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OFI?ICE &F
TEE &JTORXEY G%~ER&
Ausm. TEXAS
PRICE DANIEL
ATTO- GENellAL 13, 1.k
‘&larch
Bon. Claud Gllmer,~ggmap- *
Committee on A~roprletlons
HOIl~~~_._ .___,~+9tlves-~"
Austin, Te n8 Oplnlon No. v-84
Re: Constitutionalityof House
Bill No. 396,50th Leglsla-
ture, Incldenttel
Expenses
Fear sir: . . Sor l4embers.
Your request for en oplnlod by this depsrtment
upon the above
. titled aubjeot matter Is aa followa:
"Encloaeb you will Slnd House Bill
B.o.3% whloh has been Introducedand
Is now before the.ApproprlatlonCommit- '.
tee of the Hq!ye. .; .
.
'Thla bill Is en appropriation
blll for !lncidentalexpenses1 only for
membera i# the regular session. The Com-
mittee dealres to'know what In your opln-
'ioncan be included aa incidentalexpenses. ..
At the present time certain expenses lncl-
dent $0 the work of.each member la paid
from the oontingent expense account, such
as postage, stationery,and offi'iclal tele-
phone calls. .
"would the attached bill be oonstltu-'
tional If It sets a ms+num expense allow-
anpe to.each member w$th?ut regard to the
nature and amount of the expense.".
House Bill Ho. 3% ea subiltted to tg3Is ai
follows:
"H.B. Bo. 396 BY:
, ABISJ:
TO BE RNTITLSD
'>
Hon. Claud Gllmer, Page 2 -No. V-84
“AH ACT amMng an appropriationof the
sua.of Three Hundred Thousand
Dollars ()3OO;COO),or ao much
thereof es may be necessary,
out of any funds la the State
Treasury not otherwiseeppro-
prlated, to pay incidentalex-
penses OS the membera of the
~RegularSession of the Fiftieth
Legislature,such expenses not
to exceed Ten Dollars ($10.00)
per day per member: provldlng
?or ce$tificaties to the COUID-
troller; making reoords avail-
able to the public; and declaring
an emergency.
"BE IT RNA&D BY %T&tiISLATRRR OF TRR STATE OF TEXAS:
"Section 1.' There'la hereby appr.o-
prlated out of any funds in the State
Treasury not otherwiseappropriated,the
sum of Three Hundred Thousarrd-Dollars
($300,000),'~0$sb much thereof aa may be
necesssry,to pay incidentalexpenses of
the members of the Regular Session of the
Fiftieth Legislature such expensesnot to
exceed Ten Dollara ($10.00)per day per
member, . '.
"Section2.. The certlfl~ateof the
Secretary of the Senate, approved by the
President of $he'Senete,or the certlfl-
cate of the Chief Clerk of the House of
Repr,esentatlves,approved by the Speaker
thereof, Shall be sufficient evidence to
the Comptroller upon whloh to audit the
claims for expenses of the Piembersof the
Regular ?eaalon of the Fiftieth Legisle-
ture. ...
"Section3. Providing,however, that -
a record of allmoneys appropriatedin this
,Blllshall be msde svallable for public .Ln-
spectlon the same as any other publio re-
cords in this State.
"Section 4. The fact that the Regular
Session of the Fiftieth Leglrleture of the
AP-’
-- . ..‘,
Hon. Claud Gllmer, Page 3'- Ro. v-84 .; :
State of Texas la now la session, and pub-
lic policy requires that the,appropriations
made v thla Act shall be m&e immediately
evallable, cpeatee an emergency and an.lm-
Reratlve public necessity that the Constl-
t tutlonal Rule requiring bills to be read
'on three several daya in esch Howe be sus-
pended; and said Ruld la hereby suspended,
c and that this Act shall take etfect end be
in force Srom and after its passage, and
it 1s so enacted.'
This bill is an appropriationbill for lncl- .
dental'expenseonly for lpembersof the Regular Session.
Section 44 or Article III of the Conitltutlon
is 98 followst
"The Legislature shall provide by law
for the cotip&nsatlonof all officers, aer'
vanes, agents.and pu@llc contractors,not
pr&&uJ for in this Constitution, but shall
not grant extra compensation to~any officer,
agent, ae?ant, or public contreotors, aster
s@ch public ,servlCeahall'hsve been performed
or eontract entered into, for the performance
of the same; nor grant, by appropriationor
otherwise,any amount of money out of the
Treasury of the State, to any individual, on
a claim, real or pretended, when the asme shsll
nbt havibeen provld@d.forby pre-existing law;
nor employ anyone in the name of the State, un-
less authorleed by pre-ex&?tlng law."
The neceaelty for a pre-exit&g law to authorize
the appropriationof any monl68 whatsoever froipthe State
Treasury is.fundamentel. .Thls eaaentla1 pre-existing law to
authorl~zethe approprletlon in the present $natance consists
in the'Constltutlonitself, creating t&e Legislature,and
requiring it to function a8 a law-wklng brench of the Govern-
ment. This by neceisery lmpllcatlonauthorizes the payment
from the Treasury.ofall expenses, whether called "contln-
gent? or "IncIdental"or by whatsoever name, that are neceai
sbry to etibie the Legislature to perform ltficonstitutions1
duties. What perticulsr 6xpenses'comewithin the amblt of
that implied power cannot be stated in words ~of finality.
It undoubtedlywould lticludesuch things as poetage, statlon-
ery,~pages, printlag, and the like necessltles~of the Legls-
lature. This haa been the uniformly accepted constructionof
434
Hon. Claud Gilmer, Page 4 - Ro. V-84
the Conatltutlonby all dep3rtmentsconcerned since the
State's exlstenoe.
We under&and what is cixnmonlyknown as the ap-
propriationfor "contingentexpenses" Is designed to cove]
and is amply sufficientto cover all such items as above
indicated. Whether or not a particular item of expense 1:
Properly payable out .of such contingentappropriationla
an lndlvldualinquiry 88 to each such ols.lm. Those that
are properly classed aa such incidentalor contingentex-
penses are paMand those that sre not tb be so classed
are not psld.
'Thewtter of per diem to the members of the
Leglslst~ la, of course, conolusivel determinedby the
Constitutionitself (Art. III, Sec. 249. Likewise, the
item of trsvel expense la conoluslvelyfixed by the same
Section. Of course House Bill 396 does not contemplate
supplementingmembers per diem, or travel allowanceabove
that Of Section 24, or any contingent expellses,or interia
expense incident to Committee work or.the like. By the
' abov,e process of ellmlnatlon,it would appear that House
Bill 396 does not.contemplatethe psyment of any claim of
any member, for any sum, for any expense, that is author-
ized by any pre-existinglaw express ol;implied. We are,
therefore, of the opinion that the Bill, If enaoted into
law, would be unconstitutional.under Section 44 of Artlclt
III of the Constitution.
In reply to your hypotheticalquestion is to
whether.or not +blil which sets a maximum expense sllow-
ante to each member without regard to the-natureand s-
.
mount of expense, we beg to advise such a bill would be
unconstitutionalas a gratuity to the ~lndlvldual members
aocording as the items claimed constitutedpersonal busl-
ness of the respectivemembers. Moreover, tkere would be
no pre-existinglaw, nor could there be; for.such a'gratu.
ity as to the personal expense Items.
SUMMARY
'. (1) House Bill 396 of the 50th Legls-
lsture 1s invalid and If passed would not
authorlee the payment of monies from the
State.Treasury,for t.hewant of a pre-
.exlstlnglaw therefor. .(Constltutlon,Art.
III, Sec. 44).
.!,..
I
-.
Hon. Claud Gllmer, Page 5 - no. v-84
(2) ~A11expenses necessary to the func-
tlonlng of the Legislaturewy be lawfully
pald,from the State Treasury under the neq-
esaary lmpllcatlonof the Constitutionlt-
aelf, whether such expenses be denominated
"incidental!'or "contingent".
(3) A bill appropriatinga wxlmum ex-
pens6 ellowance to eac.hmember of the Legia-
latue, without regard to the nature and the
amount of the expenses,would be invalid be-
cause of the absence of 'pre-existinglaw",
(Constitution,Art. III, Sec. 44), and llke-
wise because of a violation of the Constltu-
tlon as 8 gratuity to the individual members
accordlng~asthe claims were for personal
buslnesa of the respective members. (Constl-
tution, Art. III, Sec. 44).
- .
Yours very truly
ATTORNEXGRliWfALOFTRXAS
BY
.' OS/acm/lh
Approved:OplnlonCommittee
02, Chairman
-