Honorable Roy S. Loventhal, Chairman
Livestock Sanitary Commission
W. ,T. Waggoner Building
~FortWorth, Texas Opinion No.@2388-A
Re: Reconsideration of
Opinion No.O-2388
Dear Sir:
This department has received your request for a
o-2388.
reopnsideration or modification of 'Opinion,No.' we
set out below the applicable portion of your letter of
original request.
"Will you please.advise whether or not
'gectionB under head of 'Salaries and Other:
Provisions', page 146 Senate.Journal, Rouse
,Bill 427, Acts of the Regular Session of the
46th Legislature, forbids cooperative agencies
such as the Federal Government or .County C,om-
missioners' Courts of this State, supplement-
ing the salary of a gtate paid employee.
"The Livestock Sanitary Commission of
Texas has employees in the office of the Pre-
datory Animal Division, Bureau of Biological
Survey, United States Department of the In-
terior, in San Antonio, that are doing work
identical to Federal employees In that office.
"The Federal employees compensation is
somewhat larger, and the Government or other
agencies referred to above agree to supplement
the State paid employees salary in order that
all those doing the same work in the same of-
fice will receive the same compensation."
Departmental Opinion No.@2388 held as follows'.
~"Thiswill acknowledge receipt of your
request for an opinion on the question of
whether .ornot certain employees of the Live-
stock Sanitary Commission of Texas working in
. e..
Honorable Roy S. Loventhal, Page 2
the office of the Predatory Animal Division,
Bureau of Biological Survey, United States
Department of the Interior, may have their
salaries supplemented either by the Federal
government or by the commissioners' courts.
"We assume for the purpose of this opinion.
that the employees referred to are provided for
and their salaries fixed b the Departmental
Appropriation Bill of the 1 6th Legislature of
the,State of'Texas.
"The ,following pertinent provisions are
contained in Senate Bill 427, Acts of the 46th
:..eglslature:
"'The appropriations herein provided are
to be construed as the maximum sums to,be ap-
propriated to and for the several purposes
~named herein, and the amounts are intended to
cover and shall cover the entire cost of the
respective items and the same shall not be sup- '~
plemented from any other source; and, except
was~otherwiseprovided, no other expenditures
shall be made, nor shall any other obligations
be incurred by any department of.this State,
provided however that nothing herein shall
prevent any department head from paying less
than the,maximum amount set forth herein for
any salaried position.
"'Limitation of Payments. Except as other-
wise provided, whenever, by virtue of the pro-
visions of this Act, items are to be paid out
of fees, receipts, special funds or out of
other funds available for use by a department,~
it is the intention of the Legislature to
limit expenditures out of said fees, receipts,
special funds or other available funds to the
purposes and in the amounts itemized herein,
and it is so ,provided.
"'It is provided that any ,,nurse
employed
by the State Health Department not receiving
$125.00 per month under this Act may have her
Honorable Roy S. Loventhal, page 3
salary supplemented from Federal funds in
the sum of $12.50 per month upon approval
of the proper Federal authorities.'
"The Legislature, in providing that the
salaries of nurses employed by the State
Health Department might be supplemented out
of Federal funds upon approval by the proper
Federal authorities,.,manifestsa legislative
Intent to prohibit the supplementing of the
salaryof' any,~other-stateemployee.
"It is the opinion of this department ~'
therefore that the salaries of the employees
involved in your inquiry cannot be supplemented,
either by the F~ederalgovernment or the com-
mlssloners'~courts of this State;"
On September 19, we wrote you as follows:
"This 'departmentis in receipt of~your
letter of September 12th wherein you request
a modification'or reconsideration of the above
opsnion.
"This has been assigned to.the writer for
attention. .Formy information, please send me ~'
a c~opyof the cooperative agreement entered Into
pursuant to the 'statutoryauthority granted by
t;t;.lz;;, 41st Legislature, FirstCalled Session,
. Also, I should appreciate knowing then
exact procedure whereby the Federal Government or
agency would make federal funds available and how
it would be .dlsbursed."
In respons~eto our inquiry~Mr.~C. R. Landon; Dis-
trict Agent for the United Sta~tesDepartment of the Interior,
advised us:'that they (the two clerks) each have what is
known as Agent appointments under the United States Depart-
ment of the Interior. These appointments state the amount
of salary to be paid from Federal funds and the amount to
be paid from State funds. The total,salary is based upon
the Federal salary rates for the type of work required of
these employees."
In the light of this information, it would seem
that the Federal Government pays the two clerks in con-
sideration for their services rendered pursuant to their
Honorable Roy S. ~Loventhal,page 4
individual capacity as agents of the United States
Departme'ntof the Interior, and this being done
irrespective of the fact that they incidentally
occupy at the same time the position of State em-
ployees.
The money paid these clerks in their capac'ity
as a 'Federalagent springs from a source and travels
a channel s'eparateand distinct from those funds appro-
priated by the State Legislature. These funds never
reach the State Treasury. The point of its origin and.
disbursement is the Unlted.States Treasury. (See Report
of State Comptroller ~Re:FederalFunds.)
Senate Bill No.~427,,Acts of the 46th .Legislature,
is the .current.~Approprlation
Bill. 'Certain portions of that
Act which are considered as ~applicable follow:
(1) ~"The appropriations herein provided
are to be construed as the maximum sums to be
appropriated to and for the several purposes
named herein, and the amounts are intended to
cover and shall~cover the entire cost of the
respective Items and the same shall not be
supplemented from~any.other source.“
(2) ,,?Theproperofficeror officers of ~'
any State Departments, bureaus, ,ordivisions
of Staae Agencies are hereby authorized to
make application for and accept-any gifts,
grants, or allotments of funds from the United
States Government to be used on State coopera-
tive and other Federal projects and programs
in,Texas. . . Any of such Federal Funds as
may be deposited in the State Treasury are
hereby‘ appropriated to t~hespecific purpose
authorlzed by the Federal~Government." '(Note:
The numerical classification of these sections
is ours).
Acts 1929, 4lst Legislature, First Called Session,
p. 235, authorizes the Livestock Sanitary Commission of Texas
to enter into coop,erativeagreements with the United States
Honorable Roy S. Loventhal, Page 5
Departm nt of the Interior to effect the control and
eradicaeion of predatory animals.
It is now~submitted that the above quoted pana-
graphs of the Appropriation Bill do not apply to, and,
therefore, cannot control the situation presented~here.
It is to be noted that Section (l), supra, uses
the phrase "The appropriations herein provided." This
language gives rise to the supposition that the Legis-
lature did not intend to deal with funds extraneousto
those mentioned in and specifically dealt with in the
Act. In Section (2), supra, the Legislature sought,to
appropriate "any . . Federal Funds as may be deposited
in the State Treasury:" The Federal Funds used to sup;
plement the clerks' salaries in the instant case never
reach the State Treasury; therefore, they have not been
appropriated by the Legislature. Consequently no pro-
vision of that Act could possibly be made applicable.
The Appropriation .Bill and its provisions can
exercise no Influence over the funds under consideration
by reason that they are completely foreign to its @here
of applicability. There is here a direct relationship
between the Federal Government and certain of its agents.
They perform their Federal duties for which they receive
their Federal pay. There exists no Intermediary period
whereby the State could claim or establish jurisdlctldn
for the purpose of directing the subsequent disburse-
ment.
Article 16,.Section 33, of the Texas Constitution
provides:
"The accounting officer of this State
shall neither draw nor pay a warrant upon
the treasury in favor of any person, fo,r
salary or compensation as agent, officer
or appointee, who holds at the same time any
other office or position of honor, trust or
profit, under this State or the United States,
except as prescribed in this Constitution.
Provided that this restriction as to the draw-
ing and paying of warrants upon the treasury shall
not apply to officers of the ~NationalGuard of
Texas, the National Guard Reserve, the Officers
Reserve Corps of the United States, nor to hen-
listed men of the National Guard, the National
Guard Reserve, and the Organized Reserves of
the United States.'
Honorable Roy S. Loventhal, Page 6
The clerks are commissioned agents of the United
States Department of the Interior, and, accordingly, hold
Federal positions of "honor, trust, or profit" within 'the
meaning of that phrase. None of the enumerated exemptions
in the above quoted constitutional provisipn embraces this
situation.
Therefore, under the given facts, our opinion Is
that no provision of the AppropriationBill would prevent
the State employee's salary from being supplemented by
Federal Funds; but, Section 33, Article 16, supra, would
prohibit them from receiving any salary or,compensation for
their services rendered the State so long as this Federal
relationship continues.
Any portion of departmental opinion numbered
O-2388 in conflict herewith is overruled.
Yours very truly
ATTORNEYGENERAL OFTEXAS
BY
Wm. -J. Fanning
Assistant
BY
GW:RS Grundy Williams
APPROVED Oct.,22, 1940
Gerald C. Mann
Attorney General of Texas