Jessen Associates, Inc. v. Bullock

• Decision Date: 17 December 1975
• Docket Number: No. B--5577,B--5577
• Citation: 531 S.W.2d 593
• Parties: JESSEN ASSOCIATES, INC., Relator, v. Bob BULLOCK, Comptroller of Public Accounts, Respondent.
• Court: Texas Supreme Court

Page 593

531 S.W.2d 593

JESSEN ASSOCIATES, INC., Relator, v. Bob BULLOCK, Comptroller of Public Accounts, Respondent.

No. B--5577.

Supreme Court of Texas.

Dec. 17, 1975.

Rehearing Denied Jan. 21, 1976.

Baker & Botts, Thomas M. Phillips, Stan McLelland and Robert P. Wright, Houston, for relator.

John L. Hill, Atty. Gen., C. Robert Heath, Asst. Atty. Gen., Austin, for respondent.

GREENHILL, Justice.

This suit is an original petition for writ of mandamus to compel the Respondent Bob Bullock, Comptroller of Public Accounts, to issue a warrant on the State Treasury for $2,590.25 for architectural services performed by Relator, Jessen Associates, Inc., for The University of Texas at Austin.

It is our conclusion that the warrant should be issued. In reaching this conclusion, we hold that a rider to the latest General Appropriations Act ¹ was not subject to the veto of the Governor. The Governor has the power to veto an entire appropriations bill; but his power to veto part of an appropriations bill is limited to vetoing 'items of appropriation.' This rider, authorizing the construction of certain enumerated projects without the consent of the College Coordinating Board, was not intended by the Legislature to appropriate funds, and therefore was not an 'item of appropriation' which was subject to veto apart from the remainder of the bill. We also hold that the rider did not violate the constitutional requirement that bills contain no more than one subject, since the rider related to, and was germane to, the subject of the General Appropriations Act. The reasons for these holdings are discussed more fully below.

The basis for this controversy originates in Senate Bill 706 enacted by the last Legislature. ² Section 3 of that bill amends Section 61.058 of the Texas Education Code to read in part as follows 'To assure efficient use of construction funds and the orderly development of physical plants to accommodate projected college student enrollments, the board (the Coordinating Board, Texas College and University System) shall:

'(8) approve or disapprove all new construction and repair and rehabilitation of all buildings and facilities at institutions of higher education financed from any source other than ad valorem tax receipts of the public junior colleges, Provided that:

(D) the requirement of approval or disapproval by the board Does not apply to any new construction or major repair and rehabilitation project that is Specifically approved by the legislature.'

Several days after the passage of Senate Bill 706, the Legislature approved the General Appropriations Act for the 1975--1977 biennium. In that Act, following the schedule of appropriations for The University of Texas at Austin, there appears a rider which contains three sections. The rider reads:

'The Board of Regents of The University of Texas System Is hereby authorized (1) to expend such amounts of its Permanent University Fund bond proceeds and/or other bond proceeds and such amounts of its other available moneys as may be necessary to fund one or more of the following projects either in whole or in part, (2) to accept gifts, grants, and matching grants to fund any one or more of such projects either in whole or in part, and (3) to acquire, construct, alter, add to, repair, rehabilitate, equip and/or furnish any one or more of such projects for The University of Texas at Austin:

(1) Alterations and Additions to Law School . . .' ³

Other projects not relevant here are also listed.

It is the position of Jessen Associates (hereinafter referred to as Jessen) that the specific legislative approval required in the College Coordinating Board statute set out above was given, in as much as the rider states that 'The Board of Regents . . . is hereby authorized.' As indicated, we agree that it did constitute such approval.

By proclamation dated June 22, 1975, the Governor attempted to veto this rider to the General Appropriations Act.

Notwithstanding the Governor's action, the Board of Regents of The University of Texas System approved a project for the construction of alterations and additions to The University of Texas School of Law, and entered into a written contract with Jessen. Jessen made certain preliminary studies and cost estimates with regard to the construction project, and submitted its claim for payment in the amount of $2,590.25. This amount was approved by the Board of Regents, and a voucher was issued directing the Comptroller of Public Accounts to issue a warrant in payment of the claim.

The voucher was submitted to Respondent Bullock, who declined to issue the warrant. In a letter to Jessen and the Chairman of the Board of Regents, Bullock gave the following reasons for his action: (1) the proposed construction project had not been approved by the Coordinating Board, as required by Article 61.058(8) of the Texas Education Code; (2) the Governor had vetoed the provision in the General Appropriations Act by which the Legislature had sought to give its approval to the project; (3) that provision is void because it constitutes 'general legislation' in violation of Section 35, Article III, of the Texas Constitution; ⁴ and (4) the vetoed provision did not constitute 'specific approval by the legislature' as required under Section 61.058(8)(D) of the Texas Education Code.

The constitutional provisions dealing with the Governor's power to veto legislation are found in Article IV, Section 14 of the Texas Constitution:

'Sec. 14. Every bill which shall have passed both houses of the Legislature shall be presented to the Governor for his approval. If he approve he shall sign it; but if he disapprove it, he shall return it, with his objections . . .. If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and no item so objected to shall take effect.'

This language is the sole source of the Governor's authority to veto legislation. His veto power is a legislative function and not an executive function, and it exists only to the extent granted by the Constitution. To the extent that the Governor's actions exceed this authority, they have no effect. Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911). Therefore the first question for our consideration is whether the Governor's attempted veto was permitted under the constitutional language set out above.

The case of Fulmore v. Lane, supra, is a leading Texas authority on the veto power of the Governor. That case, like this one, involved an attempt to veto a portion of a General Appropriations Act. In the opinion by Justice Dibrell, ⁵ there appears the following discussion:

The executive veto power is to be found alone in section 14, art. 4, of the Constitution of this state. By that section he is authorized to disapprove any bill in whole, or, if a bill contains several items of appropriation, he is authorized to object to one or more of such items. Nowhere in the Constitution is the authority given the Governor to approve in part and disapprove in part a bill. The only additional authority to disapproving a bill in whole is that given to object to an item or items, where a bill contains several items of appropriation. It follows conclusively that where the veto power is attempted to be exercised to object to A paragraph or portion of a bill other than an item or items, or to language qualifying an appropriation or directing the method of its uses, he exceeds the constitutional authority vested in him, and his objection to such paragraph, or portion of a bill, or language qualifying an appropriation, or directing the method of its use, becomes noneffective. 140 S.W. at 412.

Consequently, if the provision which the Governor attempted to veto in the present case is not An item of appropriation, but is merely language qualifying an appropriation, or directing its uses, then the veto is of no effect. See also Texas Attorney General Opinion No. V--1196 (1951). ⁶

There is no Texas authority other than the Fulmore case which deals with the question of what is meant by 'item of appropriation.' ⁷ ] However, that term has been discussed by courts in other jurisdictions with similar constitutional provisions. In Bengzon v. Secretary of Justice, 299 U.S. 410, 57 S.Ct. 252, 81 L.Ed. 312 (1936), the Supreme Court of the United States held that such term 'obviously means an item which in itself is a specific appropriation of money . . .' The Supreme Court of Florida, in Green v. Rawls, 122 So.2d 10 (Fla.1960), made its determination based on the presence of two factors. Where a certain provision designates a specified purpose and the amount to be used therefor, it is an item of appropriation even though it may be included in a larger, more general item. In Commonwealth v. Dodson, 176 Va. 281, 11 S.E.2d 120 (1940), the following definition is given:

An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose. It is something different from a provision or condition, and where conditions are attached, they must be observed; where none are attached, none may be added.

It can be said then that the term 'item of appropriation' contemplates the setting aside or dedicating of funds for a specified purpose. This is to be distinguished from language which qualifies or directs the use of appropriated funds or which is merely incidental to an appropriation. Language of the latter sort is clearly not subject to veto. Fulmore v. Lane, supra; Bengzon v. Secretary of Justice, supra; Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923); Turner v. Iowa State Highway Comm'n, 186 N.W.2d 141 (Iowa 1971); State v. Holder, 76 Miss. 48, 23 So. 643 (1898); Commonwealth v. Dodson, supra; Texas Attorney General Opinion Nos. M--1199 (1972), V--1196 (1951).

It is clear that ...