Honorable L. A. Woods
State Superintendent
of Public Instruction
Austin, Texas
Opinion NO. o-5469
Re: Validity of the Qove?nor'B
approval of a deficiency appro-
priation to cover items of ex-
pense already Incurred.
Dear Mr. Woods:
Your request for an opinion Is as follows:
~"Attached $0, will find a copy of a de-
ficiency appropriation granted the State De-
partment of Education.
"In requesting this deficiency appro-
priation we specifically asked that $160.00
of the amount be allocated to the third
quarter of our appropriation Number D-801
for the purpose of paying telephone expense :~.~
for the month of Hay.
'"This grant was approved and signed by
the Governor on May 25th. The Comptroller's
Department advised us that the $160.00 re-
quested for the purpose of paying the May
telephone expense canno&--be used for the
purpose because the expense was Incurred
before the appropriation was available.
"Since the $160.00 was speciflcally re-
quested and grantee for the purpose set forth
above, and unless so used will lapse, we re-
quest your opinion aa to the use of this fund."
. .
Honorable L. A. Woods - page 2
The deficiency was improvidently granted as to
the item of $160.00 for the purpose of paying May tele-
phone expense, and payment cannot be made therefor.
Article 4351 of the Revised Civil Statutes govern-
ing the matter of deficiency claims provides that the applicant
therefor, "shall at least thirty days before such defii
ciency shall occur, make out a sworn estimiateof the amount
necessary to cover such deficiency until the meeting of the
next LegIslaturea" The power of the Governor therefore is
thus limited with respectto approving and,allowing such
claims.
,,,InOpinionNo. o-4865 we answered the question,
"May the Legislature appropriate moneys to pay obligations
Incurred before the appropriatfon to pay for same is made?",
as follows:
"The Legislature . . o shall not I ~ . grant,
by appropriation orotherwise:, :any amount of money
out of the treasury of the State, to any individual,
on a claim,,.realor pretended, when the same shall
not have been provided,for by pre-existing law. s e *"
"A~public ,officerwhose appropriations are
exhausted cannot bind the State for subsequent
expenditures. His authority to contract is only
within the limit of the funds which the Legislature
has authorized him to expend. Any greater expendi-
ture is without authority of law. Expenditures
in excess of these authorized in advance by the ~,
Legislature are made without authority of 'pre-
existing law',,,
and under Section 44 Article III
of the Texas Constitution the.Legislature cannot
appropriate,~moneysto pay such claims. Port Worth
Cavalry Club v. Sheppard (Sup.Ct.) 83 S.W. (2) 660,"
In the'cavalry Club Caseyit was said:
"In the case at bar, the Adjutant General
was limited In his right to contract (for,rentals)
to the amount of his appropriation bill. He was
also limfted.by the terms of such appropriation.
When"he ~-attemptedto go beyond the powers conferred
upon him by law, he acted without authority of law,
and such act was and is void, and does not bind
the State."
Honorable L. A. Woods - page 3
There had not only been an approved deficiency
claim by the Governor, but there had also been a specific
subsequent appropriation by the Legislature in that case.
Your question, therefore, is answered as above
stated.
Whatwe have said does not apply to that portion
of the item covering calls or charges after the approval
of the claim by the Governor.
Yours very truly,
A+ORREYGERERAL OFTEXAS
BY Ocie Speer
Assistant
APPROVED Jul 31, 1943
ffroverSellers
First Assistant
Attorney General
0S:MR:BT