The Attorney General of Texas
October 16, 1979
MARKWHITE
Attorney General
Honorable Harvey Davis Opinion No. .m-6 9
Executive Director
Texas Department of Water Resources Re: Failure of the 66th
P. 0. Box 13087, Capitol Station Legislature to fund the Office of
Austin, Texas 787ll Public Interest in the General
Appropriations Act.
Dear Mr. Davis:
You have requested our opinion in reference to the failure of the 66th
Legislature to fund the Office of Public Interest. Section 5.181 of the Water
Code creates an office of public interest to insure that the Texas
Department of Water Resources promotes the public interest. The Office is
headed by a public interest advocate appointed by the commission and the
board. He is to be a party to all proceedings before the board. Water Code
s 5.181(c). A bii to repeal this section was introduced in the 66th
Legislature but failed to pass. The department’s budget request for fiscal
years 1980-81 included funding for the Office of Public Interest, but the
legislature failed to include an item for that purpose in the General
Appropriations Act. You ask whether the department may fund the Office
of Public Interest by transferring available state appropriated monies into
the Office of Public Interest Program.
Even though the appropriations act does not include a specific item to
fund the office of public interest advocate, there is no prohibition against
spending funds for that purpose. Indeed, there has never been a specific item
of appropriation for that office. See Acts 1977, 65th Leg., ch. 872, at
2986-2991. During the past bienniumhe office was funded from a general
administrative account. Since section 5.181 of the Water Code requires that
the public interest advocate be a party to all proceedings before the board,
we believe the board is obligated to appoint a public interest advocate and it
may fund that position from any appropriations available for that purpose.
Attorney General Opinion H-2ll (1974). Your specific question is phrased in
terms of transferring funds to the office of public interest function;
however, there is no necessity that the office be treated as a separate
expenditure item. So long as the funds for the office come from a single
appropriations item, no question of fund transfer need arise.
In light of our answer to your first question, we need not address your
second question which involves the effect of a failure to have a public
interest advocate.
P. 213
Honorable Harvey Davis - PageTwo (MW-69)
SUMMARY
The Department of Water Resources is required to have an office
of public interest advocate.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by C. Robert Heath
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
Rick Lowerre
William G Reid
Bruce Youngblood
p- 214