Untitled Texas Attorney General Opinion ( 1979 )

. .- .
The Attorney General of Texas
October 16, 1979
MARK WHITE
Attorney General
Honorable Charles D. Travis Oplnion No. MW-7 0
Executive Director
Texas Parks & Wildlife Department Re: Whether the state may con-
4200 Smith School Road tract to operate and maintain for
Austin, Texas 70744 an indefinite period recreational
facilities developed In a federally
owned park.
Dear Mr. Travis:
You inform us that the Parks and Wildlife Department has negotiated a
cost sharfng agreement with the United States for recreational development
of federally owned property. Under the proposed agreement, the state
would lease the property for an indefinite period. The federal government
requires the state to amume responsibility for operating, maintabdng, and
replacing all recreational facilities developed on the leased premises. You
wlvh to know whether you may unconditionally promise to pay the operation
and maintenance costs for an indefinite period into the future.
Parks and Wildlife has authority to rpend state funds to build facilities
on land owned by the federal government. See V.T.C.S. Parks h Wild. Code
SS 13.301- 13.313; Attorney General Opinion=257 0974). The expenditures
are made from the Texas Parks Fund established pursuant to section 3 of
article 7.06, Taxation-General, V.T.C.S., and appropriated by the legislature
for purposes stated in that statute. _See Attorney General GplnIons H-575
(l975); Ii-257 (1974); M-ll64 0972,.
Article VllI, section 6 of the Texas Constitution provides that no
appropriation may be made for a period longer than two yeara The state
may not as a general matter contract on ths basis of anticipated revenues
beyond the two year period. See Fort Worth Cavalry Club v. S
S.W.2d 660 (Ten. 1935); AttoKy General Opinions V-291 (
09391. Article III, section 49 of the constitution prohibits the state from
creating debts and also prevents contracting on the basis of anticipated
revenues.
It lo, however, possible for the state to, enter into a contract for a
period longer than two years See enerall S. Susman, Contract
State of Texas-Fiscal and Constitutmnal
%mitations, e
p. 215
L -
Honorable Charles D. Travis - Page TWO (IS+70)
140 fl9651. It mav enter Into a reouirements contract, where it does not commit itself in
advanaa
--.-.-- ta
-- mweha.se am
--a
amount
-------
rk
_- the
_..- commoditv
-_....... ``~ or-to
`` aumooriate
. anv funda See Citv
of Big Spr&-v%ard of Control, 404 S.W.2d 610 (Tex. 1966h &&es Scribnerb G%
v. Mans. 262 S.W. 722 (Ten. 19241, Since no obligation to ps-n arises until the goods are
deli vered, this kind of contract d&s not commit appropriated fun&I for longer ?han two
years. Obligations that run current with revenues are not debts within the constitution
and thus do not violate article Ill, section 49. In addition, the state may obligate revenues
which do not go through the appropriations procem for a period longer than two years.
Friedman v. American Surety Co. of New York, 151 S.Wfd 570 (Ten. 194l)i Attorney
General Opi i O-l694 0939). The state may also enter into a binding contract Involving
the expend&z of appropriated funds for longer than two years where payment is
conditioned wn the availability of appropriated funds.
S 5(h); Attorney General Opinions M-253 (1966); M-39
the amount of the state’s obligation can be ascertained at the inception of the contract, it
may psy the entire consideration in advance. Attorney General Opinions C-134 fl963);
O-6246 (19441.
If your proposed contract conforms to any one of the methods discussed above, you
may enter into it for a period of more than two years, but you may not enter into a
contract that unconditionally promises to make expenditures from funds to be
appropriated in the future.
SUMMARY
The Department of Parks and Wildlife may not enter into an
unconditional contract to make expenditures from funds to be
appropriated in the future. However, there are procedures by
which the Department may enter into contracts with terms
exceeding two years.
MARK WHITE
Attorney General of Texas
.JOHN W. I’AINTRR, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
P. 216
Honorable Charles D. Travis - Page Three (l4W-70)
APPROVRD:
OPINION COMMI’lTEE
C. Robert Heath, Chairman
David B. Brooks
Bill Campbell
Susan Garrison
Rick Gllpin
Les Kix
William G Reid
Bruce Youngblood
P. 217