Untitled Texas Attorney General Opinion

HonorableGso . if.Cox, M.D. State Health Officer Austin, Texas Dear Sir: Opinion No. O-4224 Re: Whether the balance in Vital Statistics Fund may be devoted to the construction of a build- ing for the use of the Bureau of Vital Statistics. In your letter of November 24th you explain the recent great in- crease in the work of the Bureau of Vital Statistics which makes necessary enlarged facilities for carrying on the work of the Bureau and storing its records. After setting out the applicable provisions of the current appro- riation for the Bureau of Vital Statistics contained in Senate Bill R o. 423, Regular Session, 47th Legislature and in the general sta- tutes pertaining to the Bureau, you request our opinion on the fol- lowing question: 'We shall ask you to advise us whether the above funds, to- gether with any additions thereto deposited during the biennium beginning September 1, 1941, can be used in constructing a building for offices and working space for the employees and. personnel of the Bureau ofVita Statistics, and a fire proof vault for the protection and safe preservation of the records and files of that Bureau, as is provided~for under Article 4477, Rule 35a, R.C.S.rr We quote thenprovisions of the gene~rallaw and curr'entappropria- tion bill and the existing facts applicable to this problem, as set out in your letter: "Rule 35a of Article 4477, R.C.S. State of Texas, in part reads as follows: 'The Board of Control shall provide suitable offices for the Bureau of Vital Statistics in the State Cap- itol or in other suitable buildings at Austin which shall be properly equipped with fire proof vault and filing cases for the permanent and safe preservation of.all records made and returned under this Act.'

Honorable Ceo. Ii.Cox, M.D., page 2 O-4224

"Senate Bill 423, Regular Session, 47th Legislature, Sections ti0to 97, dppropriated various sums for salaries for employees of the Bureau of Vital Statistics, and in addition thereto appropriated certain fees as follows: 'Subject to the limita- tions appearing at the end of this Act all fees received under the provisions of Article 4477, Rule 54a and deposited to the Vital Statistics Fund are hereby appropriated for each year of the biennutnbeginning September 1, 1941, for the uses and purposes prescribed by the Above Act, and any amenbents there- to, including salaries, maintenance, travel and contingent expense. This appropriation shall be in addition to the item- ized appropriation herein made for the Bureau of Vital Statis- tics.' "Rule 54a of Article 4477 R.C.S. reads in part as follows: "And the State Registrar 1Registrar of Vital Statistics) shall keep a true and correct account of all fees by bin:received un- der these provisions, and turn the sane over to the State Treasurer at the close of each month,.and all such fees shall be kept by the State Treasurer in a special and separate fund to be known as the "Vital Statistics Fund", and the amount so deposited in this fund may be used for defraying expenses in- curred in the enforcement and operation of this Act.' "For your information may we point our tha~tthe Bureau of Vital Statistics has no.inspectors or field workers who administer or enforce the Vital Statistics Law in anv manner whatsoever. The entire enforcement and operation of this Act is carried on through the office personnel and the enforcement and operation consists of properly checking records, filing saine,and seeing that these records are preserved, their chief problem of en- forcement being the storing of these records in places where they are not subject to fire hazards, loss and theft. *As of November 21, 1941, we are advised by the State Treasurer that the Vital Statistics Fund has a balance of $30,251.34. The collections of fees as averaged for the ty:relve months end- ing August 21, 1941, are $1,912.00 per month. The expendi- ture of the above balance and a portion of the monthly income from fees would not reduce the efficiency of the Bureau of Vital Statistics." The answer to your question turns upon this point: whether the pro- viso in the appropriation bill, "all fees received under the pro- visions of Article 4477, Rule 54a, Andydeposited to the Vital Sta- tixtics Fund sre hereby appropriated...for the uses and :?urposes prescribed by the above Act, and any amendments thereto, including salaries, naintenance, tr;;veland contingent expense" may be con- strued so as to authorize the Bureau of Vital Statistics to devote the balance of $30,251.34 in its special fund, and subsequent ad- ditions thereto, to the construction of a building for use of the

Honorable Geo. W. Cox, M.D., page 3 O-4224

Bureau, in the absence of an express legislative sp-i>ropriation for such purpose We think it clearly may not be so construed. As said by the Austin Court of Civil Appeals in State v. Haldeman, 163 S.W. 1020, (writ of error refused) at page 1022: " ...The Legislature might authorize commissioners to contract for the erection of a public building of such a character and at such cost as to them might seem best, but'such a proceed- ing would, to say the least of it, be unwise, and such has not been the usual,course with reference to public buildings in Texas. It is well known that it is the custom with Legis- latures to appoint committees to investigate the needs of public institutions, to hear evidence and visit and inspect such institutions, and to pass appropriation bills for definite amounts for the support, maintenance, and erection of buila- ings therefor....." In the Haldeman case the court held that the Legislature, having appropriated $47,000 for the erection of buildings at the State Lunatic Asylum, any additional sum expended thereon was unauthorized, and was not supported by pre-existing law as required by Article III, Section 44, of the Texas Constitution, so that no subsequent appropriation could be made to pay for the excess cost of the build- ings above the amount originally appropriated. The court refused to recognize any authority, implied or otherwise, in the Board of Directors to authorize any enlargement of the buildings as authorized by the Legislature. Said the court: "We do not think by the passage of the appropriation bill above referred to, wherein the specific amount of $47,500 was appropriated for the buildings for the lunatic asylum, the Legislature intended to grant the directors of said institu- tion discretion to incur liability on the part of the state for more than this amount......n To the same effect is the holding in Nichols v. State, 32 S.X. 452. See also Ft. Worth Calvary Club v. Sheppard, $3 S.W. (2d) 660. Article VIII, Section 6, of the Constitution of Texas, provides: "No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law...f1';ledo not believe that the language of the appropriation to the Bureau of Vital Statistics, which reads:",.-for the uses and purposes prescribed by the above Act ...including salaries, maintenance, travel 2nd contigent expense" can be construed as a "specific appropriation" for the construc- tion of a public building as that term is used in Article VIII, Section 6. Pickle v. Finley, 91 Tex. 484, 44 S.W. 480; National Biscuit Co. v. State, 134 Tex. 293, 135 S.W. (2d) 687; County of Dallas v. McCombs, 135 Tex. 272, 140 S.W. (2d) 1109.

Honorable Geo. W. Cox, M.D., Page 4 O-4224

We have no doubt of the urgent necessity for enlarged and permanent quarters to house the growing and important functions of the Bu- reau of Vital Statistics, but we are of the opinion that it will require an express appropriation of A sum certain by the Legisla- ture for such specific purpose, either out of the moneys in the special "Vital Statistics Fund" or out of the general fund before any money may be withdrawn from the State Treasury for the purpose of construing the building about which you inquire. Yours very truly APPROVED DEC. 2, 1941 GROVER SELLERS ATTORNEY GENERAL OF TMAS FIRST ASSISTANT ATTORNEY GENERAL

BY Walter R. Koch WRK:lm:ml Assistant