Untitled Texas Attorney General Opinion

Board of Water Engineers opinionlo. O-1392 Austin, Texas Re: Whether or not certainstudy Attentionof Mr. A. H. Dunlap to be made in connectionwith Red Bluff Water Power Control Districtconstitutes"State business"directlyconcerning State Board of Water Engineers; and, whether or not it will bs necessaryfor the Board to ob- tain an opinionfrom the Attor- ney Gsneralapprovingeach trip ma& outsideof the State of Texas in connectionwith such Gentlemen: study. We have your letterof the fifth of Septembercontainingtwo questionsto be answeredby this department. The facts given for our consideration are as follows: "Throughthe agenciesof the NationalResourcesCommittee, and the U. S. GeologicalSurvey, the U. S. Departmentof Agriculture, t:.eFederalReclamationBureau,and the U. S. Army Corps, in coopera- tion with the States of Texas end New Mexico,a detailedand scientific study and report is under way coveringthe water resourcesof the Pecos River and tributariesfrom the source of said River in New Mexico to its mouth in Texas. "Thisstudy and report covers: (a) Salinityof water and sourcesof inflowof salt. (b) Water resources--quantity and quality. (c) Dosses of water and means of prevention. [di pe of water and protectionof water supply. ources,quantityand developmentof groundwater. (g) Flood damage. (g) The consumationof a Compactbetweenthe States of Texas and New Mexico for the divisionof the waters of the Pecce River. (h) Study of development~offarm areas along the river valley by means of pumpingwater fromwells. (i) Rectificationof sub-irrigation of town of Pecos City Board of Water Bngineers,pega 2 (O-1352) causedby escapeof water from artesianwells. "The 46th LegislatureenactedS. B. Bo. 49, appropriatingthe sum of $30,000.00for the use of the Red Bluff Water Power Control District. These funds are being used, exclusively,for the purposeof payingTexas' part of the cost of making said study and report. However, it is contemplet@%thatpart, if not all, of the writer'stravelingax- pulses,and that of his assistantshall be paid from the appropriation made availableto the Stats Board of Water Engineers. 'The very nature of the work, requiresthat investigationsbe made in both Wew Mexico and Texas,requiringthose engaged in the study to go back and forth between these two States. To require the writer and his assistantto obtainan opinionfrom your Departmentcoveringeach trip into New Mexicowould be very inconvenient and aausc considerable delay in completingthe fieldwork." In connectionwith the above fact6, you ask two questions: (1) whether or not travelingexpensesincurredby a member, of the State Board of Water Engineersand an srsiatantoutsideof the boundarieeof Texas in connectionwith a joint study and report on the Pecoa River and tributaries,is for State businessdirectlyconcerning the State Board of Water Engineers; (2) "Whethersaid umber and his assistantwill be reQuired to obtainan opinionfrom your Departmentcoveringeach trip made out- side of Texas in connectionwith said study, under the provisionsof paragraph(c), of paragraphheaded 'TravelingExpenses'of'section2 of S. B.No. 421" Your first questiondividesitself into two parts, first, as to whether the trip contemplated by you is "statebusiness"and second,whether it "directlyconcernsthe State Board of Water Engineers." In our opinion,the businessproposedto be transactedby your member and an assistantas outlinedin your letter,is such businessas would naturallyarise out of the performanceof the public dutiesrecog- nized by the Constitutionof Texas,Article 59, Sec. (a),which provides that the control,storing,preservationand distributionof the State's storm and flood waters and the waters of its rivers and streams,for irrigation,power and all other useful purposes,are public rights and duties,and which authorizesthe Legislatureto pass such laws as are appropriatethereto. See, also, Article7466, R. C. S. of Texas, 1925. We find furthersupportfor the above conclusionin Senate Bill 49, Acts RegularSessionof the 46th Legislature,Sec. 4, which makes an appropriationto the particularprojectwhich you proposeto work on, %&I&L~, the Red Bluff Water Power ControlDistrict. Board of Water Engineers,page 3 (O-1392) It is our furtheropinionthat the businessproposedto be attendedto by your member and assistant"directlyconcernsthe State Board of Water Engineers"becausethe ~business"has to do with exer- cising the authorityand carryingout the duties,imposedupon said body by law. Articles 7472c, 7472d and 7537a,R. C. S. of Texas, 1925; Sec. 4, Senate Bill 49, Acts RegularSession,46th Legislature,supra. As we construeyour second question,what you irsptto know is whether, If on the presenttrip proposedto be made by your member and assistant,it is necessaryfor them to cross the State line more than once beforereturningto Austin, you will have to obtain the approval of the AttorneyGeneralprior to each particularcrossing,in order to satisfythe statutoryrequirementquotedhereunder. To answer this question,it is necessaryto construeSection 2 (cl, Expenses",SenateBill 427, Acts of the RegularSession, "Traveling 46th Legislature, which we~quotein part: "(c) No travelingexpensesshall be incurredby any employee of any of the departments,or other agenciesof theSovernment,out- side of the boundariesof the State of Texas, exceptfor State business directlyconcerninghis own departmentor agencyand no such expenses shall be paid from State appropriationsor out of any local or auxiliary funds by the State Comptrollerto an employeeof any agencyof the Govern- ment, until and unlessa writtenstatement,signedby the AttorneySen- eral, advisingthet the purposeof the proposedtrip, in his opinion,is for said State businesspurposes;which written opinionshell have been filed in advancewith the State Comptroller,and sigued duplicatethereof with the disbursingofficerof such respectiveagency of the Government." There are severalpossibleinterpretations of the above provi- sion as appliedto your statmentof facts. Did the Legislatureintend that a separateletterof approvalbe obtainedfrom the AttorneyGeneral each time the State line is crossedby a State employeetravelingon State expenses,where, as in your case, in making a survey,.itmay be necessaryto cross back and forth severaltimes;or, did it only intend that such a letterbe obtainedeach time an employeeleft Austin on a trip and that "trip"be construedto mean each round trip journeyfrom Austin;or, did it intendthat one letterfiledwith the State Comp- trollerbe sufficientfor an indefinitenumber of crossings,so long as the purposesof the crossingscome within the purposeof the partiou- lar trip. In our opinion,the latter interpretation is the proper one. To arrive at the legislature'sintent,as is necessaryin every case of construction, we must look not to the one word "tripw,but to the whole bill. In this instance,we need only look to the portionquoted. Evi- dently,all the'Legisl.ature intendedwas that no trip be made out of the State unless its purposebe determinedin advanceby the ~A&orneyGeneral, Roard of Water Engineers,page 4 (O-1392) to constitute"Statebusfness". The Legi+atore did not say In so many words that s sepa;ateapprovalshouldbe obtainedfor each individual trip and, In our opinion,to give it that construction, under the facts stated by you, would place a burden on the State Comptroller,the AttorneySeneraland the departmentaffected,not contemplatedby the Legislature. The Legislaturevestedno disaretionin the AttorneyGeneral or the Comptrolleras to how many tripe a departmentcould make, and properlyso. Neither of these two officerswould have authorityto pass on the proprietyor advisabilityof your making a trip so long ss you had the money in your appropriation end the purposeof the trip wss the transactionof State business. Then, once having obtainedthe op- inion of the AttorneySeneralthat the purposeof a proposedtrip was for "Statebusinesspurposes"and filed it with the Comptroller,it would be requiringuseless,repetitiouswork of all dephtimentsconcernedto submit the same identicalquestionwith regard to each Individual crossingmade during the courseof a particulartrip, as the answers would of necessity,be identioalwiththe one alreadyin the Comptroller's files. In other words, It Is the 'purpose'of the proposedtrip which the AttorneySeneralmust approve,and not Its proprietyor advisability, and once the Attorney Generalhas determinedthat said purpose is for "Statebusiness purposes",it is not necessary,.inour opinion,to again seek his opinionapprovingeach crossingof tha State l&Won that trip. In answer to your secondquestion,It is our opinionthat this letter of approvalIs sufficientauthority for crossing the State line, at State expense,as many firms as the ,study requireson this particular trip, for the purposesherednst-sted, and concerningthe Red Bluff Water Power ControlDistrict. This opinioncoversonly the questionof the necessityof ob- tainingthe AttorneySeneral'sapprovalof each crossingof the State line made during the courseof the proposed"trip?describedin your letter. We are not passingon the questionof the necessityof obtaining the approvalof the AttorneyGeneralfor subsequent"trips"from Austin, for the same purposeand in connectionwith the same project. Trustingthat this satisfactorily answersyour inquiry,we are Yours very truly ATTORkEYOENERALOF TEXAS By James Noel /s/ James Roe1 JN:E?&zbr Assistant AETmED SEP 11, 1939 /s/ GeraldC. Mann A!iTORNSY SRRRRALOPTEUS