Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL

OF TEXAS

Wh 14, 1988

Honorable Bob Bullock Opinion NO. J&872

Comptroller of Public

Accounts Re: Authority of State Auditor

L.B.J. Building and Legislative Audit Committee

Austin, Texas 78774 to conduct economv and efficiencv.

audits and effectiveness audits

under section 321.0133 of the

Texas Government Code, and

related questions (RQ-1279)

Dear Mr. Bullock:

YOU ask six questions regarding the proper construc-

tion and constitutionality of two recently enacted bills

that.set forth responsibilities and authority' of the

State Auditor and the Legislative Audit Committee. The

Committee comprises the Lieutenant Governor,.the Speaker

of the House, and the chairmen of the Senate State Affairs

Committee, the Senate Finance Committee, .the House

Appropriations Committee, and the House Nays and Means

Committee. See Gov't Code 9321.002. Several of your

questions ra= issues that have not been addressed yet

specifically in any court case or any Attorney General

opinion in Texas: these are issues of first impression.

The first bill with which you are concerned, House Bill

No. 699 [hereinafter H.B. 6991 amends the Government Code

by adding several sections to chapter 321 governing the

State Auditor and the Legislative Audit Committee,

including sections 321.0133, 321.0134 and 321.016, that

define specifically the sorts of audits that the auditor

may conduct with the approval of the committee. Acts

1987, 70th Leg., .ch. 862, 56 at 5876-5889. The second

bill with which you are concerned, House Bill No. 2181

[hereinafter H.B. 21811, amends sections 51.005 and 61.065

of the Education Code, and purports to confer joint

rulemaking authority on the State Auditor and the College

Coordinating Board. Acts 1987, 70th Leg., ch. 823,

§§3.06, 4.02, at 5712-13, 5725-26. Before we turn to your

first question, we first present a brief history of the

position of State Auditor in order that we may place in

perspective the scope of the 1987 amendments.

p. 4225

.,i

Honorable Bob Bullock - Page 2 (~~-872)

?

The position of "State Auditor and Efficiency

Expert," an executive branch officer appointed by the

Governor ', was created in 1929.1 Acts 1929, 41-d Leg., 1st ?

C-S., ch. 91, at 222. He was to be '*an investigator of

all custodians of public funds and disbursing officers ,of

the State and personnel of departments." Acts 1929, 41st

L-3., 1st C.S., ch. 91, 51, at 222. He was granted the

authority "to inspect all the books and records of all the

officers, departments and institutions of the State

Government" and to "investigate the efficiency of the the

personnel and clerical forces thereof." Acts 1929, 41st

L-3. I 1st C.S., ch. 91, 53, at 223. Section 4 of the act

provided the following:

In addition to the other duties provided

for said Auditor, he shall thoroughly

examine all departments of the State

Government with special regard to their

activities and the duplication of efforts

between departments, and the efficiency of

the subordinate employees in each of such

several departments. He shall examine into

the work done by the subordinate employees

in the several departments of .the State

Government.

Upon completing the examination of any

department he shall furnish the head of said

department with a report on (a) the effi-

ciency of the subordinate employees; (b) the

status and condition of all public funds in

charge of said department; (c) the amount of

duplication between work done by the depart-

ment so examined and other departments of

the State Government: (d) such a system of

accounts as will provide for a uniform

system of auditing, bookkeeping, and system

1. We note that section 402.026, Gov't Code,

reposes responsibility in the Attorney General, inter

u, to inspect monthly "the accounts of the offices of

the state treasurer, comptroller, and each other person

responsible for collection or custody of state funds." It

appears that this provision, which was first enacted in

1879 and subsequently recodified three times before its

inclusion in the non-substantive recodification of the

Government Code in 1985, heretofore has not been enforced.

p. 4226

Honorable Bob Bullock - Page 3 (J&872)

of accounts for every department of State.

He shall also make recommendations to the

said head of the departments for the

elimination of duplication and inefficiency.

A copy of each such report submitted by said

officer to the head of the department shall

be forthwith furnished to the Governor, the

Speaker of the House, and the President of

the Senate. Nothing contained herein shall

be construed as authorizing the State

Auditor to employ or discharge any state

employee other than those herein authorized

to be appointed by him for his department.

Acts 1929, 41st Leg.; 1st C.S., ch. 91, 54, at 223. And

finally, he was required, at section 5, to prepare a

report showing the status of all public funds in the state

and to +ecommend to the Legislature such changes as he

deems necessary to provide uniform, adequate and efficient

systems of records and accounting in each department."

Acts 1929, 41st Leg., 1st C.S., ch. 91, 55, at 224.

The 1929 act was repealed in 1943. The position was

renamed "State Auditor," and appointment power was vested

in the newly-created Legislative Audit Committee, a joint

interim committee of the legislature. Acts 1943, 48th

Leg., ch.293, at 429 [codified at V.T.C.S. arts. 4413a-13

through 4413a-241. Section 7 of 1943 act continued to

repose in the Auditor the authority to audit all accounts,

books, and financial records of every agency of the state,

but the act for the first time purported to confer on the

Auditor the authority, not just to report to the legisla-

ture recommended changes, but also to direct the adminis-

tration or execution of the laws by executive branch

agencies themselves insofar as he was authorized: "TO

require such changes in the accounting system or systems

and record or records of any office, department, board,

bureau, institution, commission or state agency, that 'in

his opinion will augment or provide a uniform, adequate,

and efficient system of records and accounting." Acts

1943, 48th Leg., ch. 293, §7(3), at 431. Section 8 of the

1943 act also required the Auditor to prepare, again, a

report for the head of every agency on, inter alia, the

P

efficiency of subordinate employees, the amount of

duplication between work done by the examined agency and

other agencies, and "any suggested changes looking toward

economy and reduction of number of clerical and other

employees, and the elimination of duplication and

inefficiency." Section 8 also set forth the following:

p. 4227

Honorable Bob Bullock - Page 4 (JR-872)

Reports shall also contain specific

recommendations to the Legislature for the

amendment of existing laws or the passage of

new laws designed to improve the functioning

of various departments, boards, bureaus,

institutions or agencies of State Government

to the end that more efficient service may

be rendered and the cost of government

reduced.

All recommendations submitted by the

State Auditor shall be confined to those

matters properly coming within his jurisdic-

tion, which is to see that the laws passed

by the Legislature dealing with the expendi-

ture of public moneys are in all respects

carefully observed, and that the attention

of the Legislature is directed to all cases

of violation of the law and to those

instances where there is need for change of

existing laws or the passage of new laws to

secure the efficient 'spending of public

funds. The State Auditor shall not include

in his recommendations to the Legislature

any recommendations as to the sources from

which taxes shall be raised to meet the

governmental expense.

Acts 1943, 48th Leg., ch. 293, 58, at 432. And finally,

section 10 of the act authorized the Legislative Audit

Committee to conduct hearings with the head of any agency

where the Auditor has found "evidence of improper prac-

tices of financial administration or of any general

incompetency of personnel, inadequacy of financial

records." Acts 1943, 48th Leg., ch. 293, 510, at 433.

The committee was required to report to the legislature

any refusal of the agency officials to remedy "Such

incompetency or the, installation of proper fiscal

records." Id. Except for a 1977 amendment giving the

committee authority to subpoena information that it seeks,

the act remained unchanged until 1985. At that time, the

articles governing the Legislative Audit Committee and the

State Auditor were recodified in a nonsubstantive revision

and placed in Chapter 3 of the newly-enacted Government

Code. House Bill No. 699 and House Bill No. 2181, the two

bills about which you inquire, were adopted in 1987 by the

70th session of the Legislature.

p. 4228

Honorable Bob Bullock - Page 5 (JM-872)

Prior to the enactment of H.B. 699, section

321.013(a) of the Government Code provided, inter alia,

that the State Auditor shall "perform an audit of all

governmental accounts, books, and other financial records

of any state officer or department." The chapter did not

define "audit," but section 321.014(a) provided that the

Vtate Auditor shall conduct each audit as directed by the

committee and as prescribed by this chapter." With the

passage of H.B. 699, section 321.013(f) of the Government

Code now confers authority on the State Auditor to conduct

various types of audits, specifically "financial ~audits,

compliance audits, economy and efficiency audits,

effectiveness audits, special audits, and investigations

as defined by this chapter."

Sections 321.0133 and 321.0134 of the Government Code

define "economy and efficiency audit" and "effectiveness

audit" respectively. Section 321.0133 of the Government

Code provides:

An economy and efficiency audit is an audit

to determine:

(1) whether the audited entity is

managing or utilizing its resources,

including state funds, personnel, property,

equipment, and space, in an economical and

efficient manner:

(2) causes of inefficiencies or uneconom-

ical practices, including inadequacies in

management information systems, internal and

administrative procedures, organizational

structure, use of resources, allocation of

personnel, purchasing, policies, and eguip-

ment; and

(3) whether financial, program, and stat-

istical reports of the audited entity

contain useful data and are fairly

presented.

Section 321.0134 of the Government Code provides:

(a) An effectiveness audit is an audit to

determine, according to established

designated prcgram objectives, responsibilyf

ties or duties, statutes and regulations,

program performance criteria, or program

evaluation standards:

p. 4229

Honorable Bob Bullock - Page 6 W-872)

(1) whether the objectives and

intended benefits are being achieved

efficiently and effectively: and

(2) whether the program duplicates,

overlaps, or conflicts with another state

program.

(b) An effectiveness audit may be sched-

uled only when the audited entity is not

scheduled for review under the Texas Sunset

Act (Chapter 325).

Section 321.016 of the Government Code requires, inter

u, that the State Auditor report to the Governor, the

Legislative Audit Committee, the administrative head and

the chairman of the governing body of the affected agency,

any evidence of improper practices of financial adminis-

tration or "ineffective program performance"; the Legisla-

tive Audit Committee is required then to report to the

legislature any refusal by the administrative head or the

governing body of the agency to make changes recommended

by the committee.

You first ask whether section 321.016 of the Govern-

ment Code, as amended by H.B. 699, is unconstitutional to

the extent that it purports to give the Legislative Audit

Committee the authority to order changes in the way in

which legislation is implemented or administered by an

executive agency. Section 321.016, Government Code, now

provides the following:

(a) If in the course of an audit the

State Auditor finds evidence of improper

practices of financial administration,

inadequate fiscal records, uneconomical use

of resources, or ineffective program

performance, the State Auditor, after

consulting with the head of the agency,

shall immediately report the evidence to the

governor, the committee, and the administra-

tive head and the chairman of the governing

body of the affected department.

(b) If in the course of an audit the

State Auditor finds evidence of an illegal

transaction, the State Auditor, after

consulting with the head of the agency,

p. 4230

Honorable Bob Bullock - Page 7 (JB-872)

shall immediately report the transaction to

the governor, the committee, and the appro-

priate legal authority.

(c) Immediately after the committee

receives a report from the State Auditor

alleging improper practices of financial

administration, uneconomical use of

resources, or ineffective program perform-

ance, the committee shall review the report '

and shall consult with and may hold hearings

with the administrative head and the

chairman of the governing body of the

affected department regarding the report.

(d) If the administrative head or the

governing body of the affected department

refuses to make the changes recommended by

the committee at the hearing or provide any

additional information or reports requested,

the committee shall report the refusal to

the legislature.

The various statutes enacted through the years

conferring authority upon the Legislative Audit Committee

and its effective agent, the State Auditor, reveal a trend

toward the conferral of ever-expanding authority on both.

The 1929 act conferred upon the State Auditor and

Efficiency Expert the authority to examine the fiscal

records of every state agency and to make recommendations

to the legislature regarding the elimination of

duplication and inefficiency. The 1943 act attempted to

expand the authority of the newly-named State Auditor by

conferring upon him the power, not only to report to the

legislature recommended changes, but to direct the admin-

istration or execution of the laws by requiring each

agency to install whatever method of accounting and record

keeping that he recommended. After conducting hearings

with the heads of those agencies in which the State

Auditor found evidence of improper practices of financial

administration, inadequate financial records, or "general

incompetency of personnel," the newly-created Legislative

Audit Committee was required to report to the legislature

as a whole any refusal of agency officials to remedy those

identified problems. And with the 1987 amendments to the

recently-codified Government Code, the State Auditor

appears to be empowered to "audit" not just the efficiency

and cost effectiveness of an agency's performance, but

also the substantive performance of the tasks and

responsibilities imposed by law on an executive agency,

p, 4231

Honorable Bob Bullock - Page 8 (JM-872)

. to determine whether there is "ineffective program

;eZormance." It appears, for example, that inquiry into

whether the College Coordinating Board, for instance, is

in fact carrying out its statutory responsibilities rests

now with the Legislative Audit Committee rather than with

the Committee on Higher Education in the House of

Representatives and with the Committee on Education in the

Senate.

Article II, section 1, of the Texas Constitution

provides for the separation of powers between the

executive, the judicial, and the legislative branches of

government. It states:

The powers of the Government of the State of

Texas shall be divided into three distinct

departments, each of which shall be confided

to a separate body of magistracy, to wit:

Those which are Legislative to one, those

'which are Executive to another, and those

which are Judicial to another: and no

person, or collection of persons, being of

one of these departments, shall exercise any

power properly attached to either of the

others, except in the instances herein

expressly permitted.

This office has consistently held that any attempt by

the legislature to supervise the implementation of duly

enacted statutes through the means of a legislative

committee or through some means other than the normal

legislative processes (set forth in sections 28 through 40

of article III of the Texas Constitution) violates article

II, section 1. Attorney General Opinions MW-460 (1982) r

V-1305 (1951); V-1254 (1951); and O-4609 (1942). This

rule is the rule in virtually every other state that has

had cause to address this issue. See, e.9. Legislative

Research Comm'n v. Brown, 664 S.W.2d 907 (Ky: 1984); State

ex rel. SteDhan v. Kansas House of ReDresentatives, 687

P.2d 622 (Kan. 1984); General Assemblv of the State of New

Jersev v. Bvrne, 448 A.2d 438 (N.J. 1982); State ex rel.

Barker v. Manchin, 279 S.E.2d 622 (W. Va. 1981); State of

Alaska v. A.L.I.V.E. Voluntary 606 P.2d 769 (Alaska

1980); see also Bonfield, S&e Administrative Rule

Makinq, 58.3.2(c).

In Attorney General Opinion O-4609 (1942), this

office addressed whether a bill creating a Joint

Legislative Advisory Committee and conferring specific

powers thereon was constitutional. The opinion construed

p. 4232

Honorable Bob Bullock - Page 9 (~~-872)

a rural aid appropriations bill, Acts 1941, 47th Leg., ch.

549, at 880, that created a joint legislative advisory

committee composed of five senate members and five house

members. The committee was given the authority to approve

numerous transactions, including the receipt of tuition

payments and transportation aid by school districts. This

office held that only so much of the act that created a

joint legislative advisory committee to study school laws

as an aid to their recodification was constitutional; the

provisions reposing in the committee the authority to

administer the law were unconstitutional.

It is the function of the legislative branch

of the government to make the laws: it is

the function of the executive branch of the

government to administer and execute those

laws. In the statute under consideration,

the Legislature of the State of Texas has

undertaken not only to declare what the law

shall be, which is clearly its prerogative,

but has also undertaken to clothe a portion

of the membership of the Legislature, the

Joint Legislative Advisory Committee, with

the authority to execute and administer the

law passed by the Legislature. Under

Article 2. Section 1. of the Constitution of

the State of Texas. the Legislature is

powerless to clothe itself, or a nortion of

its members. with executive authoritv.

(Emphasis added.)

Attorney General Opinion O-4609 (1942) at 8.

In Attorney General Opinions V-1305 and V-1254

(19511, this office declared unconstitutional

appropriations act rider that attempted to confer on tii

Legislative Budget Board the authority to require of

various executive branch administrative agencies further

itemization of appropriations or specific approval of the

expenditure of appropriated funds by the board.

The phrase 'any power properly attached

to either of the others' [set forth in

Article II, section l] prompts inquiry as to

what powers belong to each branch. 'Legis-

lative' means 'making, or having the power

to make, a law or laws.' Webster's New

International Dictionary (2d Ed. 1938).

This includes making and itemizing approp-

riations. 'The power to itemize

p. 4233

Honorable Bob Bullock - Page 10 (JR-872)

appropriations is a legislative power which

it may exercise if it sees fit as lona

the matter is in its hands. . . . Tit: ?

legislation is complete when the

;zEp;iation is made.' -Peoole V. Tremaine

. . 817 (N.Y. Ct. ADD. 1929). Th;

monev once ansronriated. th;-Legislature is

no longer authorized to concern itself with

the further segregation and disbursement of

the funds. the constitutional inhibition

beina not onlv against actual usurnation of

the function, but also against one

denartment's setting itself UD in a

sunervisorv caoacitv over the actions of

another. lcitation omittedl. Parenthetic-

allv. it mav be noted here that if the

gnnroval of nrooosed exnenditures be con-

sidered a legislative function. still such

function could not be delegated bv the body

a a 1 few of its members.

[%tati%"o~it~~d.~

The legislative function'being to make

laws, the executive function is to carry

them out. Webster's New International

Dictionary (2d Ed. 1938), in its definition

of 'executive,' uses the phrases 'or

carrying into effect' . . . 'or secures

their due performance.' More snecificallv,

the fiscal administration of the affairs of

the ao ernment has been held to be an

executi:e dutv lcitation omitted.1 The

above riders 'thus attern& to vest

executive Dower in a ioint committee of tFZ

legislative branch. (Emphasis added.)

Attorney General Opinion V-1254 (1951) at 15.

And finally, in Attorney General Opinion MW-460

(1982), this office held unconstitutional legislation that

purported to confer authority on the standing committees

of both houses of the legislature effectively to veto or

repeal administrative rules adopted by executive agencies

pursuant to the Administrative Procedure and Texas

Register Act, article 6252-13a, V.T.C.S. The opinion held

that the discretionary rulemaking authority delegated to

an administrative agency is an executive function; it is

therefore impermissible under article II, section 1 of the

Texas Constitution, for the legislature or one of its

committees to usurp the function. See Walker v. Baker, -7

p. 4234

Honorable Bob Bullock - Page 11 (JM-872)

.

196 S.W.2d 324 (Tex. 1946); Kx oarte Younablood;251 S.W.

509 (Tex. Crim. App. 1923).

In passing upon the constitutionality of any statute,

we begin with a presumption of validity. Smith v. Davis,

426 S.W.2d 827 (Tex. 1968); Texas National Guard Armory

Board v. McGraw 126 S.W.2d 627 (Tex. 1939). We are

required, moreov&, to construe the code .provisions at

issue in a way that comports with the constitution, if any

such reasonable c'onstruction is possible. McKinnev

Blankenshin, 282 S.W.2d 691 (Tex. 1955); Thomas v. Groeby;

212 S.W.2d 625 (Tex. 1948). See also Gov't Code, 5311.021

(Code Construction Act): Local Gov't Code, 51.002

(application of Code Construction Act to Local Government

Code).

If we were to construe section 321.016 of the

Government Code in the fashion that you suggest, i.e., as

conferring authority on the Legislative Audit Committee to

order changes in the way that executive agencies implement

or administer duly enacted statutes, we would be

constrained to hold the section unconstitutional.

However, we do not so construe that provision. Subsection

(c) of section 321.016 merely confers on the committee the

authority to make recommendations to the various executive

agencies, recommendations that each agency may ignore.

However, subsection (d) provides that, if any agency

refuses to accept any such recommendation, the committee

is required to inform the legislature as a whole of that

fact. Subsection (d) permits an ill-disguised attempt by

the committee to direct the methods by which investigated

administrative agencies execute the laws. While it is true

that the committee itself technically is not conferred the

authority to impose sanctions or to enforce compliance by

those administrative agencies that refuse to comply with

committee recommendations, the absence of such conferral

of authority does not resolve the article II, section 1,

issue. Subsection (d) clearly acts in a punitive, and

perhaps in 6 coercive, fashion that is tantamount to a

legislative usurpation of executive power, in violation of

article II, section 1, of the Texas Constitution. We do

not question the authority of the legislature or of a

committee of the legislature to gather information and to

P

investigate those matters about which it properly could

enact legislation, a subject that we will address more

fully in answer to your fourth and fifth questions. We

question only the propriety of making a committee's report

to the legislature as a whole mandatory upon an adminis-

trative agency's refusal to comply with the committee's

recommendations.

p. 4235

Honorable Bob Bullock - Page 12 (JB-872)

As a matter of law, the committee does not have the

authority to order any executive agency to implement or

administer any law in any particular manner, any more than

it has authority to direct officers in the judicial branch

in the construction of the laws, which the constitution

reposes in the judicial branch. The legislature's

authority to direct the administration of laws whose

execution is reposed by statute in.so-called "legislative

agencies," see. e.g., Gov't Code, §§326.001-326.003, is

greater, 'of course. Accordingly, we conclude that chapter

321 of the Government Code, which creates the Legislative

Audit Committee and the office of State Auditor and

confers powers and duties thereon, does not authorize the

Legislative Audit Committee to order an executive agency

to change the way in which it implements or administers

any law; however, subsection (d) of section 321.016 does

authorize an impermissible intrusion by the legislative

branch into areas of administration reposed by the Texas

Constitution in the executive branch. Insofar as that

subsection requires the committee to report to the legis-

lature as a whole in the event that an administrative

agency fails to adopt its recommendations, subsection (d)

is unconstitutional.

You next ask whether the State Auditor, whom you

characterize as, in effect, an employee of the Legisla-

ture, may properly exercise authority to supervise members

of the executive branch in their implementation of

statutes or whether his proper role is investigatory only.

As we noted earlier, the position of State Auditor was

created in 1943 to replace an executive officer, the

"State Auditor and Efficiency Expert," appointed by the

governor. Acts 1929, 41st Leg., 1st C.S., ch. 91, at 222.

The 1943 act repealed the 1929 act, created the Legisla-

tive Audit Committee, renamed the position "State

Auditor," and conferred authority on the committee to

appoint him. There is no question that the State Auditor

is an appointee and an agent of the legislature. &g

Gov't Code, §§326.001-326.003 (authorizing co-operation

between houses of the legislature and leaislative

agencies) (formerly codified as article 5429g, V.T.C.S.);

see also Attorney General Opinions MB-192 (1980): H-1063

(1977); V-504 (1948). Accordingly, we conclude that the

State Auditor is a subordinate of the legislative branch.

For the reasons set forth in answer to your first

question, if we were to construe chapter 321 as conferring

on the State Auditor the authority to order any changes in

the way in which executive agencies administer the laws,

we would be constrained to declare any such provisions

p. 4236

Honorable Bob Bullock - Page 13 04-872)

unconstitutional as a violation of article II, section 1,

of the Texas Constitution. And, again, for the reasons

set forth in answer to your first question, we do not

construe any provision of chapter 321 of the Government

Code as conferring authority on the State Auditor to order

executive agencies to change the way in which statutes are

implemented or administered. If the State Auditor were

part of the executive branch whose activities were

directed, as they were prior to the 1943 enactment, by the

Governor rather than by the Legislative Audit Committee,

his authority possibly could be broader. But such is not

the case.

Section 321.013 of the Government Code sets forth the

powers and duties of the State Auditor and provides:

(a) The State Auditor shall conduct

audits of all departments, including insti-

tutions of higher education, as specified in

the audit plan. At the direction of the

committee, the State Auditor shall conduct

.an audit or investigation of any entity

receiving funds from the state.

(b) The State Auditor shall conduct the

audits in accordance with generally accepted

auditing standards as prescribed by the

American Institute of Certified Public

Accountants, the Governmental Accounting

Standards Board, the United States General

Accounting Office, or other professionally

recognized entities that prescribe auditing

standards.

(c) The State Auditor shall determine the

audit plan for the state for each fiscal

year. In devising the plan, the State

Auditor shall consider recommendations

concerning coordination of agency functions

made by the committee composed of the

Legislative Budget Board, Sunset Advisory

Commission, and State Auditor's Office. The

plan shall provide for auditing of federal

programs at least once in each fiscal bien-

nium and shall ensure that audit reguire-

ments of all bond covenants and other credit

or financial agreements are satisfied. The

committee shall review and approve the plan.

p. 4237

Honorable Bob Bullock - Page 14 (JK-872)

(d) At any time during an audit or

investigation, the State Auditor may require

the assistance of the administrative head,

official, auditor, accountant, or other

employees of the entity being audited or

investigated.

(e) The State Auditor is entitled to

,access to all of the books, accounts,

confidential or unconfidential reports,

vouchers, or other records of information in

any department or entity subject to audit,

including access to all electronic data.

However, the State Auditor has access to

information and data the release of which is

restricted under federal law only with the

approval of the appropriate federal adminis-

trative agency, and the State Auditor shall

have access to copyrighted or restricted

information obtained by the Office of the

Comptroller of Public Accounts under sub-

scription agreements and utilized in the

preparation of economic estimates only for

audit purposes.

(f) The State Auditor may conduct finan-

cial audits, compliance audits, economy and

efficiency audits, effectiveness audits,

special audits, and investigations as

defined by this chapter and specified in the

audit plan.

(g) To the extent that the performance of

the powers and duties of the State Auditor

under law is not impeded or otherwise

hindered, the State Auditor shall make

reasonable efforts to coordinate requests

for employee assistance under Subsection (d)

or requests for access to books, accounts,

vouchers, records, or data under Subsection

(e) so asp not to hinder the daily operations

of the audited entity.

(h) The State Auditor may not conduct

audits of private entities concerning

collection or remittance of taxes or fees to

the state if the entity is subject to audit

by another state agency for the taxes or

fees.

p. 4238

Honorable Bob Bullock - Page 15 (JM-872)

.

(i) If the State Auditor decides a change

in an accounting system is necessary, the

State Auditor shall consider the present

system of books, records, accounts, and

reports to ensure that the transition will

be gradual and that the past and present

records will be coordinated into the new

system.

Sections 321.0131 through 321.0136 define the various

audits and investigations that the State Auditor may

conduct. Nothing in these sections or in section 321.016,

purports to confer any authority upon the State Auditor to

direct the activities of state agencies.

In your third question you ask whether sections

51.005 and 61.065 of the Education Code, as amended by

H.B. 2181, are unconstitutional insofar as they purport to

allow the State Auditor, an agent of the legislative

branch, to prescribe administrative rules for state

institutions of higher education. Prior to the 1987

amendments, the authority to prescribe such administrative

rules was reposed solely in the College Coordinating

Board. In a letter accompanying a brief submitted to this

office by the State Auditor, it is urged that, if it is

constitutional for the legislature to delegate to a member

of the executive branch the authority properly to promul-

gate rules that have the force and effect of law, it is

certainly constitutional for the legislature to delegate

such authority to a member of the legislative branch. We

disagree; we conclude that the amended sections of the

Education Code are unconstitutional insofar as they

purport to confer joint rulemaking authority on the State

Auditor and the College Coordinating Board.

Section 51.005 of the EducationCode provides:

(a) True and full accounts shall be kept

by the governing board and by the employees

of the institution of all funds collected

from all sources and of all sums paid out

and the persons to whom and the purposes for

which the sums are paid. The governing

board shall annually, between September 1

and January 1, print a complete report of

all the sums collected, all expenditures,

and all sums remaining on hand. The report

P. 4239

Honorable Bob Bullock - Page 16 (JM-872)

.

shall show the true condition of all funds

as of the August 31 preceding as well as the

collections and expenditures for the

preceding year.

(b) ReDOrtS under this section must be in

a form aDVrOVed iointlv bv the coordinatinq

board and the state auditor. Tbe accoun&&lg

and classification vrocedures of each insti-

tution must be consistent with uniform

procedure vrescribed f r that DurDose bv

the coor%natinci boar: and the state

auditor. The requirements imvosed bv the

coordinating board and state auditor must be

designed to reduce DaDerwork and duvlicative

reDorts .

(c) The governing board shall furnish one

copy of the report each to the governor,

comptroller of public accounts, state

auditor, Texas Higher Education Coordinating

Board, Legislative Budget Board, House

Appropriations Committee, Senate Finance

Committee, and Legislative Reference Libra- 1

W. The governing board shall retain five

copies of the report for distribution to

legislators or other state officials on

request. (Emphasis added.)

Section 61.065 of the Education Code provides:

(a) The state auditor and the board

iointlv shall DreSCribe and DeriOdiCallV

UDdate a uniform 'svstem of financial

accounting and reDortina for the institu-

tions of higher education. includinq

definitions of the elements of cost on the

basis of which aDDroDriations shall be made

and financial records shall be maintained.

In order that the uniform system of

financial accounting and reporting shall

provide for maximum consistency with the

national reporting system for higher ?

education, the uniform system shall

incorporate insofar as possible the

provisions of the financial accounting and

reporting manual published by the National

Association of College and University

p. 4240

Honorable Bob Bullock - Page 17 (JM-872)

Business Officers. The accounts of the

institutions shall be maintained and audited

in accordance with the approved reporting

system.

(b) The coordinating board shall annually

evaluate the informational requirements of

the state for purposes of simplifying insti-

tutional reports of every kind and shall

consult with the state auditor in relation

to appropriate changes in the uniform system

of financial accounting and reporting.

(Emphasis added.)

In legal theory, the legislative power vested in the

legislature by article III, section 1, of the constitution

must be exercised by it alone. Texas National Guard

Armorv Board v. McGraw, sunra; Brown v. Humble Oil 8

Refining Co., 83 S.W.2d 935 (Tex. 1935). The principle of

non-delegation, however, has certain important

qualifications. See aenerallv, Annot., Permissible limits

to delegation of legislative Dower, 79 L.Ed. 414 (1935).

Many powers properly have been delegated by the legisla-

ture to administrative agencies. See, e.9 q

Authoritv of Dallas v. Hiaainbotham, 143 s.i: 79""yEi.

1940); Brazos River Conservation & Reclamation Dist. v.

McGraw, 91 S.W.2d 665 (Tex. 1936); Trimmier v. Carlton,

296 S.W.Zd 1070 (Tex. 1927). Among them has been the

power to make rules having the force and effect of law.

S , e.a., Housing Authoritv of Dallas v. Hiaainbotham,

$&a .; O'Brien v. Amerman, 247 S.W. 270 (Tex. 1922):

Soears v. Citv of San Antonio, 223 S.W. 166 (Tex. 1920).

Valid rules promulgated by an administrative agency acting

within its statutory authority have the force and effect

of legislation. Lewis v. Jacksonville Building and Loan

Association 540 S.W.2d 307 (Tex. 1976). A rule

oromulaated'bv an administrative aaencv acting within its

delegated authority should be considered under the same

.principles as if it were the act of the legislature.

Texas Licuor Control Board v. Attic Club, Inc., 457 S.W.

41 (Tex. 1970). Nevertheless, when such rulemaking power

is vested in an agency of the state, it is regarded as an

incident of the executive power to administer laws enacted

by the legislature, and not as a power to enact laws. It

is held that an act of the legislature that is complete

and comprehensive in itself and which confers upon an

agency authority only to establish rules, regulations and

minimum standards to reasonably carry out the expressed

purposes of the leaislature's act, does not make a

constitutionally forbidden delegation of legislative

p. 4241

Honorable Bob Bullock - Page 18 (JM-872)

power. Oxford v. Hill 558 S.W.2d 557 (Tex. Civ. App. -

Austin 1977, writ ref:d). It confers only the power to

efficiently administer the complete law already

established by the legislature. See E

561 S.W.2d 503 (Tex. Crim. App. 1978).

Comoanv v. State 153 S.W.2d 681 (Tex. 1941) (delegated

power to fix rat& is legislative power).

The power to control or correct decisions committed

to administrators by law is an executive,function. Walker

v. Baker, m. The legislature, of course, may in the

first instance severely restrict the discretion of

executive officers or administrators to make rules by so

thoroughly detailing legislation before it leaves its

ambit that little or no room is left for administrative

interpretation. &g Fire DsDartment f Citv of Fort Worth

v. Citv of F r-tWorth 217 S.W.2d 664O(Tex. 1949); Letter

Advisory No.O2 (1973): And, by the proper exercise of its

law-making powers, the legislature may supersede or repeal

any agency rule or decision that has acquired the force

and effect of law. But when a statute commits. to an

administrative agency's control the power to execute that

law and promulgate rules in order to better administer the

legislative policy embodied therein, neither the legisla-

ture nor any of its committees may direct that agency

regarding the manner in which the executive discretion is

thus reposed. Tex. Const. art. II, 51.

If a discretionary Nlemaking function delegated to

an administrative agency is an executive function -- as we

think it is -- it is impermissible for the legislature (or

one of its committees) to usurp that function. Tex.

Const. art. II, 51, Walker v. Baker, m; Ex oarte

Younablood, suora; Attorney General opinions V-1254

(1951); O-4609 (1942). See State ex r 1 Judae v.

Legislative Finance Committee, et al., 5:3- P.2d 1317

(Mont. 1975). Se also Anderson v. Lamm, 579 P.2d 620

(Colo. 1978): Ine r ni i of the Justices to the

Governor, 341 N.E.2de25z (:a::. 1976). See also, Railroad

Commission of Texas v. Shell Oil ComDanv, 161 S.W.Zd 1022

(Tex. 1942): penison v. State, 61 S.W.2d 1017 (Tex. Civ.

APP. - Austin), writ ref'd ner curiam, 61 S.W.2d 1022

(Tex. 1933).

The amendments also violate article III, section 1,

of the Texas Constitution, even if the powers conferred

could be said to be purely legislative in character. It

was held in Parks v. West, 111 S.W. 726 (Tex. 1908), and

reiterated in Walker v. Baker, m, that where the

constitution gives a power and prescribes the means by

p. 4242

Honorable Bob Bullock - Page 19 (JM-872)

which or the manner in which it is to be exercised, such

means or manner is exclusive of all others. Article III,

section 1, of the constitution vests the legislative power

of the state "in a Senate and House of Representatives,

which together shall be styled 'The Legislature of the

State of Texas."' Sections 29 through 40 of that article

detail at great length the manner in which the legislature.

must exercise its right to legislate. Because the means

by which the legislature is to accomplish the enactment of

laws is expressly provided by the constitution, any

authority for the legislature to exercise that right in a

different mode is excluded. m Walker v. Baker, suvra:

American Indemnitv Comnanv v. Citv of Austin, 246 S.W.

1019 (Tex. Crim. App. 1922).

Accordingly, we conclude that the two amended

Education Code provisions are unconstitutional because

they attempt to confer upon members of the legislative

branch of government an executive power to efficiently

administer laws enacted by the legislature.

The restrictions in article II, section 1, apply, to

P a "collection of persons" of the legislative department.

It was held in Ex carte Younablood, 251. S.W. 509 (Tex.

Crim. App. 1923), that when a power conferred by the

constitution upon the~legislature or either branch thereof

is in turn conferred by the constitutionally designated

legislative body upon a committee composed of members of

the house and senate, the committee is a "collection of

persons" within the proscription of the foregoing consti-

tutional provision -- and one to which non-legislative

powers cannot be delegated. See also Walker v. Baker, 196

S.W.Zd 324 (Tex. 1946); Attorney General Opinions V-1254

(1951); o-4609 (1942). See also Anderson v. Lamm, 579

P.2d 620 (Colo. 1978); In re Ovinion of the Justices to

the Governor, 341 N.E.2d 254 (Mass. 1976): Bramlette v.

Stringer 195 S.E. 257 (So. Car. 1938); Peoole v.

Tremaine: 168 N.E. 817 (N.Y., 1929).

It has been suggested that Texas has adopted the more

modern view of the doctrine of separation of powers, which

permits cooperation between branches of government rather

than enforces a rigid separation between them. It is

contended that the older view, perhaps best exemplified by

Kilbourn v. Thomnson, 103 U.S. 168 (1880), has been dis-

carded in favor of a more flexible construction of the

constitutional provision. In Kilbourn v. Thomnson, w,

the United States Supreme Court set forth a classic state-

ment of the older construction:

p. 4243

Honorable Bob Bullock - Page 20 (JW-872)

It is believed to be one of the chief merits

of the American system of written constitu-

tional law, that all powers intrusted to

government, whether state or national, are

divided into the three grand departments of

government, the executive, the legislative,

and the judicial. That the functions

appropriate to each of these branches of

government shall be vested in a separate

body of public servants, anp that the

perfection of the svstem recuires that the

lines which sevarate and divide thes

deDartmentS be broadlv and clearlv defined:!

Jt is also essential to the successful

working of this svstem that the nersons

intrusted with Dower in anv one of these

branches shall not be oermitted to encroach

unon the oowers confided to the others. but

that each shall bv the law of its 'creation

be limited to the exercise of the vowers

xrouriate to its own deDartment and to no

Ethel;. (Emphasis added).

Id. at 190-191. A statement of.the more modern view was

well expressed in J. W. Hamnton. Jr. & co. v. United

States, 276 U.S. 394 (1928):

Our Federal Constitution and State

Constitutions of this country divide the

governmental power into three branches

. . . . [T]he rule is . . . in carrying out

that constitutional division into three

branches it is a breach of the fundamental

law if Congress gives up its legislative

power and transfers it to the President or

to the Judicial branch, or if by law it

attempts to invest itself or its members

with either executive or judicial power.

This is not to say that the'three branches

are not coordinate Darts of one government

and that each in the field of its duties may

not invoke the action of the other two

branches insofar as the action invoked shall

not be an assumvtion of the Constitutional

field of action of another branch. In

determining what it mav do in seekinq

assistance from another branch. the extent

p. 4244

Honorable Bob Bullock - Page 21 (JW-872)

and character of that assistance must be

fixed according to common sense and the

inherent necessities of the aovernmental

coordination. (Emphasis added.)

a. at 406: see also, y nastown Sheet 8 Tube Co. v.

Sawer, 343 U.S. 579 at 6:: (1952). But see, Singer, 2a

Sutherland on Statuto rv Construction, 53.07. The rule as

stated in Sutherland seems to be:

This interpretation of the doctrine permits

the exercise by one department of some

powers of the other departments when it is

essential to the discharge of a primary

function, when it is not an assumption of

the whole power of another department, and

when the exercise of the other power does

not jeopardize individual liberty.

Id. at 83.06 (and cases cited therein).

The'argument that. Texas adopts the more modern view

P

rests primarily upon language found in a case that

received no review by the Supreme Court, Coates v.

Windham, 613 S.W.Zd 572 (Tex. Civ. App. - Austin 1981, no

writ), which upheld an appropriations act rider that

conferred upon certain, specified public officers the

limited and negative power of declining approval of any

particular prison site proposed by the Department of

Corrections. The relevant passage provides:

We believe that it is well settled that this

constitutional prohibition [providing for

separation of powers] states a princivle of

government and not a rigid classification as

in a table of organization. This provision

must be interpreted along with other

constitutional provisions, and when this is

done it is clear that the Constitution does

three things: (1) it provides for three

polar functions of government; (2) it

delegates certain powers to each of the

three departments in a distribution of all

governmental powers; and (3) it blends

P

legislative, executive, and judicial powers

in a great many cases. [Footnote omitted.]

The proper interpretation of Article II,

section 1 is therefore dictated by its

context. The proper interpretation is that

this provision prohibits a transfer of a

p. 4245

Honorable Bob Bullock - Page 22 (JM-872)

whole mass of powers from one department to

another and it prohibits a person of one

branch from exercising a power historically --..

or inherently belonging to another depart-

ment. It may not be interpreted in a way

that prevents cooperation or coordination

between two or more branches of government,

hindering altogether effective governmental

action. It was designed, as were other

checks and balances, to prevent excesses.

(Emphasis in original).

613 S.W.2d 572 at 576.

For purposes of this discussion, we are not prepared

to accept the proposition that Texas adopts the more

modern, flexible construction of the separation of powers

doctrine, absent a definite ruling of the Texas Supreme

Court. We note that it is only under that construction

that article II, section 1, would permit the legislature,

or more specifically a joint interim committee thereof, to

'appoint the State Auditor, since the appointment power,

except for specific constitutional provisions reposing

such authority in others, is historically one that inheres

in the office of Governor. See, Walker v. Baker, w.

Because you do not ask about the constitutionality of the

statute pursuant to which the State Auditor is appointed,

we need not resolve that issue. But even this more

flexible construction will not permit the sort of

intrusion that the Education Code amendments contemplate.

In State Board of Insurance v. Betts, 308 S.W.Zd 846

(Tex. 1958), the court held that, in an instance in which

the attorney for a statutory receiver for an insurance

company resigned and the board of insurance commissioners

did not designate a successor, the district judge had

discretionary power to appoint an attorney for the

receiver, since he had judicial control or supervision of

the receivership case. The statute then in force

conferred appointment authority upon the board. The court

seemed to accept the modern construction of the separation

of powers principle when it rejected a challenge to the

judge's action under article II, section 1. But the court

stated, at 851-852:

-I

However the controlling factor in settling

the constitutional point presented is the

presence or absence of interference with the

effective judicial control occasioned by the

executive power to select a liquidator.

. . . It is onlv when the functioning of the

p. 4246

Honorable Bob Bullock - Page 23 (JM-872)

judicial orocess in a field constitutionally

committed to the control of the courts is

interfered with bv the executive or

legislative branches th t constitutional

problem arises. (Emphas?s zdded.)

Analogously, we conclude that the Education Code

amendments about which you inquire permit the legislature,

or more specifically an effective agent of a committee of

the legislature, to interfere with the proper functioning

of an executive branch agency in a field constitutionally

committed to its control, i.e. the proper execution or

administration of the law and the responsibilities duly

imposed upon it by statute. Our construction of article

II, section 1, and article III, section 1, suggests that

the State Auditor may. not constitutionally prescribe

accounting and record keeping procedures for all state

agencies. There is no question that the legislature is

authorized to prescribe the accounting and record keeping

procedures to be followed by state agencies. It is

doubtful, however, whether the State Auditor and the

Legislative Audit Committee may prescribe such procedures.

-

Although such authority has been conferred by statute

sinc.e 1943, general acquiescence in a custom which may not

have resulted in a harmful violation of the constitution

does not nreclude a contest when substantial rights are

insisted upon. Citv of Los Anaeles v. Los Anaeies City

Water Co., 177 U.S. 558 (1919). If it be urged that the

result that we reach here is unrealistic, impractical, and

inefficient, we note the words of the United States

Supreme Court in the recent case of Immiciration and

Naturalization Service v. Chadha, 462 U.S. 919 at 944

11983) fwhich held that the so-called "leaislative veto"

&an unconstitutional violation of the implied separation

of powers principle of the U.S. Constitution):

. . . the fact that a given law or procedure

is efficient, convenient, and useful in fac-

'ilitating functions of government, standing

alone, will not save it if it is contrary to

the Constitution. Convenience and efficien-

cy are not the nrimarv obiectives -- or the

hallmarks -- of democratic government. . . .

- We conclude that the Education Code provisions about

which you inquire interfere impermissibly with the proper

administration of the laws reposed by article II, section

1, in the executive branch. Accordingly, we conclude that

it is constitutionally impermissible for the legislature

to delegate to the State Auditor and the College

p. 4247

Honorable Bob Bullock - Page 24 (JM-872)

Coordinating Board the joint authority to promulgate

administrative rules.

You next ask:

Whether the State Auditor's authority as

legislative staff is similarly limited to

investigating matters that could lead to

legislation?

Assuming a 'yes' answer to my fourth gues-

tion, my fifth question is:

Since the Comptroller and nd the

Legislature has .been given constitutional

responsibility for the revenue estimating/

budget certification function, Tex. Const.

Art. III, Sec. 49a, and it is not clear what

legislation could constitutionally be

enacted controlling the manner in which the

revenue estimate for budget certification is

determined, whether the State Auditor has

authority to evaluate or inquire into how

the revenue estimating/budget certification

function is carried out.

Courts in this state long ago upheld the right of the

legislature, to appoint committees for the purposes of

conducting investigations and gathering information

regarding the possible enactment of legislation. Ex varte

Fercruson; 15 S.W.Zd 650 (Tex. 1929); Terre11 v. Kinq, 14

S.W.Zd 786 (Tex. 1929).

The legislature has the power to investigate

any subject regarding which it may desire

information in connection with the proper

discharge of its function to enact, amend or

repeal statutes or to perform any other act

delegated to it by the constitution. . . .

A legislature in conducting whatever ingui-

sitions the proper exercise of its functions

require, must be as broad as the subject to

which the inquiry properly entered into has

relation.

Mason, Manual of Leqislative Procedure, 9795 (1970). As

the Texas Supreme Court declared in Terre11 v. Kinq:

Not only does the Constitution, in the grant

of the rule-making power [by means of which

p. 4248

Honorable Bob Bullock - Page 25 (JM-872)

each house is empowered to organize itself],

authorize either-house to name such commit-

tees as it may deem necessary or proper for

purposes of investigation and inquiry, when

looking to the discharge of any legitimate

function or duty of such house, but the

Constitution goes further and makes

consideration by a committee, a condition

precedent to the enactment of any law.

Section 37, article 3.

14 S.W.2d at 789.

Generally, however, the legislative power to

investigate is not absolute, see, e.a., Gibson v. Florida

Legislative Investisation Committee, 372 U.S. 539 (1962);

State ex rel. Fatzer v. Anderson 299 P.2d 1078 (Kan.

1956) ; Commonwealth ex rel. Car&i v. Brandamore. 327

A.2d 1 (Pa. 1974). and it has been held to be lim ited to

the obtaining of information on matters that fall within

the proper field of legislative action. See.e.a.,

Ferrantello v. State, 256 S.W.Zd 587 (Tex. Crim. App.

1952); State ex rel. Fatzer v. Anderson, sunra; Common-

wealth ex rel. Carcaci v. Brandamore, suora. The powers of

an investigating committee, subject to limitations on the

investigating power of the legislature, are in general as

broad as the resolution constituting it. Ex narte Wolters,

144 S.W. 531 (Tex. Crim. App. 1912).

It is a principle of constitutional law that

where there is a grant of power in the

Constitution to a department of Government,

or to a constitutional or statutory officer,

or tribunal, without defining the manner or

form in or by which it is to be exercised

and carried into effect, the Legislature may

legitimately prescribe reasonable rules by

which this may be done. And though such

power may not be taken away by the Legisla-

ture, and should it fail or refuse to

legislate so as to provide for the efficient

use and exercise of the power, the depart-

ment , officer, or tribunal to whom it is

P

delegated might possibly act in accordance

with its own discretion, yet when the

Legislature has made reasonable and

appropriate provisions for its proper

exercise, it should and will be exercised in

conformity with such provisions.

p. 4249

Honorable Bob Bullock - Page 26 (JM-872)

Austin v. Gulf. Colorado. and Santa Fe Railroad Co., 45

Tex. 234, 265 (1876). But it is in no way certain that

article III, section 49a, fails to set forth the manner or

form by which you are required to perform your duty. See.

-, Attorney General Opinion WW-640 (1959) (holding

unconstitutional in part the predecessor statute to

article 4348a, V.T.C.S., now codified as Government Code,

§5403.013, 403.121-403.122). This. office declared in

Attorney General Opinion JM-666 (1987):

In Attorney General Opinion WW-640

(1959), Attorney General Will Wilson

considered the constitutionality of a bill

that, among other things, attempted to

control the Comptroller's estimates of the

outstanding but undisbursed appropriations

to be expected at the end of a biennium.

The opinion concluded, 'Insofar as this bill

attempts to make estimates it is unconstitu-

tional as a legislative invasion of the

duties of the comptroller.'

The bill at issue there, with the offend-

ing provision 'making estimates1 deleted,

became article 4348a, V.T.C.S., still

extant. The remainder of the bill, in the

form it was considered by Attorney General

Wilson, was characterized as an instruction

to the Comptroller 'to use the cash

accounting basis' and was pronounced

constitutional inasmuch as, according to the

opinion:

Reading Section 49a of Article III from

its four corners, it is our opinion that

this constitutional provision contem-

plates that the Comptroller, in making

his estimate for certification of bills,

use the cash accounting method.

Thus, article 4348a. V.T.C.S.. is to be

read not as a legislative mandate defininq

the Dower of the Comntroller under section

49a with resoect to certifications or esti-

mates made for the ourvose. but. rather. as

a direction that he conform to the reciuire-

ments of section 49a itself bv usina the

cash accountins method in arriving at his

estimates for that nurnose. (Emphasis

added.)

p. 4250

Honorable Bob Bullock - Page 27 (JM-872)

For purposes of this opinion, we accept the assertion

that the means and manner by which you must perform the

budget certification/revenue estimate certification

processes are set forth in the constitution with suffic-

ient specificity such that the legislature is without

authority, absent a constitutional amendment, to direct

you in the manner in which you carry out your constitu-

tional responsibilities. It necessarily follows that the

legislature is without authority to inquire into the

manner and method by which you arrive at the budget

certification/revenue estimate figures, if the purpose for

which it seeks the information'is to enact legislation.

But, article XVII, section 1, of the Texas Constitution

reposes in the legislature the sole authority to propose

amendments to the constitution; the issue then focuses

upon the authority of the legislature to inquire into the

manner and method by which you perform your constitutional

duties if such inquiry is done in aid of determining the

need for any such amendments.

We are not unmindful of the importance of this

question: indeed, it goes to the very heart of the nature

of the kind of government that we have. Texas, unlike

many states; sets forth in its constitution the duties and

responsibilities of many of its state officers. If we

permit the State Auditor and the Legislative Audit Commit-

tee, under the guise of performing "economy and efficiency

audits" or "effectiveness audits" to inquire into the

manner by which you perform the duties reposed in you by

the constitution of this state, we perforce would have to

permit such an E'audit@'inquiry into the manner in which

other constitutional officers perform their constitutional

duties. We would have to permit the Legislative Audit

Committee and the State Auditor to inquire into the manner

by which the Governor exercises his appointment power and

his authority to veto legislation. We would have to

permit the Legislative Audit Committee and the State

Auditor to inquire into the manner in which the justices

of the Texas Supreme Court and the Texas Court of Criminal

Appeals administer their respective caseloads and deliber-

ate and arrive at their decisions. We would have to

permit the Legislative Audit Committee and the State

Auditor to inquire into the manner in which the Attorney

General advises and represents state agencies.

We do not resolve here the issue as to the scope that

any such legislative inquiry could possess. We think that

your question raises the significant issue as to whether

the direction or guidance instructing any such investigat-

ing committee must be reasonably specific and whether any

p. 4251

Honorable Bob Bullock - Page 28 (JM-872)

resolution constituting such investigation must be

inveighed with sufficient dignity to convey the extreme

significance of what is undertaken. We question whether a

mere decision by the State Auditor and the Legislative

Audit Committee to so investigate, under the guise of

conducting an "economy and efficiency audit" or an

"effectiveness audit," is sufficient. We need not,

however, determine whether the State Auditor and the

Legislative Audit Committee may conduct an "economy and

efficiency audit" or an "effectiveness audit" for the

purpose of making an inquiry into the manner in which you

perform the duties reposed in you by the Texas

Constitution. We need note only that nothing in the

Government Code purports to confer such authority in the

first place. Subsection (e) of section 321.013 permits

the Auditor to examine, for example, whether subscription

material exists, but not the use to which it is put. Nor

does it authorize an inquiry into discretionary decision-

making by you that is personal to you as a constitutional

officer. We add that the Legislative Audit Committee, of

course, has no authority to direct you in the manner in

which the budget certification/revenue estimate figures

are derived.

Finally, you ask whether the State Auditor has the

. authority to direct an executive agency or officer to seek

amendments to the laws or to evaluate the agency or

officer on the basis of whether such amendments are

sought. The answer to your question is clearly %o."

It is well established that a state agency has only

those powers expressly granted to it by statute or

necessarily implied from the statutory authority conferred

or duties imposed. Citv of Sherman V. Public Utilitv

Commission, 643 S.W.2d 681, 686 (Tex. 1983); Stauffer v.

Citv of San Antonio, 344 S.W.Zd 158, 160 (Tex. 1961);

Attornev General Oninions JM-452 (1986); JM-256 (1984) ;

MW-532 (1982); V-5Oi (1948); 0-4260‘(1942): O-3536 (1941j.

We need not address whether any statute constitutionally

could confer such authority on the State Auditor, because

we conclude that no statute purports to do so. We have

found no section of the Government Code nor any other

statute that purports to confer such authority upon the

State Auditor; accordingly, he has none.

p. 4252

Honorable Bob Bullock - Page 29 (374-872)

SUMMARY

1. No provision in chapter 321 of the

Government Code, which sets forth the duties

of the State Auditor and the Legislative

,.Audit Committee, purports to confer

authority on the committee to direct

executive agencies in the manner in which

they execute or administer the laws.

2. No provision in chapter 321 of the

Government Code purports to confer authority

on the State Auditor to direct executive

agencies in the manner in which they execute

or administer the laws.

3. Sections 51.005 and 61.005 of the

Education Code are unconstitutional insofar

as they purport to confer authority on the

State Auditor to promulgate rules jointly

with the College Coordinating Board.

4. Legislative committees properly may

gather information and conduct investiga-

tions upon any matters about which legisla-

tion may be enacted.

5. Because the Texas Constitution

reposes in the legislature sole authority to

propose constitutional amendments, legisla-

tive committees may gather information and

conduct investigations in aid of such auth-

ority. However, it is questionable whether a

mere decision by the Legislative Audit

Committee and the State Auditor to so

investigate, under the guise of conducting

an "economy and efficiency audit" or an

"effectiveness audit," is sufficient to

permit such a serious intrusion into the

performance of constitutionally imposed

duties as is here contemplated by an inquiry

into the methods and means whereby you

derive the budget certification/revenue

estimate figures. This issue need not be

decided, because nothing in the Government

Code purports to confer the authority to

conduct such an inquiry in the first place.

The Legislative Audit Committee may not

direct the manner in which the Comptroller

derives such estimates.

p. 4253

Honorable Bob Bullock - Page 30 (JM-872)

6. The State Auditor possesses

authority either to direct an executitz

agency or officer to seek amendments to the

laws or to evaluate the agency or officer on

the basis of whether such amendments are

sought.

JIM MATTOX

Attorney General of Texas

MARY KELLER

First Assistant Attorney General

IOU MCCREARY

Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Committee

Prepared by Jim Moellinger

Assistant Attorney General

p. 4254