Untitled Texas Attorney General Opinion ( 1952 )

I
,
TEE A”JTOISNEY GENERAL
OFTEXAS ,
January 29, 1952
Hon. 0. B. Ellis Opinion No. V-1397
General Manager
Texas Prison System Re: Legality of paying for
Huntsville, Texas the services of an erec-
tion supervisor from
funds appropriated for a
prior fiscal year under
the submitted facts.
,
Dear Sir:
Your request for an opinion reads, in part, as follows:
“The Texas Prison System has presented to the
Comptroller of Public Accounts for approval two
vouchers totaling $600.00 in payment of services of
an erection supervisor who was in charge of instal-
lation of steel doors and other steel equipment in the
Ramsey State Prison Building. Approval of these two
vouchers was refused by the Comptroller of Public
Accounte on the grounds that a contract for personal
service cannot extend beyond the life.of an appropri-
ation.”
You then ask if ~the Comptroller of Public Accounts has
authority to issue warrantrr to cover the services of the erection
supervisor. The parts of the contract entered &to for the Prison
System by the Board of Control for the ‘erection of cell fronts and
doors in a new building at Ramsey State Farm, pertinent to this
inquiry are:
“(d) Erection Supervisor to be furnished by Prison
hquipment Contractor.
“The Prison Equipment Contractor shall furnish the
services of one (1) Erection Supervisor, skilled in the
erection and thoroughly informed on all details concern-
ing the installation of Prison Equipment. The services
to be rendered shall be exclusive and uninterrupted for
two separate periods of time, the total of,which shall
not exceed twenty weeks when the Prison Equipment in-
cluded in this contract is being installed inthe buildings.
.
Hon. 0. B. Ellis, Page .2 (V-1397)
The Erection Supervisor shall direct and super-
vise the installation work. The Owner shall in-
stall the Prison Equipment with inmate labor,
without cost to this Contractor, in accordance
with the directions furnished by the Prison Equip-
ment Contractor. The Erection Supervisor’s time
shall not start until Prison Equipment Contractor
has all necessary tools and equipment for the in-
stallation of the equipment at the job site.
“If Owner desires the services of the Erection
Supervisor for more than two periods totaling twenty
weeks, the Prison Equipment Contractor shall be
paid $100.00~ per week to cover these services, in-
surance, and wear and tear and use of tools for such
additional time as the Owner shall require.
“The Erection Supervisor shall check all doors,
door frames and construction work affecting the
proper installation and/or operation of the Prison
Equipment and shall further see that the operating
mechanism is properly installed, is in accurate
alignment, rigidly secured and that it functions in
a satisfactory manner.”
The appropriation from which you wish to make the
payment in question is Item 84 of the appropriation made to The
Texas Prison System by Senate Bill No. 391, Acts 50th Leg.,
1947, ch. 400,p. 899. The item reads as follows:
“84. Construction during biennium of cell
blocks, ~buildings, improvements, and engineering
and architectural fees, such fees not to exceed 5%
of net cost of project . , . $600,000.00.”
No appropriation of State funds may be made for a term
of more than two years. Tex. Const. Art. VIII, Sec. 6. Moreover,
the biennial appropriations are actually two separate annual appro-
priations. It is well settled that money appropriated to a State de-
partment or institution for supplies must be used during the fiscal
year for which it was appropriated. Att’y Gen. Ops. O-2380 (1940);
0-6Oll (1944); Q-6883 (1945). Likewise, personal services must be
purchased with current appropriations. Att’y Gen. Op. O-2815
(1940).
However,, it is equally well settled that an exception to
this rule is made in the case of capital expenditures. Att’y Gen.
Ops. O-2631 (1940); V4139 (1950). Regarding this exception, it
was said in Opinion O-2631:
Hon. 0. 8. Ellis, Page 3 (V-1397)
“With respect to those suppltes. or things
which, as you state, might be termed ‘a capital as-
set of the State,’ the rule is that such supply or fix-
ture may be purchased and paid for out of the ap-
propriation for any year of the biennium for which
an appropriation has been made. Fixtures, equip-
ment and supplies whatsoever that do not perish
with their use, but which may be continuously used
after the year in which they are,purchased, are not
governed by identical principles applicable to those
supplies which are consumed with their use. Thus,
machines, fixtures, books, and the like, are not con-
sumed during the year they arc purchased, but they
last for many years. Such ‘capital assets’ of the
State may therefore be purchased and paid for out
of the appropriation for any year of the biennium
for which an appropriation for such article has been
made. This is true regardless of the year in which
the delivery is made, since the purchase during the
proper year amounts to an expenditure or commit-
ment of the appropriation for that year,”
Clearly, the steel prison equipment which was pur-
chased under the contract in question is a “capital asset of the
State.” Therefore, if that portion of the contract calling for
the services of an erection supervisor is ancillary to the main
purpose of the contract for the purchase of a capital asset and
not a separate contract for personal services, this expenditure
unquestionably may be made.
A written contract should not be considered piecemeal;
rather it must be construed as a whole. No single phrase, sec-
tion, or clause should be isolated from its setting and considered
apart from the other provisions of the contract. Guardian Trust
Co, v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579 (m). Whether
a contract is divisible or entire depends primarily upon the in-
tention of the parties, Frankfurt Finance Co. v. Treadway, 159
S.W.td 514 (Tex.Civ.App. 1942, error ref. w.o.m.).
The intention of the parties to this particular contract
is to be found in the clear and explicit language of the instrument.
The erection supervisor is to be furnished by the equipment eon-
tractor, not employed separately by the Texas Prison System. He
is not to be the direct recipient of State funds. On the contrary,
the contract provides that the payments in question are to be made
to the contractor. Furthermore, it is expressly’stated that these
payments are to be used to defray other costs )juch as insurance
and the depreciation of equipment, in addition to compensating the
erection supervisor, His services are indispensable to the com-
pletion of the project, and, as the final inspector of the installation
, ’
Hon. 0. B. Ellis, Page 4 (V-1397)
work, they cannot be rendered until the installation is complete.
We are of the opinion, therefore, that the provision regarding
the services of the erection supervisor is not a separate con-
tract, but merely a part of the entire contract for the purchase
and installation of steel prison equipment.
We do not feel that Att’y Gen. Op. O-2815 (1940) con-
trols the instant situation. There the question was simply one
of the legality of a State agency paying, during one fiscal year,
the salary of an employee out of an appropriation for a former
fiscal year. In the words of the author of that opinion, “there
has been no contract whatsoever binding, or attempting to bind,
such preceding year’s appropriation.” In the present case, the
Texas Prison System is not paying the supervisor’s salary; it
is paying the contractor for his services. The questioned pro-
vision is an integral part of a contract for the purchase and in-
stallation of steel prison equipment, and the facts that confront
us are not at all analogous to the circumstances which gave rise
to this opinion in 1940.
The services of the erection supervisor being an es-
sential portion of a contract for the installation of a “capital
asset of the State,” we are of the opinion that the Comptroller
of Public Accounts is authorized to issue warrants to the prison
equipment contractor for his services.
SUMMARY
The Texas Prison System may, from an appropri-
ation covering the cost of installing steel prison equip-
ment, pay for the services of an erection supervisor
furnished by the contractor under the provisions of a
contract for the installation of the equipment entered
into prior to the close of the period for which the ap-
propriation was made.
APPROVED: Yours very truly,
David 8. Irons PRICE DANIEL
Administrative Assistant Attorney General
E. Jacobson
Reviewing Assistant By h-6 &--‘- .cYJ?\ I
Charles D. Mathews
Calvin B. Garwood, Jr.
Assistant
1
First Assistant
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