Case Information

^[7] *1 Boa. Claud Gllmer Caamlttee on Appropriatlomr

House of Representatives

Austin, Texas

Opinion Ro. V-208 Reo Construction OS Section 4ga Article Constitution III State Dear Sir:

Your letter request reads, In part, as follows :

“The Approprlatfon Committee of the House has directed as to the procedure contemplated and re- the followlng fnqulry

quired under Section 49a of Artfcle of the State Constitution, the amend-

ment of which requfren the Stat4 to

operate on a oash basis.

“Section 49a requires the State Comptroller to Purnfeh each regular SesSlOn of the Legislature with a statement of the

revenues to be available during the coming

and from whlah appropriations for blenniu%, operatl n of State government will be made. of the SeOtlOn

“The second.pmagraph four sentences, numbered SOr oontalnn reference ‘1,’ ‘2,’ ‘3,’ and ‘4’ and read-

lng a8 follows:

“Sentence ‘1. I ‘Prom and after January 1 1945, save la the case of emerge& and Imperative public necessity and with a four-fifths vote of the total meaberahlp of each Home, no apgropriatlon in excess or the aash and mtlalpated revenue of the fund8 from which auoh aQQrOPrla- tlon Is to be made shall be valid.

Hon. Claud Qllmer - Page 2--v-208

“Sentence ‘2.’ ‘From and after January 1. 1945. no bill contalnina an app~op~lak% shall be conelder;d as passed or be sent to the Qovernor for consideration until and unlees the Comptroller of Public Accounts endorses his certificate thereon showing that the amount appropriated Is within the amount estimated to be In the affected funds. available “Sentence ‘3 I When the Coap- troller finds k amronriatlon bill exceada the estim&d kevenne.. he shall, endorse such.findiag thereon and return: to the House in which seme originated.

both th;‘Roure of R&preeentatlves and the Senate and the necessary steps shall be.taken appropriation to bring such to within the revenue, either by providing additional revenue or reducing the appropriation.’ “If sentence ‘1’ had followed sea- tence ‘4,’ and expressly provided that the orlglnat- lng Rouse would have a further alternative of agala phsrlmg the appropriation bill, knowing and lmtemd- lag that same would become a deficit, the proee&ure would be clear.

“It is considered that a full construc- should be obtained so tion of the quoted section that both Houses of the Legislature, the Conp-

troller, ,amd the Qovertror will be In ajpeeaent amd that will be in position to oontomplate the action .takem when an approprlatlom bill exceeds available Femme, and 80 that all wfll understand the posl- tion that such a bill will occupy.

“For the purpose of clarifyfng the ln- formation desired, we aentlon the following ques- tions I *3 - Page 3--?T-208

Haa. Claud oilaer

“A. Wh# an appmprfatim _ .~. with an '4mwemcog ana mperatav4 public neeessltyO 4lauae In It, Is paased ln tljr uwrral mamaer of firrt uonaa,lrfsratfcrr;r, plvd receIv48 a r44ord vote of 4,&h or more 6f th4 &&al mhCber@hfp of scab Hotme, will it then bimQ*$ effeetir4 without re- tura for ;n;logai&4mation ami% In t31a light of l.nflut.ioa froa the camp- troller that mme will ordats a de- flelt? aeatsncs ‘1 D aa gem- “R e Xew 4atr

ten44 ‘4’ be mamtrued 40 that aa4 will Itat b8 lx&d ln oaaniot BoF o&e to 1lw.t the ethw?

"C. Will aerutems '1' ke cmaU4a& a &rtlaar alt4matlve 4” re that th4 k&r- lature wauid ,ret be controlled bf a vote wf%hti the requirement6 of aeateaw pl,g taken by both Hou8es without the knowledge that such bill would create a State defM%tP "D. IA the ereat It 1s cok%#fdered that t8o ~~Mrlea8 apply aM csatrpl of senteme '1' 08 the first ooze- OS a DIP *p tm weuld rrr4h 8ideratfea a4tfon preclude cons~deratfaa br t&4 Comptroller fn accordance rlth se* rentewe ‘3OP tame W m Will a btatene#it aarQ vrprars4d &ding by the Lepglrlaturo Of &m ~em4Cgenc.y and fmr*tf*a gublfa a*- cesaftyO br 4ufffafeM ta Justify tie requfpement of sdslrtencre *Xpa 4P Wlltf It be n4cerrarg to recite BFa4iff.c; faatm anl aecessfteur, eiroumtames; and if aoS what *iltm Pequir4ments will ocmtrolt IA tbfs swpitm8P If It is consfdel?ed that an ap- PiatiQn bill, found to create a clt, will be returned for subsequent *4 Hon. Claud Qllmer + Page 4--V-208 ,..

consideration In each House, what status will It occupy? Will It be considered as a new and an original bill? May the appropriation be re- duced by either House? Is the bill subject to amendment otherwise?

Could, for Illustration, a provision reciting ‘emergency and imperative public necessltj’ be added to the bill?

“0 D Dbes the requirement of ‘4/5tha vote of the total membership,of each House I mean I.20 or more affirmative votea in the House and or more afflrmatlve votes in the Seaat~e? “Thanking you to advise in reference to the above questions and such other lnforma-

tlon as you may consider necessary and of

advantage in ,connection with this subject. . .”

Section 4ga, Article Constitution of Texas, as adopted In election Ilovember 3, 1942 Is as fol- lows :

“It shall be the duty of the Comptroller of Public Accounts In advance of each Regular Session of the Legislature to prepare and submit to the Oovernor and to the Legislature upon Its convening a state- ment under oath showing fully the financial condition of the State Treasury at the close of the last fiscal period and an estimate of the probable receipts and Qlsburseaents for the then current fiscal year. There shall also be contained in said staterent an ItemI.- aed estimate of the anticipated revenue based on the laws then In e?fect that will be re- ceived by and fer the State from all s0u.rc48, showing the iund accounts to be credited during the suqeeedlng biennium and said state- ment shall contain such other lnfomnatlon as may be required by law. Supplemental state- ments shall be submltted’at any Special Ses- sion of the Legislature and at such other tfaes as may be necessary to show probable ahanges D

“From and after January 1, 1945, save in the case of emergency and Imperative *5 .

Hon. Claud Gilmer - page 5--v-208

public necessity and with a four-fifths

vote of the total membership of each House, no approprfatfon in excess of the cash

and anticipated revenue of the funds from

whfch such approprfatfon is to be made

shall be val%d. From and after Zanuary 1,

1945, no bfll contafnfng an appropriation

shall be considered as passed or be sent

to the Governor for consideration until

and unless the Comptroller of Publle Accounts endorses hfs certlflcate.thereon showing that the amount approprfated is within the amount estimated to be avaflable fn the affected

funds. When the Comptroller finds an appro- priation bill exceeds the estimated revenue he shall endorse such finding thereon and

return to the House in which ssme originated.

Such Information shall be fmmedfately made

khown to both the House of Representatives and the Senate and the necessary steps shall be taken to bring such appropriation to within

the revenue, efther by provfdfng additional

revenue OF reducing the approprfatfon.

"FOP the purpose of ffnancfng the otitstandfng obligations of the General Reve- ,nue Fund of the State and placing fts current accounts on a cash basis the Legfslature of the State of Texas fs hereby authorfzed to

provide for the issuance, sale, and retfrement Of serial bonds, equal fn prfncipal to the

total outstanding, valid, and approved ob- ations owing by said fund on September 1,

1 3, provided suoh bonds shall not draw *$ Wtcrest fn excess of two (2) per cent per

annum and shall mature within twenty (20)

years from date. Adopted election Nov. 3,

1943 * ”

The courts have not construed the provi-

siona-6f Sectfon 4ga, Artfole of our Constitution.

In Attorney General’s Opinion O-6497 we

hold, ‘“that in cases emergency and imperative public necea&itg the Legislature mayp by a four-fifths vote of the..tdtal membership of each House, pass a? appropriation in excess of cash and snticfpated revenue.

” a 0 . that a foup-fifths vote would not be evfdence that an emergency and *6 Hon. Claud Gllmer - Page 6-4-208

.: f an imperative public necessity existed.

Section 32, Article 3 deals with the

qu$stlon 'imperative public neCe6Sity'

In Suspending the rule requiring bills

to be read on three several daya, and'.

this sectlon,$rovides that this necessity

shall be atated in a preamble or In a body

of the bill.. Section 39, Article 3 deals

with the question of ‘emergency in pro-

viding for the time at which a bill shall

take effect, an emargency must be expressed and this section states that

In a Qre- amble or fn the body of the Act. It is

true that no such requirement Is contained

.,:in'Section 49a, but we think, in view of

the above mentioned sections of the Constl-

tutlon, the safe plan would be to state

the emergency and lmperatlve public necessity either In the preamble or in the body of the bill."

In our Opinion No. 0-6738a we~isald: "Section 4& of Article III Is what Is QOQUhrly ktlom as the 'pay as YOU

go' amendment to the Constitution of Texas

duly adopted In an election held November 3, I942. It Is generally understood, as is

manliest from the first paragraph of Section @a, not quoted, that the purpose of this

aniendment was to keep in approximate balance tM anticipated annual Income and expendi-

tures of the State of Texas, a very whole-

some purpose. Or stated in another way, the evil sought to be remedied was the approprla- ti,on and disbursement of moneys in excess of anticipated or actual Income. . . .

"Section &a clearly provides that bills containing appropriations must have been

referred to the Comptroller of Public AC- i counts and must contain his endorsement or

certificate thereon (which admittedly were

not done In this Casey showing that the amount appropriated Is within the amount estimated to -. be available in the affected funds, 'save In the case of emergency and imperative public necessity' and with a four-fifths vote of (1) *7 .

Hon. Claud Gi-lmer - Page 7--v-208

the total~membershl9 of (2) each House."

In giving you our opln?.on, we will not

attempt to answer your questions categorically, as we believe we can better clarify the matters inquired about by fllustratfons.

An appropriation bill passes both Houses

with a Toti-fffths vote of the total membership of each House. The amount approgrfated fs in excess of the cash and antfclpated reverie of the funds from which such ap- proprfatfon fs made. ‘The bill recites that an emer ency and fmperatfve publ$e neoessfty (stating what it Is 7 re- quires that this approprfation be made notwithstanding the fact that It exceeds the estimated revenue. This bill ,i, would,be considered passed, and If not vetoed, would be- come effectlvt. The .pr$loqs of said S$3on 49a you _I'* &Tnate as Sentetice Sentence ‘3 and Sentence .%.. would not be appllcabl~. _.., *..

The same appropriation bill .sontaining the emer.gcncy and fnq3eratlve public necessity clause (as out- lined above), Is passed,,by the Legislature by a vote of less than four-fifths of the total membership Of each house, or it ~asscs by,a four-fifth vote 0r the total member&i9 of each house but does not contain the emergency snd,:&s9eratfve public weessfty oPause (as outlined above).

This bill so tassed wouldike $ubgect to th$ provfsi~ns you Sentence @3 and %entence P;$pate as Sentenae ‘2 That 18, the Comptroller would find that the appro- priation bfll exceeds the estimated revenue and would en- dorse such finding on the bill and return ft to the House In which It originated and immedfately make such lnforma- tion known to both Houses. By the express language 0r that 9art of said section you designate as “Sentence ‘21n sueh bill would mot be consfdered as paesed. It fe not It would be subject to amendment as to either a new bill.

form OP .substawee. The Legfslature would then have three methods by whioh it could legally pass such appropriation that is, (1) the bfll could be bill,and make ft effectfvee, amended so as to include the emergency and imperative pub- lic necessity clause (as outlined above), if the bill as orfglnallg passed dfd not eontafn same, and then pass same by a four-fifths vote of each House, or (2) the kglslat~ure cou1.d amend the bill by reducing the appropriation so the amount would mot be fn exce6s of the eash and anticipated revenue of the funds from which the appropriation Is made, OP (3) the Legfslature could pass an additional revenue act that would fnorease the anticipated revenue to such extent that the amount so apppoprfated in the bfll would *8 Hon. Claud Gllmer - Page -- v-208 *

not exceed the cash and anticipated revenue of the funds from which such appropriation Is made.

The, above construction gives full forces

and effect to all the language employed In said section o? the Constitution and Is In accordance with the rule of construction announced by the Court In Cordova v.

State, Crlm. App. 212, 220; "In expounding a constltu- tlonal provision, ~such construction should'be employed as will prevent any clause, sentencez, or word from being superrluous, void or lnslgnlflcant. Furthermore, It harmonizes all ~rovlslons.

SUMMARY In order for a bill to be valid that makes sn appropriation In excess of

the cash and antlclbated revenue of the

funds mom which such appropriation Is to

be made, it must contain an emergency and

imperative public necessity Clause (Stating

the emergency and necessity that requires

tke appropriation notwithstanding It ex-

ceeds such cash and anticipated revenue),

and It must be passed by a four-fifth8 vote af the total membershlp of each House. If

a/pill that makes an 'appropriation In excess of'the cash and anticipated revenues is pass- ed with a less vote than four-firths of the tutal membership each House, or passes

with a vote or four-fifths of such member- ship but not containfng such emergency

clause, same should be returned by the Camp- troller, with a finding thereon that the ap- proprlatlon therein exceeds the cash and

anticipated revenue, to the House In which

It originated. It would then have the same status as though It had never been voted

upon, and would 1s~ subject to,amen&sent as to either form or substanae.

Yours vdrf truly

WVG:mnrc;bt ATTORHEYGENERtiOFTEULS

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