Case Information
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OFI?ICE &F TEE &JTORXEY G%~ER& Ausm. TEXAS
PRICE DANIEL ‘&larch 13, 1.k ATTO- GENellAL
Bon. Claud Gllmer,~ggmap- *
Committee on A~roprletlons
HOIl~~~_._ .___ ,~+9tlves-~"
Austin, Te n8 Oplnlon No. v-84
Re: Constitutionality of 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 Introduced and Is now before the.Approprlatlon Commit- '.
tee of the Hq!ye. .; . .
'Thla bill Is en appropriation blll for !lncidental expenses1 only for membera i# the regular session. The Com- mittee dealres to'know what In your opln- 'ion can be included aa incidental expenses. . .
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 tg3 Is ai
follows : BY:
"H.B. Bo. 396 ABISJ: , TO BE RNTITLSD
'> *2 Hon. Claud Gllmer, Page 2 -No. V-84
“AH ACT amMng an appropriation of the
sua.of Three Hundred Thousand
Dollars ()3OO;COO), ao much thereof es may be necessary, out of any funds la the State Treasury not otherwise eppro- prlated, to pay incidental ex- penses OS the membera of the ~Regular Session of the Fiftieth Legislature, such expenses not to exceed Ten Dollars ($10.00) per day per member: provldlng ?or ce$tificaties to the COUID- avail- troller; making reoords 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 otherwise appropriated, the sum of Three Hundred Thousarrd-Dollars ($300,000),'~0$ sb much thereof aa may be necesssry, to pay incidental expenses of the members of the Regular Session of the Fiftieth Legislature such expenses not to exceed Ten Dollara ($10.00) per day per member, . '.
"Section 2.. The certlfl~ate of 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 Piembers of the Regular ?eaalon of the Fiftieth Legisle- ture. ...
"Section 3. Providing, however, that - a record of allmoneys appropriated in this ,Blll shall 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 *3 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 appropriation bill for lncl-
dental'expense only for lpembers of the Regular Session.
Section 44 or Article III of the Conitltutlon is 98 followst
"The Legislature shall provide by law
for the cotip&nsatlon of 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 ,servlCe ahall'hsve been performed eontract entered into, for the performance of the same; nor grant, by appropriation or
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.for by 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 appropriation of any monl68 whatsoever froip the State Treasury is. fundamentel. .Thls eaaentla1 pre-existing law to authorl~ze the approprletlon in the present $natance consists in the'Constltutlon itself, creating t&e Legislature, and requiring it to function a8 a law-wklng brench of the Govern- ment . This by neceisery lmpllcatlon authorizes the payment from the Treasury.of all expenses, whether called "contln- gent? or "IncIdental" or by whatsoever name, that are neceai sbry to etibie the Legislature to perform ltfi constitutions1 duties. What perticulsr 6xpenses'come within the amblt of that implied power cannot be stated in words ~of finality.
It undoubtedly would lticlude such things as poetage, statlon- ery,~ pages, printlag, and the like necessltles~ of the Legls- lature. This haa been the uniformly accepted construction of *4 434
Hon. Claud Gilmer, Page 4 - Ro. V-84
the Conatltutlon by all dep3rtments concerned since the State's exlstenoe.
We under&and what is cixnmonly known as the ap- propriation for "contingent expenses" Is designed to cove] and is amply sufficient to cover all such items as above indicated. Whether or not a particular item of expense 1: Properly payable out .of such contingent appropriation la an lndlvldual inquiry 88 to each such ols.lm. Those that are properly classed aa such incidental or contingent ex- penses are paMand those that sre not tb be so classed are not psld.
'The wtter of per diem to the members of the Leglslst~ la, of course, conolusivel determined by the Constitution itself (Art. III, Sec. 249. Likewise, the item of trsvel expense la conoluslvely fixed by the same Section. Of course House Bill 396 does not contemplate supplementing members per diem, or travel allowance above that Of Section 24, 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.contemplate the psyment of any claim of any member, for any sum, for any expense, that is author- ized by any pre-existing law 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 hypothetical question is to whether.or not +blil which sets a maximum expense sllow- ante to each member without regard to the-nature and s- mount of expense, we beg to advise such a bill would be unconstitutional as a gratuity to the ~lndlvldual members aocording as the items claimed constituted personal busl- ness of the respective members. Moreover, tkere would be no pre-existing law, 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.he want of a pre- .exlstlng law therefor. .(Constltutlon, Art. III, Sec. 44).
.!,..
I *5 -. Page 5 - no. v-84
Hon. Claud Gllmer, (2) ~A11 expenses necessary to the func- tlonlng of the Legislature wy be lawfully pald,from the State Treasury under the neq- esaary lmpllcatlon of the Constitution lt- aelf, whether such expenses be denominated "incidental!' or "contingent".
(3) A bill appropriating a wxlmum ex- pens6 ellowance to eac.h member 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-existing law", (Constitution, Art. III, Sec. 44), and llke- wise because of a violation of the Constltu- tlon as 8 gratuity to the individual members accordlng~as the claims were for personal
buslnesa of the respective members. (Constl- tution, Art. III, Sec. 44).
- . Yours very truly
ATTORNEXGRliWfALOFTRXAS BY
.' OS/acm/lh
Approved:Oplnlon Committee 02, Chairman
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