Hon. George’ H. Sheppard ‘~
Comptroller of Public Accounts
A~ustin,~ Texas
Dear Sir: Opinion No. O-2258
Rep: Payment of accounts incurred
by Assistant Attorneys General
for expenses in connection with
the performance .of work’for
other’state departments /AS pay-
a’ble :out,of the- appropriatjons
made to such other State depart-
ments.~
This will acknowledge receipt.of your letter of April 1’9, 1940.
In this letter you quote the following protiisions of Senate Bill 427, Acts’ of
the .46th Legislature:
.
.” The appropriations herein provided are to be, construed as
the maximum sums to be appropriated to and for the several .pu+-
poses named herein; and the amounts are intended to, cover’and
shall cover the entire cost of thenrespective items and the same
shall note be supplemented from any other source; and, except as
otherwise provided, no other expenditures shall be made, n&r shall
any other obligation& be incurred by’any department of this State.” .
.‘“It is’provided that no expenditure shall be made for traveling
expenses by any department of~this State .in excess of the amount
of motley itemized herein for said purpose. This provision shall
be applicable whether the item for traveling expenses is to be paid
out of the appropriation from the General Fund, from fees, receipts
or special funds collected by virtue .of certain laws of this State, oy
from~ other funds .(exclusiv& of Federal funds) available;,ior .use by a
department.’
.“,Transfers from Special Fup$s:’ In order that the c,ost of legal
work an@ law enforcement may be eiuitably distributed and charged
Hon. George H. Sheppard, Page 2, O-2258
against the various administrative enforcement funds, the State Comp-
troller of Public Accounts and the State Treasurer shall, as soon as
possible, after August 31, 1940 and August 31, 1941, respectively,
transfer to the General Revenue Fund of this State from the following
special finds and allocated collections thereto a sufficient amount of
money to pay the entire cost of legal work and law enforcement, includ-
ing salaries, rendered by the Attorney General’s Department for the
respective State agencies involved. The Attorney General shall, on or
before August 31, 1940, and on or before August 31, 1941, submit to the
State Comptroller and the State Treasurer an itemized statement,
under oath, setting forth the cost of legal work and law enforcement,
including salaries, rendered by his Department to the agency affected.
In making the allocations aforementioned the State Comptroller and the
State Treasurer shall deduct from the following funds the amounts charged
against the same as certified by the Attorney General: Oil and Gas Enforce-
ment Fund, State Highway Fund, Gas Utilities Fund, Motor Fuel Tax En-
forcement fund, Old Age Administration Fund, Securities Act Fund, Cigar-
.ette Tax Enforcement Fund, Motor Transportation Rec~eipts, Enforcement
Funds col1ecte.d by Banking Commissioners, State Board of Barber Exam-
iners, State Board of Hairdressers and Cosmetologists Fund, Enforcement
Fees collected by Board of Insurance Commissioners, Enforcement Funds
collected by Commissioner of Agriculture, Enforcement Funds collected
by Bureau of Labor Statistics, Operators and Chauffeur’s License Fund,
proceeds derived from the sale of alcoholic beverage stamps before allo-
cation, Special Game Fund, and other such Special Funds for which ser-
vices are rendered by this Department.*
You refer to the situation wherein employees of this department
incur expeases in connection with the rendition of services directly for an-
other State department, and ask the following three questions:
“1. Would provision No. 1 be violated if accounts incurred
under such conditions were paid out of appropriations made to
other state departments ?
*2. Should provision No. 2, as construed in conference opin-
ions Nos. 3082 and 3089, be applied to the appropriation made for
traveling expenses for your Department when the traveling expense
accounts incurred by your assistants in representing the Depart-
ments listed in provision No. 3 7
I
Hon. George H. Sheppard, Page 3, O-2258
“3. If question No. 2 is answered in the negative, please
give your interpretation of the force and effect of provision No.
3.”
The question to be determined is whether the appropriation made
to another State department is available for the payment of the traveling
and other expanses incurred by an Assistant Attorney General in direct and
immediate connection-with the handling of a lawsuit or other matter for such
State department.
Effect, of course, is to be given to the intent of the Legislature.
In ascertaining that intent, the ordinary rules of statutory construction are
to be applied to the appropriation bill. Because the Legislature has appro-
priated sums of money to the various State departments for maintenance and
miscellaneous items of expense, without any direction definitely indicating
,the limit of the authority of the department to make ~expenditutes therefrom,
we are driven to the application of general principles to the appropriation
bill.
As a matter of sound business and accounting principle, an expense
is properly to be regarded as that of the pr,oject which occasions it and which
directly receives the benefit accruing from the expenditure. This is true in
government as in private business enterprise.
The Attorney General is charged with the duty of law enforcement
generally. In the discharge of his functions, he represents the State directly;
but in the discharge of his functions he also serves as the legal representative
and advisor of various State departments who are charged by law with the ad-
ministration and enforcement of certain statutes. Through the rendition of
legal services, he assists them in the performance of their duties in that re-
spect. That the Attorney General’s assistance is had, however, does not al-
ter the fact that the primary duty of administration and enforcement, in such
instances, is on the particular State department served, and the cost involved
that incident to the administration and enforcement of the particular law.
The function of an appropriation to a State department is to provide
funds for the discharge of the duties imposed by law upon that department.
Where a department is charged with the duty of administering and enforcing
a particular law, the institution, prosecution and defense of lawsuits to that
end is as much the duty of that department as it is of the Attorney General,
^ .
Hon. George H. Sheppard, Page 4, O-2258
whose services are enlisted therein. And the expense incident thereto is
an expense of.administering and enforcing such law.
It follows from what has been said that where a department charged
with the administration and enforcement of a law enlists the services of the
Attorney General in order to perform such duty, the expenses immediately
incurred in connection with the performance of the service may be borne out
of ~the appropriation made to that department, or out of the Attorney General’s
appropriation. The availability of the appropriation to defray such expense
is determined by ascertaining that the expense is incurred by permission of
the department head for the purpose of administering and enforcing the laws
committed to the department --not by the departmental connection of the per-
sons who incurs the expense in,rendering the service requested.
To illustrate: The General Law provides for the appointment of as
many aa’aix$ssistant Attorneys General by the Attorney General, as may be
requested by the Texas Liquor Control Board, to assist the Board in the en-
.forcement of the liquor ‘laws. (V ernon’s Revised Penal Statutes, Article. 666,
Section 7(c).) The law provtdes that the salaries of these Assistants shall be
paid from the funds appropriate~d to the Liquor Board for the enforcement of
the Act, and stipulates that the Board shall fprnish the Assistants office space
and stenographic service--but the law makes no provision for the payment of
the expenses incurred by the Assistants in the performance of their duties.
The 4,Sth Legislature, in the departmental appropriation bill passed
by it, listed these six Ass,istants in the Liquor Board Appropriation. They
were employed and were subject to discharge by the Attorney General, ware
supervised and controlled by him, and were responsible to him and not to the
Liquor Board for the faithful and efficient discharge of their duties. These
Assistant Attorneys General were employees of the Attorney General, not of
the Texas Liquor Control Board. Yet, under this state of facts, the expense
incurred by these Ass.istants in prosecuting and defending suits’ for the Liquor
Control Board were borne out of the Liquor Board appropriations, which was,
we think, in accordance with the legislative intention. This was not because
the Assistants wer~e employees of the Liquor Board, but because the expenses
wara incurred directly and immediately in connection with the administration
and enforcement of the liquor laws, which was the primary responsibility of
Lthe Liquor Board, and to defray the expense of which the Liquor Board appro-
priation was provided by the Legislature.
The same situation existed with reference to the Unemployment Com-
pensation Commission.
Hon. George H. Sheppard, Page 5, O-2258
The last Legislature listed all Assistant Attorneys General in
.the Attorney General’s appropriation, their salaries to be paid out of
the General Fund. This was done in order to enable the Attorney General
to make use of the services of Assistants s.erving the Liquor Board, the
Unemployment Compensation Commission, and other departments operat-
ing out of special funds, for-the rendition of other services ,when deemed
necessary or expedient. yet without making the special funds, inequitably,
bear all the salary cost when all of tbe Assistants’ time was ,not devoted
to the work of that department.
No question of supplementing an appropriation ~is’,~involved~. There
are simply two appropriations available for defraying ,the same expenditure.
The one,,may, only be expended with the approval of ,the Attorney General;
the other only with the approval of the department head. The ,appropriation
to the Attorney General is available for law enforc,emeut generally; the ap-
propriation to the department is available only forthe administration and
enforcement of the particular laws committed to the jurisdiction of that de-
partment, An expenditures from the one does not supplement the other.
The paragraph styled “Transfers from Special~Funds”, appearing
in the general rider to the departmental appropriation bill passed by the
46th Legislature, does not purport to announc~e a contrary r.ule. ‘The purpose
of such rider is to require reimbursement out of the special funds to the gen-
eral fund for the cos.ts of legal services and law:enforcement work rendered
by the Attorney General to the department financed out ~of the special fund,
where such c~osts have been borne by the appropriation to the Attorney General
from the General Fund. The ,language does not evince a’purpose to require
that all the costs of legal services and law enforcement must be borne by the
appropriation to the Attorney General out of the GeneraJ’Fund.
Briefly stated, the situation is this: The appropriation to the Attor-
ney General is for law enforcement generally; the appropriation to the de-
partment is for administration and enforcement of a particular law or laws.
The appropriation to the Attorney General may be expende.d only by and under
his authority; the appropriation to the other department~may be expended only
by and under the authority of that department’s head. Each appropriation com-
plements, but does not supplement, the other.
We have undertaken an expression of our views upon this question
with some hesitancy, because it may appear to some that we are sitting in
Hon. George H. Sheppard, Page 6, O-2258
judgment upon a matter of interest to this department. The interest, how-
ever, is more~apparent than real, si.nce our holding does not place funds ap-
propriated to another department under the jurisdiction of this department,
but’only’ permits such funds to be expended upon the approval of such other
department. In any event,‘we are required by law to answer your question
to the best of our ability. In purwance to this mandate, we have done so.
The’ foregoing represents the considered opinion of this department.
Yours very truly
ATTORNEY GENERALOF TEXAS
BY
Assistant
RWF:PBP ”
ATTORNEY GENERAL OF TEXAS
THIS OPINION
CONSIDERED AND
APPROVED IN
LIMITED
CONFERENCE.