Case Information

*1 ORNEY GENERAL THE ~: OFTEXAS

Hohorabls Arthur B. Knickerbocker

The Adjutant General

Au8 tin, Texas

Dear Sir: Opinion Ro. O-6890

Rs: Authorit‘J of the Governor to 'grant daflciency ap- prop?iatlon for the pur- pose of paying Instruct- ore of the Texas State Guard.

Your request for opinion, vhlch has been coneidared most carefully by this departmoM, reads as follows:

"The Texas State Guard has been la operation alnce the paseagc of the Texas Defense Guard Act on February 10, 1941. During thin tiac, each

unit of the Texas State Guard hae condwted reek ly periods of training. Them training periods consisted olaes room, drill field, and field nanemer training, and necessitated considerable expense to each unit. This expanaa aaoumtsd to approxlmatev $225,000 per rear. Thle coat "a.8 borne by funde contributed to the amits by the

local, ait. and county govarmueats, and by'imdi- ridaal ooatrlbmtlone by the members thaael+es,

the Legislature the State of Taxaa having ap-

propriated oml~ $9,000 per year for thlL purpoas. War, looal oontrlbutiom the osaaatlon

Since to each unit hare been reduced to such an &tent that it is irposslble for mmny of these mnitm to oomtinlle.

"The fund made available to the Adjutant Den- oral's Departrent by the Leglrlature of ths‘State of Tsxar the conduction of schoola and traiaimg for the Texas State Guard 18 Appropriation

B37 the Adjutant General's Departrent, or Item lUo. 74, referred to om page 26, Supplement to

Dally and Pezmaneat Roume Jo-l, 49th Leglsla- ture, Regular Saaslom, dated June 1945, and vh'i'ch qsadm am follow:

Honorable Arthmr B. Knickerbocker, page 2, O-6890

“For trannportatlon, shelter, eubeimt- emce, training eappliee and tralmlag aids and equipsent, lnclndlng training litera- ture and all other in orgenlzlng expensea and maimtaining echoole, including exten- sion couraea and camps imatruction for enlisted zaem and officerr, either or both.

$9,000. ’ "The fumds provided for in the abore mentioned appropriation being inemfflciemt to carry om

the proper trainlag meceesary to maintain an adequate intern1 security force In the State of Texas,

the Governor has comeemted,to the dlverelon of

$50,000 of his Deficiency Allowance to the Adjmt-

ant Gemeral's Department the financing of

this traiaing.

'Each compamy and detachment of the Texae State Guard hae conducted, In the pant, am average

of three rohoole per month. Theae schools came

under three different classificiations: schools

for officere, schoola for nom-cogiseiomedbfflc-

ers, and schools for enlisted perommel in @morel.

Due to the redmction of contrlbations by local to the State Guard, and in order to em-

agencier able each unit to comtinne it will theme sehoole,

be necessary for the State Texas to pay a nomia-

al sum to the instructors comdmctingthese echoole,

from funds derived fror &ate momrcee. that would be grant- “The $50,000 deficiency

ed by the Governor to snpplement Item Ilo. E-7 The Adjutaat Gemerml's Department Appropriation,

would not be emfficlent to adequately cover thla

expertise. However, it will empplememt the smmll

aronnt of fnmdm that the units will be able to ob-

tain from local l omrcee, and will allow theme'

schools to coatimne an-interrupted.

"We wleh to auhnit, for yomr opinion, the qmeetion aa to whether or mot this Departaeat say

make amah payments to the individual lmmtrnctora

of each malt, from the remaining fmmde In Appro-

priation Ilo. E-7 of the Adjutant General'e Depart- until these funds are exhausted, amd there-

meat,

after, uke emch paymemte from the deficlsncy emp-

plement,approved for that pmrpoee."

. .

Honorable Arthur B. Knickerbocker, page 3, O-6890

Article III, Section 49, of the Couetitutlon Texas provides:

"Ho debt shall be created by or on behalf of the State, except to supply caeual deficiencies of reveuue, repeal Invasion, eupreee lnsurrec-

tioa, defend the State In war, or pay existing

debts; and the debt created to supply deficlen- ciee In the general revenue aball nmer exceed

in the aggregate at any one time two hundred

thousand dollars."

Articles rCj51 and 435la, Revised Civil Statutes, were passed pursuant to such constitutional provision, and read ae follows:

"All heads of departments, managers of St-ate institutions or other persons intrusted vith the power or duty of contracting for supplies, or in any manner pledging the credit of the State for any deficiency that may ariaa under their manage- ment or control, shall, at least thirty daye be- fore such deficiency shall occur, make out a

eworn eatbate of the amount neceeeary to cover euch deficiency until the meeting the next Lag- is lature . Such estimate shall be immediately filed with the Governor, who shall thereupon carefully exaaiue the came and approve or disapprove the

came in whole or In part. When such deficiency clain, or any part thereof, has been 80 approved by the Governor he shall indorae his approval

thereon, designatiog the amount and Item thereof approved and the item dieapproved, and file e.%me with the Comptroller; and the came shall be au- thority the Comptroller to draw his deficiency warrant for 80 much thereof as may be approved; but PO claim, or any part thereof, ehall be al- lowed or warrant.6 drawn therefor by the Comp-

troller, or paid by the Treaeurer, unleee such

estimate has been 80 approved and filed. If there is a deficienoy appropriation sufficient to met such claim, then a warrant shall be dram there- for and the same ehall be paid; but, if there is no such appropriation, or if such appropriation be 80 exhausted that it is not eufflcieut to pay euch deficiency claim, then a deficiency warrant ahall issue therefor; and such cleim shall remain un- paid until provision be made therefor at come

~93ion the Leglelature thereafter. The pro- vialour thle article shall not apply to fees

Honorable Arthur B. Knickerbocker, page 4, 0-6890

and dues for which the State may be liable under the general laws. When any injury or damage shall occur to any public property from flood, storm or any unavoidable cause, the estimate may be filed at once but met be approved by the Governor a8 provided in this article."

"It ohall be lawful for the Governor to ap- prove deficiency warrant8 am provided for in Ar- ticle 4351, Revised Civil Statuteo, 1925, to any amount, the aggregate which does not exceed

Two Hundred Thousand ($200,000.00) Dollaro, for

all purposes which he is permitted to approve such deflcienoy varrants. If any deficiency war- rants are approved above this amount, such war- rants are invalid and unredeemable by the State Treasurer. * ~",

It appeamthat 801&e doubt ao to the conetitutionality Article 4351was cast by Judge Hawkins in his ooucurring opinion in Terre11 v* Middleton, 108 Tex. 14, 191 S W. 1138. However, we believe that its validity has been clear4 established~as pointed out in Opinion Bo. o-2118, by the coneistent administrative practice for over thirty years under the views the majority of the Supreme Court that decided the Middleton case, (18 well am the implied eanction given the statute by the Court in Fort Worth Cavalry Club, Inc., v. Sheppard, 135 Tax. 339, 83 5. W. (26) 660.

"Casual deficiency" In thla connection was defined in said Opinion Bo. o-2118 aa au unforeseen and unexpected situation which develope unexpectedly and requiree the Immediate attention at a time when the Legislature, the usual authority, ie unable to act.

There can be no caenal deficiency of revenue8, such as we are considering here, except with remeet to those pur~oae8 for which the Legislature has made a e~eclfic appropriation. It is unquestioned.that the Legislature did not intend to confer upon the Governor authority to approve the issuance of deficiency warrants to flnanoe aoae operation which it had considered, or night have considered, during its eesalon, and failed or refused to appropriate money for. This point la apt4 illustrated by the Court of Civil Appeals in the Middleton caee, 18~3.W. 367, 372 (writ of error reinsed), where it said:

"The appropriation by the Legislature to pay for the articles, ured by the Governor vae made under the guise of covering a deficiency, and ap- pellant actually contends that Article 3 eection 49 of the Constitution, and article 4342, Re-

vised Statutes (now Article 4351), authorize the *5 Honorable Arthur B. Kulckerbocker, page 5, 0-6890

Legislmture to make provision for the pmyment of debts contracted by the Governor for provisions and other things purohased by him between Legim- latures . We understand that the rule is that a state oonatitutlon should be liberally constraed, in comtradistinctlon to a strict construction of the federal Constitution; but It in liberality coastNotion running roit when Itema purahaaed

for the table, automobile, hormem, and library

of the Governor can be ranked as "casual defl-

clenolee revenue', or 'to repel Invasion, en*-.

preoe insurrection, defend the State In tlme'of war or pay existing debts.' Bone of theme c6n- tlmgenoles had arisen, and, in regard to the last named, the etate had contracted no debt, and It vao not in existence. There were no casual defl- oienaies of revenue to pay for lwxurlee and nec- eeaariea for the household of the Governor, be- cause no attempt had been made to raise revshue .',' that purpose. lo provision had been made for ” it.....

The following formula warn stated la Opinion Ko. o-2118

to govern the iesua~s deficiency warrants:

Where the Legislature has mmde a specific appropriation for a purpoee and thereafter there arises a casual deficiency in the revenues thus appropriated, the Governor, upon proper applica- tion therefor by one clothed vith the power to

incur such Indebtedness on behalf of the State, may approve a claim for a deficiency varranyto

extend to the next seeelon of the Leglalatu& or to the beginning of the next fiscal year."

A careful reading of Item Eo. 74 of the appropria-

tion for th6~Adjutant General's Department reveala that 'the payment to an instructor is within its scope. There can be no question that such pay-

ment ie included with the phrase, "all other expenses in organizing and ralntainlng achoob."

It cammot be questioned that the deficiency In this approprla- tlom vae unforeseen and unexpected. At the time the Leglelature van in aeaeion, it could not have been foreeeen that hortilltles would terminate 80 moon thereafter, nor could it be anticipated that tire varioue city and ooumty gorelPmentm would cease their oomtributione to the unite the Texas State Guard at thle tire.

Article 4351, in defining the offioere or agenta the State who *6 Honorable Arthur B. Knickerbocker, page 6, 0-6890

are authorized to create debts on behalf of the State, refere to "all heads of departmemte, manager0 of State lmmitutione or other persons intrusted with the power or duty contreating for eupplles, or In any lcLnner pledging the credit the State any deficiency that mmy ariee under their management or control.* The Adjutant General is rnch an officer. Artlole 5787*

Therefore, it is the opinion of this Department that the Adjutent General ray make paymente to the individual immtrnctore eaoh unit from the balance rwinlmg in Item lo. 74 (referred to by you am Appropriation Ilo. E-7). It is the further opinion this department that the Governor, upon proper and timely filing of an estimate am provided in Article 4351, may approve m claim for a deficiency warrant to extend to the meeting of the next Legislature.

Very truly yours, ATTORBRY GERERAL OF TEXAS BY Arthur L. Moller Assistant AIM:db

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