily lapse. Att’y Gen. Ops.
2941 (1940) and V-316 (1947).
We next quote your fourth question and remarks in
connection therewith:
“*ill the five per cent (5%) of any sums received
as -cental payments on equipment or machinery, as pro-
vided in Section 5 of House Bill No. 190, 52nd Legisla-
ture, apply to District-owned equipment operated by the
District as well as to such equipment leased out to the
landowners?
“With reference to question No. 4, we have found
that some equipment will be operated by employees of
the District and the landowner charged an agreed sum,
whereas other equipment will be operated by the land-
owner who will pay rental for the use of it.
“From a practical standpoint, if the salaries or
wages paid ,the District employees~ during the perform-
ance of the work were deducted from the total charges
for it, the resulting balance would correspond approxi-
mately to the rental charges made for that type of equip-
ment operated by the landowner.”
Section 5 of House Bill 190 reads as follows:
“To carry out the purposes of the soi~l conserva-
tion district program as is provided in the State Soil
Conservation Law, supervisors may acquire by lease
or purchase machinery and equipment and operate such
machinery or equipment or may furnish same under
lease or rental agreement at prices being currently
charged for such services; provided, however, that the
charge in any particular project shall never be less
than the actual cost to the particular district for rea-
sonable rental, labor, maintenance, depreciation and
replacement of equipment. It is further provided that
each district receiving funds under this Act shall pay
five per cent (5%) of any sums received as rental pay-
ments on equipment or machinery under lease to the
State Treasury for deposit in the General Fund, until
c the funds received
have been repaid
by a district
in full.”
under this Act shall
. . .I
Hon. C. H. Cavness, Page 6 (V-1361)
This section clearly contemplates two types of opera-
tions. In some instances the district will operate the machinery
and equipment, procuring the labor necessary for such operations,
and in other cases the machinery or equipment will be leased or
rented to individual landowners who will operate the equipment
themselves or otherwise supply the necessary labor for such op-
erations. It is true that if the salaries or wages paid employees
or laborers secured by the district for performing the operations
were deducted from the total job charge for a project, the balance
might be compared to a rental charge for the equipment. How-.
ever, in such cases the agreement between the landowner and the
district would ‘constitute a contract for the entire job or project.
The consideration or price paid by the landowner would not, in
either legal or common parlance, be termed a rental payment.
Since the Legislature has expressly limited the sums from which
five per cent is to be taken to “sums received as rental payments
on machinery or equipment under lease,” we are of the opinion
that five per cent should not be deducted from sums received for
operations conducted by the district.
SUMMARY
The total amount required to be paid to the Gen-
eral Revenue Fund under Section 5, House Bill 190,
Acts 52nd Leg., R.S. 1951, ch. 497, p. 1206, is the a-
mount of the soil conservation district’s unexpended
balance of State appropriated funds which was on hand
at the end of the past biennium, plus the amount of any
additional State funds which may be granted the dis-
trict during the current biennium by virtue of House
Bill 190. Any unexpended balance of sums appropri-
ated and granted to a district under House Bill 190
will revert to the General Revenue Fund August 3 1,
1953. Tex. Const. Art. VIII, Sec. 6. The requirement
that five per cent of sums received as rental payments
on equipment or machinery under lease shall be paid
to the State Treasury does not apply to sums paid to
districts by the landowner for projects conducted by
the district.
APPROVED: Yours very truly,
W. V. Geppert PRICE DANIEL
Taxation Division Attorney General
Everett Hutchinson
Executive Assistant %Vh.d&%%~ ti
Mrs. Marietta MC regor Creel
Charles D. Mathews Assistant
First Assistant
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