TEEA~-ORNEYGENERAL
,'\ OF TexAs
Aun-rw. - 78723
January ~10, 1974
The Honorable Robert S. Calvert Opinion No. H- 207
Comptroller of Public Accounts
State Finance Building Re: Validity of various provisions
Austin, Texas of The General Appropriations Act
for fiscal 1974 and 1975
Dear Mr. Calvert:
You have requested our opinion concerning several riders to~the Appropri-
ations Act forfiscal 1974 and 1975 (House.Bill l39. 63rdLeg. ) which appear in
ArticleV, the General Provisions.- One is Section 8 (p. V-37) whichprovides
’ for payment for injuries suffered by state employees while performing the duties
of any hazardous position-and rsquiree: “The ~expenditure of any appropriation
for the purposes authorized by this Sectionshall have the approval of the
Governor. ; . .‘I
Section 37 of the same Article deal8 with “Computer and Computer Related
Equipment and Servicer”. It contains the provision that:
“Funds appropriated in this Act and budgeted by
:, agencies andidepartuients in Articles I through IV for
the scquisitio~;~f.com~tar.land computer-related .equip-
ment or services, including-software program.products
and the employment on a fee basis of any private firm or
,~i perron acting%n the capacityof dataprocessing consul&.
~,tants or supplying computerrupport services for any
I: executive department or agency shall be expended only
*. after, a determination by the Governor. in accordance
.with the~provisions of House Bill No. 50, Acts of the
~Sixty-second Legislature, Fourth Called Session, that
the ,following ~facts have occurred:
p. 970
The Honorable Robert S. Calvert. page 2 (H-207)
.-
“(a) That a detailed report has been prepared
outlining the steps taken to utilize like
resources already existing within the
agencies of the state and the conditions
requiring the additional resources.
‘l(b) That the assistance of the Systems
- ‘
Division of the State Auditor’8 Off&ce
and the Office of Information Services,
Governor’s Office, has been sought and
that both have concurred in the proposed
expenditure, i’
Your questions are:
(1) Is the rider, requiring approval by the Governor of
the expenditure of any appropriation for injuries valid?
(2)Is the rider with reference to the computer services
a valid rider insofar as it requires the determination
by the Governor that subsections (a) and (b) have been
complied with?
(3) Is subsection (b) of the second rider valid infofar
a* it requires ¤ce of the State Auditor? ’
(4) Is subsection (b) a valid rider ~insofar as it requires :
~the concurrence of the Office of.Information Services
.of the Governor% Office?.
:
Both of the riders about which you inquire apply across the board to
state agencies,- offices and departments. Thus they would apply alike to con-
stitutional offices, such as that of the Attorney General, as well as statutory
offices. We find with little difficulty that the rider making the Governor’s
approval a prerequisite .to the expenditure of appropriated’funds’ is‘ invalid. We
need only rerer to Attorney General Opinion M-1141 (1972) holding that a rider
in the Appropriations Act requiring approval of the Governor for expenditure
p. 971
.- --
.- The Honorable Robert S. Calvert, page 3 (H-207)
of appropriated funds to be used to pay dues. registration fees, or any kind of
similar expense incurred in joining or participating in any type of organization,
association. or society was invalid: Attorney General Opinion M-1191 (1972)
holding invalid a rider in the Appropriations Act authorizing executive depart-
ments and agencies of the State to transfer funds when requested by the Governor
to do so; Attorney General Opinion M-1199 (1972) holding invalid a great number
of riders in an appropriations act requiring approval of the Governor for the
expenditure of funds appropriated for specific purposes.
The 63rd Legislature submitted to us a proposed bill which would have
given to the Governor budgetary authority, among other things, by withholding
approval of expenditure8 he considered unnecessary, etc. We advised the
Legislature that, in our opinion, the bill as written would be unconstitutional.
Attorney General Letter Advisory No. 2 (1973) stated:
“The Bill is invalid also because it purports to
subject to the supervisory authority of the Governor
those executive offices and departments established by
the Constitution. The framers of our Constitution shaped
a plural executive to administer the State. The relation-
ship of the offices constituting the executive branch of
government is fixed by the Constitution, the Legislatur,e
cannot alter it. Though the Governor may demand
certain disclosure8 of them pursuant to Article 4, $ 24
of the Constitution, he cannot interfere with the exercise
of their power or assume any supervisory control over
them.
“The separation of powers principle also denies
him any such supervisory role over legislative or
judicial arms or agencies of the government. If they
discharge function8 which constitutionally could not be
assigned to the Governor initially, he cannot be given
supervision over them. ”
We thus answer your first question that the rider purporting to require the
approval of the Governor as a condition precedent to the expenditure of any
p. 972
The Honorable Robert S. Calvert, page 4 (H-207)
appropriation for payment for injuries is invalid
With reference to your second, third and fourth questions, the language
which we have quoted invokes the provision8 of House Bill 50,62nd Legislature,
Fourth Called Session (Act8 1972, 62nd Leg., 4th C. S. ; ch. 5, p. 8). Section
1 of that Act (now found as Art. 689a-46, V. T. C. S. ) provides:
“The’Governor of the State of Texas is authorized
to find any fact specified by the Legislature in any appro-
priation bill as a contingency enabling expenditure of any
designated’item of appropriation. ‘I
Section 2 of the Act provide8 that the Governor’s ,determination shall-be
based upon evidence: that it shall be filed with the Comptroller and shall be
final, subject to revie+in the courts? The statute has not been the subject
of either an Attorney General opinion or court decision.
Insofar as the statute will authorize an appropriation to be made to hinge
upon the determination by the Governor of the existence of .a fact, and not upon
any exercise of his discretion, we think it valid. In 1942 the Pink Bollworm
Act (Articles 68 through 82, V. T. C. S. ) called for the Pink ~Bollworm .Comniis-
sion to determine whether or not there was an infestation of pink bollworms
and to make such recommendation8 to the Goverior a8 deemed sufficient to.
the protection of the cotton industry. ‘I. . .Should,this r.eport express the
conclusion that ‘it is dangerous to the cotton ‘industry of Texas that cotton be
grow&in this State along the boundary adjacent to such infestation, the Governor
shall there upon proclaim such area . . . a nbn-cotton zone. . ::‘I Article 71,
V. T. C. S.
In Williams v. State, 176 S. W. 2d 177 (Tex. Crim. 1943) the constitutionality
of this provision was challenged and upheld. The Court said:
“The question of this delegation of authority ha8
been much before the ‘courts, and especially is that true
in recent years by the enlarged powers conferred upon
administrative boards and tribunals. The generally
accepted rule governing such matters now appears to
p. 973
--__ __ ..--~- _.__. --~
0
.
,-. The Honorable Robert S. Calvert, page 5 (H-207)
be that a legislative body may, after declaring a.
policy and fixing a primary standard, confer upon
executive or administrative officers the power to
fill up the details, by prescribing rties and regula-
tions to promote the purpose and spirit of the legia-
lation and to carry it into effect. hi such cases the
action of the Legislature in giving such rules and
regulation8 the force of law doe8 not violate the
constitutional inhibition against delegating the
legislative function . . . ” (176 S. W. 2d.at 183)
Therefore we answer your second question that generally an appropriation
may be made subject to a determination by the Governor, or another adminis-
trative officer, that an event has occurred or a fact exists.
However, when we look at the specific requirement8 of subsection (b), i. e.,
that the State Auditor’s office and the Governor’s office have concurred in the
proposed expenditure, we find that this suffers from the same invalidity that
we ascribed to the requirement of the approval of the Governor for expenditures
for injuries. We therefore answer your third and fourthquestions that, insofar
as the rider requires a finding that the State Auditor’s office and the Office of
Information Services of the Governor’8 office have concurredin the proposed
expenditure for the computer and computer related equipment and services,
which concurrence .is not necessarily based on a finding of fact, the rider is
invalid.
SUMMARY
The Legislature may not, by rider to the Appropriations
Act, require approval by the Governor or other executive officer of
expenditure8 by all agencies, departments and offices of the State
of a particular nature. A finding by the Governor of the existence of
a particular fact may be required as a prerequisite to an expenditure.
p. 974
The Honorable Robert S. Calvert, page 6 (H-207)
Opinion Committee
G
p. 975