7
Boa. Claud Gllmer
Caamlttee on Appropriatlomr
House of Representatives
Austin, Texas
Opinion Ro. V-208
Reo Construction OS Section
4ga of Article III State
Constitution
Dear Sir:
Your letter request reads, In part, as
follows :
“The Approprlatfon Committee of the
House has directed the followlng fnqulry
as to the procedure contemplated and re-
quired under Section 49a of Artfcle
3 of the State Constitution, the amend-
ment of 1942 which requfren the Stat4 to
operate on a oash basis.
“Section 49a requires the State
Comptroller to Purnfeh each regular SesSlOn
of the Legislature with a statement of the
revenues to be available during the coming
and from whlah appropriations for
operatl n of State government will
blenniu%, be made.
“The second.pmagraph of the SeOtlOn
oontalnn four sentences, numbered SOr
reference ‘1,’ ‘2,’ ‘3,’ and ‘4’ and read-
lng a8 follows:
“Sentence ‘1. I ‘Prom and after
January 1 1945, save la the case
of emerge& and Imperative public
necessity and with a four-fifths
vote of the total meaberahlp of each
Home, no apgropriatlon in excess or
the aash and mtlalpated revenue of
the fund8 from which auoh aQQrOPrla-
tlon Is to be made shall be valid.
Hon. Claud Qllmer - Page 2--v-208
“Sentence ‘2.’ ‘From and after
January 1. 1945. no bill contalnina
an app~op~lak% shall be conelder;d
as passed or be sent to the Qovernor
for consideration until and unlees
the Comptroller of Public Accounts
endorses his certificate thereon
showing that the amount appropriated
Is within the amount estimated to be
available In the affected funds.
“Sentence ‘3 I When the Coap-
troller finds k amronriatlon bill
exceada the estim&d kevenne.. he
shall, endorse such.findiag thereon
and return:to the House in which seme
originated.
both th;‘Roure of R&preeentatlves
and the Senate and the necessary
steps shall be.taken to bring such
appropriation to within the revenue,
either by providing additional revenue
or reducing the appropriation.’
“If sentence ‘1’ had followed sea-
tence ‘4,’ and expressly provided that the orlglnat-
lng Rouse would have a further alternative of agala
phsrlmg the appropriation bill, knowing and lmtemd-
lag that same would become a deficit, the proee&ure
would be clear.
“It is consideredthat a full construc-
tion of the quoted section should be obtained so
that both Houses of the Legislature, the Conp-
troller, ,amd the Qovertror will be In ajpeeaent amd
in position to oontomplate the action that will be
.takem when an approprlatlom bill exceeds available
Femme, and 80 that all wfll understand the posl-
tion that such a bill will occupy.
“For the purpose of clarifyfng the ln-
formation desired, we aentlon the following ques-
tions I
Haa. Claud oilaer - Page 3--?T-208
“A. Wh# an appmprfatim _ .~.
with an '4mwemcog ana mperatav4
public neeessltyO 4lauae In It, Is
paased ln tljr uwrral mamaer of firrt
uonaa,lrfsratfcrr;r,plvd receIv48 a r44ord
vote of 4,&h or more 6f th4 &&al
mhCber@hfp of scab Hotme, will it
then bimQ*$ effeetir4 without re-
tura for ;n;logai&4mation ami%In t31a
light of l.nflut.ioa froa the camp-
troller that mme will ordats a de-
flelt?
“R e Xew 4atr aeatsncs ‘1 D aa gem-
ten44 ‘4’ be mamtrued 40 that aa4
will Itat b8 lx&d ln oaaniot BoF o&e
to 1lw.t the ethw?
"C. Will aerutems '1' ke cmaU4a&
a &rtlaar alt4matlve
4” re that th4 k&r-
lature wauid ,ret be controlled bf a
vote wf%hti the requirement6 of
aeateaw pl,g taken by both Hou8es
without the knowledge that such bill
would create a State defM%tP
"D. IA the ereat It 1s cok%#fdered
that t8o ~~Mrlea8 of senteme '1'
apply aM csatrpl 08 the first ooze-
8ideratfea OS a DIP*p tm weuld rrr4h
a4tfon preclude cons~deratfaa br t&4
Comptroller fn accordance rlth se*
tame W m rentewe ‘3OP
Will a btatene#it aarQvrprars4d
&ding by the Lepglrlaturo Of &m
~em4Cgenc.yand fmr*tf*a gublfa a*-
cesaftyO br 4ufffafeM ta Justify tie
requfpement of sdslrtencre *Xpa 4P Wlltf
It be n4cerrarg to recite BFa4iff.c;
faatm anl aecessfteur, eiroumtames;
and if aoS what *iltm Pequir4ments
will ocmtrolt IA tbfs swpitm8P
If It is consfdel?ed that an ap-
PiatiQn bill, found to create a
clt, will be returned for subsequent
Hon. Claud Qllmer + Page 4--V-208 ,..
consideration In each House, what
status will It occupy? Will It be
considered as a new and an original
bill? May the appropriation be re-
duced by either House? Is the bill
subject to amendment otherwise?
Could, for Illustration, a provision
reciting ‘emergency and imperative
public necessltj’ be added to the
bill?
“0 D Dbes the requirement of ‘4/5tha
vote of the total membership,of each
House I mean I.20 or more affirmative
votea in the House and 28 or more
afflrmatlve votes in the Seaat~e?
“Thanking you to advise in reference to
the above questions and such other lnforma-
tlon as you may consider necessary and of
advantage in ,connection with this subject. . .”
Section 4ga, Article 3 Constitution of
Texas, as adopted In election Ilovember 3, 1942 Is as fol-
lows :
“It shall be the duty of the
Comptroller of Public Accounts In advance
of each Regular Session of the Legislature
to prepare and submit to the Oovernor and to
the Legislature upon Its convening a state-
ment under oath showing fully the financial
condition of the State Treasury at the close
of the last fiscal period and an estimate of
the probable receipts and Qlsburseaents for
the then current fiscal year. There shall
also be contained in said staterent an ItemI.-
aed estimate of the anticipated revenue based
on the laws then In e?fect that will be re-
ceived by and fer the State from all s0u.rc48,
showing the iund accounts to be credited
during the suqeeedlng biennium and said state-
ment shall contain such other lnfomnatlon as
may be required by law. Supplemental state-
ments shall be submltted’at any Special Ses-
sion of the Legislature and at such other
tfaes as may be necessary to show probable
ahanges D
“From and after January 1, 1945, save
in the case of emergency and Imperative
.
Hon. Claud Gilmer - page 5--v-208
public necessity and with a four-fifths
vote of the total membership of each House,
no approprfatfon in excess of the cash
and anticipated revenue of the funds from
whfch such approprfatfon is to be made
shall be val%d. From and after Zanuary 1,
1945, no bfll contafnfng an appropriation
shall be considered as passed or be sent
to the Governor for consideration until
and unless the Comptroller of Publle Accounts
endorses hfs certlflcate.thereon showing that
the amount approprfated is within the amount
estimated to be avaflable fn the affected
funds. When the Comptroller finds an appro-
priation bill exceeds the estimated revenue
he shall endorse such finding thereon and
return to the House in which ssme originated.
Such Information shall be fmmedfately made
khown to both the House of Representatives and
the Senate and the necessary steps shall be
taken to bring such appropriation to within
the revenue, efther by provfdfng additional
revenue OF reducing the approprfatfon.
"FOP the purpose of ffnancfng the
otitstandfng obligations of the General Reve-
,nue Fund of the State and placing fts current
accounts on a cash basis the Legfslature of
the State of Texas fs hereby authorfzed to
provide for the issuance, sale, and retfrement
Of serial bonds, equal fn prfncipal to the
total outstanding, valid, and approved ob-
1 ations owing by said fund on September 1,
19
*$ 3, provided suoh bonds shall not draw
Wtcrest fn excess of two (2) per cent per
annum and shall mature within twenty (20)
years from date. Adopted election Nov. 3,
1943 * ”
The courts have not construed the provi-
siona-6f Sectfon 4ga, Artfole 3 of our Constitution.
In Attorney General’s Opinion O-6497 we
hold, ‘“that in cases of emergency and imperative public
necea&itg the Legislature mayp by a four-fifths vote of
the..tdtal membership of each House, pass a? appropriation
in excess of cash and snticfpated revenue.
”a 0 . that a foup-fifths vote
would not be evfdence that an emergency and
Hon. Claud Gllmer - Page 6-4-208
.:f
an imperative public necessity existed.
Section 32, Article 3 deals with the
qu$stlon of 'imperative public neCe6Sity'
In Suspending the rule requiring bills
to be read on three several daya, and'.
this sectlon,$rovides that this necessity
shall be atated in a preamble or In a body
of the bill.. Section 39, Article 3 deals
with the question of ‘emergency in pro-
viding for the time at which a bill shall
take effect, and this section states that
an emargency must be expressed In a Qre-
amble or fn the body of the Act. It is
true that no such requirement Is contained
.,:in'Section 49a, but we think, in view of
the above mentioned sections of the Constl-
tutlon, the safe plan would be to state
the emergency and lmperatlve public necessity
either In the preamble or in the body of the
bill."
In our Opinion No. 0-6738a we~isald:
"Section 4& of Article III Is
what Is QOQUhrly ktlom as the 'pay as YOU
go' amendment to the Constitution of Texas
duly adopted In an election held November 3,
I942. It Is generally understood, as is
manliest from the first paragraph of Section
@a, not quoted, that the purpose of this
aniendment was to keep in approximate balance
tM anticipated annual Income and expendi-
tures of the State of Texas, a very whole-
some purpose. Or stated in another way, the
evil sought to be remedied was the approprla-
ti,on and disbursement of moneys in excess of
anticipated or actual Income. . . .
"Section &a clearly provides that
bills containing appropriations must have been
referred to the Comptroller of Public AC- i
counts and must contain his endorsement or
certificate thereon (which admittedly were
not done In this Casey showing that the amount
appropriated Is within the amount estimated to -.
be available in the affected funds, 'save
In the case of emergency and imperative public
necessity' and with a four-fifths vote of (1)
.
Hon. Claud Gi-lmer - Page 7--v-208
the total~membershl9 of (2) each House."
In giving you our opln?.on, we will not
attempt to answer your questions categorically, as we
believe we can better clarify the matters inquired about
by fllustratfons.
An appropriation bill passes both Houses
with a Toti-fffths vote of the total membership of each
House. The amount approgrfated fs in excess of the cash
and antfclpated reverie of the funds from which such ap-
proprfatfon fs made. ‘The bill recites that an emer ency
and fmperatfve publ$e neoessfty (stating what it Is 7 re-
quires that this approprfation be made notwithstanding the
fact that It exceeds the estimated revenue. This bill
would,be considered passed, and If not vetoed, would be- ,i,
come effectlvt. The .pr$loqs of said S$3on 49a you _I'*
&Tnate as Sentetice Sentence ‘3 and Sentence .%
would not be appllcabl~. _.., *..
The same appropriation bill .sontaining the
emer.gcncy and fnq3eratlve public necessity clause (as out-
lined above), Is passed,,by the Legislature by a vote of
less than four-fifths of the total membership Of each
house, or it ~asscs by,a four-fifth vote 0r the total
member&i9 of each house but does not contain the emergency
snd,:&s9eratfve public weessfty oPause (as outlined above).
This bill so tassed wouldike $ubgect to th$ provfsi~ns you
P;$pate as Sentenae ‘2 Sentence @3 and %entence
That 18, the Comptroller would find that the appro-
priation bfll exceeds the estimated revenue and would en-
dorse such finding on the bill and return ft to the House
In which It originated and immedfately make such lnforma-
tion known to both Houses. By the express language 0r
that 9art of said section you designate as “Sentence ‘21n
sueh bill would mot be consfdered as paesed. It fe not
a new bill. It would be subject to amendment as to either
form OP .substawee. The Legfslature would then have three
methods by whioh it could legally pass such appropriation
bill,and make ft effectfvee, that is, (1) the bfll could be
amended so as to include the emergency and imperative pub-
lic necessity clause (as outlined above), if the bill as
orfglnallg passed dfd not eontafn same, and then pass same
by a four-fifths vote of each House, or (2) the kglslat~ure
cou1.d amend the bill by reducing the appropriation so the
amount would mot be fn exce6s of the eash and anticipated
revenue of the funds from which the appropriation Is made,
OP (3) the Legfslature could pass an additional revenue
act that would fnorease the anticipated revenue to such
extent that the amount so apppoprfated in the bfll would
Hon. Claud Gllmer - Page 8 -- v-208
*
not exceed the cash and anticipated revenue of the funds
from which such appropriation Is made.
The, above construction gives full forces
and effect to all the language employed In said section
o? the Constitution and Is In accordance with the rule
of construction announced by the Court In Cordova v.
State, 6 Crlm. App. 212, 220; "In expounding a constltu-
tlonal provision, ~such construction should'be employed
as will prevent any clause, sentencez, or word from being
superrluous, void or lnslgnlflcant. Furthermore, It
harmonizes all ~rovlslons.
SUMMARY
In order for a bill to be valid
that makes sn appropriation In excess of
the cash and antlclbated revenue of the
funds mom which such appropriation Is to
be made, it must contain an emergency and
imperative public necessity Clause (Stating
the emergency and necessity that requires
tke appropriation notwithstanding It ex-
ceeds such cash and anticipated revenue),
and It must be passed by a four-fifth8 vote
af the total membershlp of each House. If
a/pill that makes an 'appropriation In excess
of'the cash and anticipated revenues is pass-
ed with a less vote than four-firths of the
tutal membership of each House, or passes
with a vote or four-fifths of such member-
ship but not containfng such emergency
clause, same should be returned by the Camp-
troller, with a finding thereon that the ap-
proprlatlon therein exceeds the cash and
anticipated revenue, to the House In which
It originated. It would then have the same
status as though It had never been voted
upon, and would 1s~ subject to,amen&sent as to
either form or substanae.
Yours vdrf truly
WVG:mnrc;bt ATTORHEYGENERtiOFTEULS
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