Untitled Texas Attorney General Opinion

August 24, 1949 Honorable Robert S. Calvert Comptrollerof Public Accounts Austin, Texas Dear Sir: opinion NO. V-894 Re: Validity of approptiliit- tlon of funds In LB. 322, Acts 51st Leg., R.S., 1949, to the De- partment of Education and other agencies from the Foundation School Fund. 'Your reque‘stfor an opinion relates to the validity of the appropriationto the State Department of Education and other agericlesfrom the Foundation School Fund in the General DepartmentalAppropriation Bill (House Bill 322, 51st Legislature). We quote the questions submitted: "1. Is the appropriationof funds contained in the ffeneralDepartmentalAp- propriationBill (House Bill 322, slat Legislature)~tothe State Department of Education and other agencies from the Foundation School Fund valid in view of the provisions of Senate Bill No. 117, slat Legislature, creating said fund and the provisions of Senate Bill No. 116, 51st Legislature,providing the manner in which money shall be expended from such fund? “2. If you answer to the above question is in the negative, is such ap- propriationvalid a8 an appropriation from the General Revenue Fund?" Hon. Robert S. Calvert, Page 2 (V-894) You state that you know of no 1itigatJon or departmentalpolicy or rule bearing on the quea- tions submltted. Section 1 of S.B. 117, Acts 51st Leg., R.S., 1949, reads in part: "... there is hereby appropriated, -allocated,transferredand credited to a:speclal fund to be known as the Founda- tion School Fund such an amount as Is de- termined by the Foundation School Fund Budget Commlttee,which is hereby creat- ed...." The Foundation School Fund (from the Clear- ance Fund) and the Foundation School Fund Budget Com- mlttee,(StateCommissionerof Education, State Auditor and State Comptrollerof Public Accounts) are created by said Senate Bill 117 as appears from the portion thereof quoted above. Section 1 of said Bill further provides the purpose for which said funds shall be transferredand credited to the Foundation School Fund: "... for the purpose of financing a Foundation School Program as defined in the Foundation School Program Act...." Article X of S.B. 116, Acts slat Leg., R.S., 1949, (FoundationSchool Program Act) reads in part: "Warrantsfor all money expended ac- cording to the provisions of this Act shall be approved and transmittedto treasurers of depositoriesof school districts in the same manner as warrants for State appor- tionment are now transmitted." It will be noted that Section 1 of Senate Bill 117 contains a similar provision: ",.. warrants for all money expend- ed from the Foundation School Fund shall be approved by the State Commissionerof Hon. Robert S. Calvert, Page 3 (V-894) Education and transmittedby him to the treasurers of depositoriesof school dls- tricts to which grants are made in the same manner as warrants for State appor- tionment are now transmitted." We do not construe the provisions of~the Acts to be a limitation upon the power of the Legls- lature to make an appropriationfrom the Fund for the support of administrativefunctions described in the Gll.merAlkln~laws. The language merely describes the procedure for payments which are authorized to the school districts. The same Legislaturemade specific appropriationsfor administrativepurposes from the Foundation School Fund. Section 1 of H.B. 322, Acts 51st Leg., R.S., 1949, reads In part: n... there is hereby appropriated : for each of the fiscal years of,the bi- ennium ending August 31, 1951 ...$490.000 to the State Department of Education from the Foundation School Fund, created by Senate Bill 117, Acts of the Regular Ses- sion, 51st Legislature,1949...." Subsection (34). Section 2 of H.B. 322, Acts 51st Leg., R.S., 1949, reads In part: "There is hereby specificallyappro- priated out of any moneys in the General Revenue Fund not otherwise appropriated, the amount necessary for each month if on a monthly basis, or each year If on a year- ly basis, of the biennium ending August 31, 1951, to pay the full amounts contemplated and provided by Senate Bill No. 117 ... should there be Insufficientmoney ... to carry out in full the purposes and provl- slona of said Senate Bill No. 117....' The Intention of the Legislaturein enact- ing Senate Bills 115, 116 and 117, and House Bill 322 is not entirely clear from the language of the indlvl- dual Acts and thereforewe belltevethey should be taken together and examined to arrive at the true meaning. !Phestatutes relate to the same subject matter, and may be considered to be in sari materia. Hon. Robert S. Calvert, Page 4 (V-894) In 2 Sutherland Statutory Construction (3rd Rd. 1943) 535, It Is aaid: "Statutesare consideredto be & pari materlq --~to pertain to the same subject mstter -- when they relate to the same person or thing; or to the same class of persons or things, or have the sams purpose or object." The rule that statutes In narl materia will be considered together applies with peculiar force'to Acts passed in the same Session of the Legislature. 39 Tex. Jur, 258, Statutes, Sec. 137, and cases there cited. A fundamentalrule to be applied In the con- struction of a statute Is to-ascertain the legislative Intent, and when once afvzertalned,it Is the law. See Anar. Inc. v. Texas Underwriters.et al., 129 S.W.2d 374 (Tex. Clv. App., 1939, error ref.). The language, *... all money expended ac- cording to the provisions of this Act shall ...n in Senate Bill 116, is not exclusive and does not prevent the Legislaturefrom appropriatingmoney out of the Fund by another Act at the same Session for admlnistra- tion of the Foundation School Program. The appropria- tion In House Bill 322 is therefore harmoniouswith the provisions of Senate Bill 116. If the Legislature intended this provision to be the same In both Acts, the words, "accordingto the provisions of this Act," may be supplied in Senate Bill 11 . 2 Sutherland Stat- utory Construction (3rd Rd., 19431 453; 39 Tex. Jur. 183, Statutes, Sec. 96, and cases there cited. We think such was the intention of the Legislature. $here is no necessary conflict between the language, ... for the purpose of financing a Founda- tion School Program ... in Senate Bill 117, and the appropriationbill, and such language Is not a limita- tion upon the Legislature in allocating funds for or appropriatingmoney from such Fund for administration necessary to carry out the purpose of the Fund. Section 1 of Article I, Senate Bill 116 (the Foundation School Program Act), reads in part: Hon. Robert S. Calvert, Page 5 (V-894) I, It Is the purpose of this Act C,. to guarantee to each child OS school age in Texas the avallabllltyof a mlnlmum Foundation School Program for nine (9) full months of the year. and to establish the eligibilityrequire&r&s applicable to Texas public school districts in con- nection therewith." Section 2 of Article I, Senate Bill 115, reads In part: "The Central Education Agency ahall exercise, under the Acts of the Leglsla- ture, general control of the system of public educationsat the State level...." This language of the Acts (SIB+ 115, 116, 117 and LB, 322) discloses interdependenceof purpose. The Foundation School Program cannot become a reality until activated by administrativeofficers and agencies provided in Senate Bill 115 "for general control of the System of Public Education at the State level." There- fore, funds for salaries of administrativeofficers to conduct the Program at the State level are as neces- sary to the Program as are funds for payments to the school districts. The program cannot function without admlnis- tratlve supervisionand the expenditureof funds for that purpose. Thus, the administrativecost of the Pro- gram Is In reality a part of the Program Itself. AS has already been pointed out, the Legislaturehas made a specific appropriationfor that purpose In House Bill 322. House Bill 322 does not attempt to amend or repeal any of the provisions of Senate Bills 115, 116 and 117. These Acts relate to the same general sub- ject and should be considered together. If being SO considered.thes can be harmonized and effect given to hearing; Nell1 v. sldered,'thereis no repugnancybetween tie prOvlsLons of these statutes. They may stand together and effect Hon. Robert S. Calvert, Page 6 (V-894) may be given to the entire provisions of each In a+ cordance with the establishedrules of construction. Brown v. Chancellor,61 Tex. 438 (1884). The Acts name two sources of State funds for the Foundation School Fund -- transfer from the Clearance Fund by the Comptroller In an amount de- termined by the Foundation School Fund Budget Com- mittee as necessary to finance the Foundation School Program described in the Foundation School Program Act, and transfer from the General Revenue Fund should there be insufficientmoney in the Fund to carry out the pur- poses expressed in Senate Bill 117. We think from an examinationof the Acts the Legislature intended,by the enactment of Senate Bills 115 and 116, to create substantiallynew admlnlstra- tive machinery for the conduct of the public free school system of Texas and, by the appropriationin House Bill 322, to pay the cost of such system, including admlnls- tratlon, from funds allocated to the Foundation School Fund created by Senate Bill 117. It follows that the Legislaturemust have intended to authorize the Comp- troller to transfer money into the Fund to pay adminls- tratlve expenses since It made an appropriationfor that purpose from such Fund. To determine the legis- lative intent to have been otherwisewould render the legislativeaction Ineffectiveand useless, and it is not presumed that the Legislature intended to do a use- less thing. 39 Tex. Jur, 245, Statutes, Sec. 131, and cases there cited. As pointed out In SouthwesternGas and Electric Co, v.'State, 190 S W.2d 132 (T PP.9 1945, affd. 193 S,W.2d 6753, an Intent% E?io a useless, Ineffectivething should never be ascribed to the Legislaturein performanceof Its law enacting functions. There is a presumptionagainst a construc- tion which would render a statute ineffect~iveor in- efficient or which would cause grave public in ury or even inconvenience. Bird v. U.S., 187 U.S. 11$ (1902); also see U.S. v. Powers, 307 U.S.214 (1939). The Legislaturehas the duty to 'I*..provide by law for the compensationof all officers, servants, agents, and public contractors,not provided for in this Constitution...," Texas Const. Art. III, Sec. 44. Therefore if House Bill 322 is a "law" and does not violate other constitutionalrestrictionsand is not Hon. Robert S. Calvert, Page 7 (V-894) contrary to general law, it Is valid and should be given effect. There Is a rule of law recognized in ,prevlous opinions of this department that when by general atat- ute a fund derived from a particular source %a devoted to a certain purpose such fund may not be diverted by a general appropriationbill to other and differentuaes, Johnson v- Fernuson, 55 S.W.2d 153 (Tex. Civ. App.; 1932, error dlsm.1; Attorney General's Opinions Nos. O-700 and V-412. We do not consider the appropriationfrom the Foundation School Fund for the support and maintenance of the State Department of Education and other agencies named as appropriatingmoney to a use different from that to which It is devoted under the terms of the Gilmer- Alkln laws. The appropriationIn House Bill 322, it will be seen, Is not contrary to the Gllmer-Alklnlaws and Is harmonious with the Constitutionand laws of this State and does not contravene the rule of law ~(thatan appropriationbill may not operate~to alter or change the eneral law) announced in State v. Steele, 57 Tex. 203 718821, and followed in opinions of this department. Attorney GeneralIs Conference Opinions Nos. 1802, 2787, 2970, 2965 and Attorney General's Opinions'Nos. 1745, O-700, O-1637, O-2573, and V-412. We conclude, therefore, that the approprla- tlon which is the subject of your inquiry is valid as an appropriationfrom the Foundation School Fund and authorizesyou to transfer, in addition to the amount determined and certified by the Foundation School Fund Budget Committee, to the Foundation School Fund from the Clearance Fund, or from the General Revenue Fund should there be insufficientmoney in the Foundation School Fund, for the purpose of paying salarles,.per diem of Board Members, office supplies and equipment, traveling expenses, and other necessary expenses, the amounts set.forth in House Bill 322, Acts of the 51st Legislature. The only part of House Bill 322 now before us for considerationis that portion of Section 1 ap- pearing at page 75, Senate and House Journal Supple- ment, 51st Leg., R.S., dated June 29, 1949, making ap- propriationsto the State Department of Education and Hon. Robert S. Calvert, Fage 8 (V-894) other agencies from the Foundation School Fund for salaries, per,diem of Board Members, office supplies and equipment, traveling expenses, and other neces- sary expenses, and the provisions of Subsection (34) of Section 2 thereof, appearing at page164, Senate and House Journal Supplement,51at Leg., R.S., dated June 29, 1949, as the same relates to the appropria- tions contained in the Bill to the State Department~of Education and other agencies for admlrilstratlvepur- poses from the Foundation School Fund. We express no opinion on the portions of the Bill not here involved. SUWMARP - The provision in the General Depart- mental AppropriationBill making speclflc- appropriationsto the Department of Rduca- tlon and other agencies from the Foundation School Fund is In harmony with general law and the Constitutionof Texas and is a valid appropriation (construingthe effect of the provisions In H.B. 322, Acts 5lst Leg., R.S., 1949, upon S.B. 115, 116 and 117, Acts 51st Leg., R.S., 1949). Very truly yours ATl!ORNEYGENEXALOF TJ3XAS Bv -Y Everett Hutchlnson Assistant EH:db