Honorable George’H. Sheppard
Comptroller’of Public Accounts
Austin, Texas
Dear Sir: Opinion NO. o-4788
Re: Authority of Comptroller to ex-
pend unused balances from preced-
ing biennium of 2% of cigarette
taxes set aside for enforcement
purposes.
Your letter of August 20, 1942, requests the opinion
of this Department upon the following question:
May the Comptroller expend during the current bien-
nlum the unused balance from the previous biennium of the 2$$
of cigarette taxes set aside for enforcement purposes?
The current appropriation bill (S.B. 423, Acts Reg.
Sess ., 47th Leg .) provides :
“Two and one haif per cent of the cigarette
stamp tax and cigarette fees collected as provided
by lathtogether with balances on hand at August 31,
1941 and August 31, 1942, are hereby appropriated
to the Comptroller from which the items above shall
be paid, and for the adminlstration and enforcement
of the cigarette and occupation tax laws,”
Article 7047@, Sec. 30 (Chap. 241, Acts Reg. Sess,
44th Leg, as amended) provides:
“That two and one-half per cent (2%) of the
gross amount of taxes p permft and license fees and
other funds derived under the”provisions of this Act
shall’be set aside in a special fund subject to the
use of the Comptroller and so much of said~fund as
may be necessary shall be expended in the administra-
tion and enforcement of the provisions of this Act
and so umch of the proceeds of two and one-half per
cent (2=$$)of said t.axand funds shall be and the
same is hereby approprfated for said purposes, same
to be paid monthly as needed; provided,that payment
for the,manufactu,ringor printfng of the cigarette
. -_
Honorable George H. Sheppard, page 2 O-4788
ta'xstamps and for any expenses incurred by the
Board incident thereto shall be made from the
revenue derived from the cigarette tax before
such fund'is allocated under the provisions of
this Act and so.m.zchof~'saidfund as may be neces-
sary is hereby appropriated for such purpose; any
unexpended portion of said funds.'sospecified shall
at the end of each biennium be paid in the proper
proportion to the funds to which the cigarette tax
fund shall be apportioned."
The general'law, Art. 7047c, sec. 30, insetting aside
2% of the cigarette taxes for enforcement--purijoses,provides
specifically that any portion of such 2s as may not be expended
at the end of the blennium "shall at the end of each biennTum be
paid in the'proper proportion to the funds to~whlch the cigarette
tax fund shall be apportioned." The currentappropriation bill,
by the provislon above quoted, attempts to make the balance.on
hand~at the end of the preceding biennium, towit, August 31,
1941, available for expenditure by the Comptroller. S.B. 423
thus conflicts with the general law, which allocates such bal-
ances to certain funds in the Treasury.
It is apparently well settled that an appropriation
bill cannot repeal OP amend a general law. See our opinion
O-2573 and authorities therein cited. S.B. 423 is the general
departmental appropriation bill for the current biennium. There-
fore, the provision in S.B, 423 does not repeal the requirement
of the general law, Art, 7047c, Sec. 30, that balances unex-
pended at the end of each biennium of the 2s enforcementfund
shall be paid into certain funds. It follows that such balance
is not available for expenditure by the Comptroller for enforce-
ment purposes.
The provision of Art. XX, sec. 1 of H.B. 8, Reg. Sess.,
47th Leg. quoted In your letter, towit: "All revenue, other than
that part allocated for enforcement ouruoses, derlved and collect-
ed from the taxes levied by Chapter 241, Acts of the Regular
Session, Forty-fourth Legislature, and any amendments thereof
or thtreto, shall be hereafter and is hereby allocated as follows:
does not affect this conclusion. It does not purport
co'enlarge the amount available to the Comptroller for expendi-
ture, so as to allocate unexpended balance at the end of a
biennium for expenditure for enforcement during subsequent fiscal
years.
You ask if the conclusion expressed above applies also
to the unused portion of allocations of one half of one per cent
of the tax on oil.
Honorable George Ha Sheppard, page 3 o-4788
S. B. 423 contains the following rider:
"One half of one per cent of the oil production
tax collected; as provided bylaw together with
balances on hand at August 31, 1941,'the August 31,
1942, is hereby approprrated to-the Comptroller from
which the items llsted above shall be paid, and~.for
the administration and, enforcement of the natural re-
source and gross receipts tax laws."
Article 7057a, Sec. 9 (1) provides in part:
I,
. . 0 Before any division or allotment of the
occupation tax oneoil collected under the provisions
of thrs Act, Is made one-half of one per cent of the
gross amount of said tax shall be set aside in the
Treasury subject to the use of the Comptroller in
the administration and enforcement of the provisions
of this Act, and so much of the said proceeds of one-
half of one per cent of the occupation'tax on oL1
paid monthly as may be needed in such admInistration
and enforcement shall be expended in the amounts and
for purposes fixed by the Legislature in the General
Appropriation Bill. Any unexpended portion oftsaid
fund so specified shall at the end of the fiscal year
revert to the respective funds or accounts in proper
proportions to which the occupation tax on oil Is
proportioned at the end of the fiscal gear; . . a *" _.
The same reasoning and authority control thIs~sltualion.
The general law provides for allocating the unexpended balance
at the end of the fiscal year to certain funds in the Treasury.
The appropriation bill, attempting to repeal or amend the general
lawsso as to authorize the Comptroller instead to expend such
balances dur~ingthe present fiscal biennium for enforcement pur-
poses, Is ineffective; the Comptroller must abide the terms of
the general law and allocate the unexpended balances in the en-
forcement account accordingly at the end of each fiscal year.
Yours very truly
ATTORNEY GENERAL OF TEXAS
RWF:nw:wc By s/iI.W.Fairchild
R.W. Fairchild
APPROVED SEP 3, 1942 Assistant
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/&Q3 Chairman