Case Information

*1 OFFICE OF TNE ATTORNEY GENERAL OF ‘I’- AUBnN

Qourot%llucn A7ummwmmtau George H. Shepgard

Comptroller o? Pub110 Aooountr

Austin, Texas

Dear Slrr

OpInIon No. O-3830 Re: Transier 0r funds In Old Age AssIOtanoe FmdZ-

or your recent opinion

We are in reoelpt relative ,the txnsrer of certain funds irc;n the State’ Old Aaslstanoe Fund the Federal Old Assistsnae rshlch of Fublic Welfare has requested you to nake.

There are berore us twc letters the Depart- ment oi Publio Welfare, one dated July 26, 1941, the other dated August 15, 19&l, from which xe understand iaots to be as tallows:

Sine6 July 1, 1936, the Federal and State Govern- ments have heen oooperating in making payments ior old age aasistanoe on an equal basis, I. e., the Federal Government has matched State to pensioners dollar iOr dollar. The-aUnIstration Of the ?edbrrdl Soolal SOOUrlty Act IO vested In the Soolal Seourlty Board whloh has made various rules and regulations and Is oharged with the duty oi deter- mining the Federal monies are expended dlsttlbuted in aooordanoe Soolal Seourfty Aot. Eaoh quarter the Federal Oovernment has forwarded It6 pro rata part of the penalon money the State Agenoy, based upon estlaates, State agenoy eaoh month has made the aotual dIsbursemoMs tc Individuals after determinine their ellulbIlIt~ .aud needs. From time time the soolal Seo&ty Board Kas made audits the payments to various reoiplents, and at pre- sent audits have been oompleted ooverlng the periods 1936, 1937, 1940. 1938, 1939,

Honorable Caorga R. Sheppard,

At the completiBn of each audit period the Social Security Board took exceptions to various by the State agency and presented aartaln schedules ot Vlscal and allglbllity axoapt ions*. After alaarance material had bean submitted by the State agency justlticatlon ot the payments, appeal perfected to the Social Security Board, said Board rlnally disallowed and refused to aoncur In payments made to certain reclpiente from July 1, 1936, to D?oember 31, 1939, In tha total arm or $23 662.87. In the latter or July 26, 194l, mentioned above, It 1s stated that *the amounts heretofore shown as adjustments have bean Oarefulg checked and agency la In agreement with the Sooial Gaourity Board Federal Old AaaIstanca Fund should be reimbursed due the adjustments as shown ior the various periods In accordance the audits submitted by the Federal Auditors.”

The State Department of Fubllo Vialfare has tharatora requested you to #23,662.87 tron the State Old Age Assistance ?Ud the Federal Old~Age Assistance Fund In setl~fnctlon of this clslm by the Social Security BoaQd. You our advice as to whether you are authorized to make tranarer.

The Public :‘1alfare Aat,. enacted by the 46th Legla- lature oreated the “State Departmeht of Fubllc Gelfaran, which among other things wss organized to administer asalstanaa The duties of t5e Texas Old Aaslstanoa tee needy aged, Cammlaslon, together with its funds, ware trenstarred to such This act was amended by the WPubllo nawlg created Dapartnen5. walrare Act or 1941*, 17th Leglalqtura, a+ractIve July 2, 194l md in general continued the same sdalnistratlve arganization as that provided by the Act of 1939.

Under Section I of the “Fubli& ‘:‘altare Act of 191,1w, the Ptate Departcent of Public :7elf’are is charged with admlniatratlon of the walrara activltlas of the State as pro- vided therein, it la provided II shall WadmInIater aaaiatanoa the needy aged.” Seotion 6 oi aaid Aot daalgnataa as the State agenoy to oooperata with ths Federal Government In the administration oi the provision8 Soolal Security Aot, Including the payment of asslstan~ to the needy aged.

t George H. Shappa$d, page 3 Saotlona 26 and 27 bt the lot of 19&l read a8 rollowa t

*sea. All asslatanoa rovldad for under the tams oi thla Aot ahall ba pa B d by vouohara or warrants drawn by theState Comptroller on the proper aooounts of a *State Department of Dub110 Welrara Fund*; ror the purpose of parnittlng the State Comptrollerto properly draw and Issue auoh vouohars or warrants, StateDapartment of Pub110 Welrara shall furnish the Comp- twollar with a list of or roll oi those entitled to asalat- to whloh anoa iron raolplant time time, together with the amount each la entitled. When auah vowhan or warrants have barn drawn they shall be delivered to the haoutlva Director of the State Dapartnent of Fubllo Welfare, who turn shall suparvlaa the delivery of same to the parsons entitled thereto.

aSac. 27. (1) For tha Ruwposes of oarrylng out Fund, provlalona of this Act, the Old Age Asslatanoa

3lind Assistance Fund, and the Children Aaalstanoe aa provided for in HoLae Bill No. 8, Aota of tine Forty- seventh Legislature, Regular Seaaion are hereby made separate aooounts ‘State Department of Publlo Welfare Fund* as oraated by this aot. Provided, all moneys In the saparate aooounts at tia State Dapart- mentor Pub110 Welfare Bund shall be expanded only the purposes of oarrylng out the provlalons of this Act, and for the purposes for which said separate acoounta were created or appropriated.

e(2) The State Treasurer 18 hereby daalgnatad aa the opstodlan of any and all money whloh may be ra- oelvad by th? State of Texas (whloh the State Dapartmant of public Welfare la authorized to admlnlater), from any appr>prlatlons nreda by the Congress U the United States, ror the purpose of cooperating the several provlmlons ’ of the Federal Social Security Aot, all money raoaItad

from any other source; and the State Treasurer la ha?aby authorized to reoelve auoh money, pay It Into the propar, fund the proper aooount the Caneral Fund of the State Treasury, provide the proper ouatody thereof, ~\, and to make dlsbursaments therefrom upon the order of tha State Department and upon warrant of the State Comptroller !a, of Public Aocounta.’ *4 Cecrga B. Sheppard,

Tha Padoral money mentioned in 27(Z), quoted above la deposited with the State TraaaureS by vlrtua or an Rot or Congress. Sad. &2 U.S.C.A. ( ) O)Ol., The Stats monies in the=sparata aooouuta designated as the Old Aaalatanoa of the State ~apartmant of Pub110 %aliara Fund era derived tsxea levidd and oolleotad bp tha Stats or iron Texas and allooatad apaolal fund In the State Treasury or by appropriation by the Laglalatura iron another fund ln the treasury. For example, sea House Bill No.8, Aota l,7th Legislature, Regular Session. We assume the "State Old Age Aaaoolatlon whloh are not mantlonad Fund* snd tha RFederal Old Age Aaaistanoa Fund-,

In the lagIslatl~a act, are separate aooounta In the Old Aaalatanoa Fund propr, whloh you have set up to iaollltata the kaaplng Of adequate records and a proper aooountlng between the Federal State Governments In their oontrlbutlona to such fund.

It la stated In letter of August lgth, aooompany- Ing that the quarterly payments had6 by the Soolal Saourlty Board are only tentative basis, are not final to the State, and are aubjeot to review by the Federal For the purpose oainlon we ~111 eaa&‘oe authoritlaa. the correctness of t?ia atstenent and ~111 aaauze further thati such runda are deposited in trust *tit& tie State agency to be distributed as directed by the Sootal Security Board, exceptions of said Board ror the pa8lods audited were well taken, and that the Federal CoverlLaent has a.vslld claim torrelmburse- ment . We express no opinion with reference to these matters, however.

hrtlola VIII, Seotlon 6, of the Texas Constitution rexda in part as iollowsr

wNo money shall be drqwn rromthe Treasury but In purauanoe shall of spaclrlo appropriations made by law; nor

any appropriation of money be made #or a longer term than two years, .l,. .I)

The Board has not requested that you draw a werrant payable -Oovernme.nt and thua wlthdraw this money treasury ln pamant olala, but Instead has requested the Federal Govarnaaatqa aooount the Old A&a Aaalatanoa Fund be oradltad with the ano,-nt of the olalm oharged against the State aooount in aatlaiaotlon of such ola4.m. Any dlf~arsnoa between the above twc situations would *5 .

Honorable George ?I.’ Sheppard,

srem to be one of form and not of substanoe. Thw whole basis and purpose of this proposed of funds Is it) <pay or discharge the olaim amde by the Sooial Seourity Board against the State, and&though immediate action may not be one of withdrawal from the treaeury, that ir neoessarllp its ultimate result and purpose. In our opinion the payment of this alaim and withdrawal of money from treasury 16r purpose may not be done by lndlrectlon in the absented appro-

riate legislative authorization. MaCombs v. Dallas County, T.C.A.) 136 S. W, (26) 975.0 v

It is also a well established principle of law in this jurisdlotlon that Department, suah aa the State Depart- ment of Public Welfare, w&lch is a creature of the statute has only authority &a may be delegated it by the Legislature, expaeesly or by neoesaary impllaatlon. either

We find nothing in the PublioWelfare Act of 194l which would authorize aotion, but on the contrary it direots the State money in the Old Age Assistance Fund be used furnish ass!stanoe to old persons who satisfy requlreaents provided in: said aot.

The ourrent appropriation of Publla Welfafr, (S.B. No. 423, Aats f,7th Lgg., Regular Session) Old Asslstanoe Division, out of tk Old Asslstanoe after listing various administrative expendas, provides:

“All lnoomer allooated transferred Old Age Assistmoe by H. B. NO. 8, Aots of the 47th Legisla- ture, Regular Session, or other revenue laws, the pur- pOS0 of providing and administering old age assistance is hereby appropriated for eaoh of fisoal years ending August 31, 1942, and August 31, 19l,3, tothe State Department o? Pub110 Welfare for old age assistanoe

salariee, muipment, supplies. travel malntenanoe. ?nd aon- tinKent expenses neoesaary the extenplon said old& assistanoo, . . .I (Emphasis Sansa)

In our opinion the above appropriation is not euffioient to author184 the payment of claim whioh has aoaumulated over a period of years since July 1, 1936. oh odly aontezplates the current payment of old age assistanoe to needy reolpients and adminlstratire expenses in connection therewith, This oon- oluslon Is supported by Artlole XX, Seation 2(4) of If. B. MO. 8, ;taayded by 8. B. No. 190, Aota &7th Leg,, Regular Session, whio

:

Honorlblr Goorgr H. Sheppard, Paga 6

"(4) After the above allooatlon and payments have been made from ruah Olearanoe Fund, there rh8ll be paId therefrom into the Old-Age Assistanoe Fund on the first of eaoh month, 8uoh aurn, whlah, taken with other 8ums paid Into ruah Old-Age A88lstanoe Fund by virtue of othar law8 still In foroe will equal total o? One Million Seven Hundred Fifty *housand ($1,950,000.00) Dollarr, ad 8U8h 8UlE 18 hereby appropriated the'U8e by law for 8uoh Old-Age Asri8tanoe Fund. provided Should auoh payment8 thr Old-Age A88irtanoe by virtue iaSb of other lavir exored One Million Saven Hundrrd Fifty Thou8and ()1,750,000.00) DOllar8, In any one month, then not more than One Million Sersn Hundred FIity Thousand (#1,750,0OO.O0) Dollar8 o? 8uoh 8hall be ex- ar8istanoe pended for old-age In such month, and the in exOe88 thereof shallb5.tithheld until the remfalnbrr suooeeding month or months and be taken Into oonsldera- tion In allooatIng fund8 the Clearance Fund to the Old*Age Assistanoe and. the amonnt paid in from the Clehrance Fund into the Ol&kge Asslstsnae Fund 8hall be reduced scoordlcgly the end that a stationary sum of Ona “illion Seven Hundred Fifty Thousand ($1,750,000.00) Dollars per nohth'be avaiiable frcn State Funds for 016 age assistance; provided, however, the balance figoal veer ending August )1, 194l, the payments into ZlO-Age Assistance Fund shall be made In the same manner as provided above. However age we?t total paid fro3 all sources Into the 01 A 'Assistance Fund including the amount allocated to the 01 Assistance Fund from the Clearanoe Fund on the first day of eaah month as pro- vided above, does not amount to One Million Seven Hundred Fifty Thousand ($1,750,000.00) Dollars for each month after t&e ccfeotive date of this aat, then event, first revenue oolleoted and which ordinarily would be paid Into the General Revenue Fund of the State OS Texas after fIrat day of eaoh month shall be set aside, allocated, traneferred, oredited, and appropriated the Old-Age Assistanoe Fund to the extent and In rush sums a8 are neces- sary to provide One Million Seven Hundred FlSty Thousand Jm thr Old-Age A88istanos Fund ($1,750,000.00) Dollar8 for esoh month with the effeotlve date of thi8 Aot, lnolud- lng the month o? June, 1941, and through the month of AUgU8t, All laws in confllot with seotlon are hereby repealed the extent of suoh oonfliot only.* *7 .

. . George II. Sheppard, pago 7

It 18 our OpiniOn that your Department i8 not authorized to make the funds as requested by State Department of Publia Welfare. WS do llOt eX 1888 EUly opinion with reference the authority f leg datum to make an appropriation any other question whloh may arise in oonnectlon with this matter, it being unnecessary ta do so in answering the que-tlnn presented.

Yours very truly ATTORJXY G?Z?RAL OF TEXAS By # Cecil C. Cammaok Aeeistant ccc;A!m

Ok G.B.L.

4PmOvED Opinlor Com3l~tee BY B.W.B. Chairman