Untitled Texas Attorney General Opinion ( 1951 )

Hon. John H. Winters
Executive Director
State Department of Public Welfare
Austin, Texas
Opinion No. v-1357.
Re: Availability of funds appro-
priated to the Waco State
Home in the general approprla-
tion bill for the rental of
pasture land and for the pur-
chase of livestock for the bi-
Dear Sir: ennium ending August 31, 1953.
You have requested the opinion of this of-
fice relating to the authority of your department to
expend certain moneys appropriated to the Waco State
Home in the general appropriation bill for the bien-
nium ending August 31, 1953. Your specific questions
are as follows:
(1) Is there an appropriation to the
Waco State Home which may be expended for
the rental of 200 acres of pasture land?
(2) Is there an appropriation which
may be expended for the purchase of cows
ma a bull for the dairy herd?
In 1951 the Legislature transferred the con- I
trol and supervision of the Waco State Home from the
Board for State Hospitals and Special Schools to the
Department of Public Welfare. This act provides In
part:
“Sec. 5. The State Department of
Public Welfare is hereby directed to set
up a school and training program for the
children in the institution named in this
Act so as to enable the children to become
self-supporting through training and edu-
cation in accordance with the capability
Hon. John H. Winters, page 2 (V-1357)
of the individual child. Such training
program may be set up within the insti-
tution or it may require maintenance and
support of the children in one of the
State institutions of higher learning.
The moneys appropriated for the mainten-
ance and support of the institution may
be used for this purpose in accordance
with rules and regulations and limlta-
tions as prescribed by the State Depart-
ment of Public Welfare.
“Sec. 6. Nothing in this Act shall
be construed to delimit the responslblli-
ties of the institution named herein for
the care of the children entrusted to it
as provided in the General Statutes creat-
ing the institution and as provided in
subsequent amendments prescribing the du-
ties and responsibilities of the institu-
tion for the care of such children.” H.B.
540 Acts 52nd Leg., R.S. 1951, ch. 485,
p. 860.
The following line item appropriations to
the Waco State Home (H.B. 426, Acts 52nd Leg., R.S,
1951 ch. 499, p. 1228, at ,p. 1273) are necessarily
involved in a determination of the questions asked:
“For the Years
Ending
August 31, August 31,
1952 1953
27. Stationery, printing,
gasoline, 011, grease,
recreation, amusement,
drugs, medical, hospi-
tal and laboratory
supplies, clothing,
dry goods furnishings,
feed, see d , groceries,
meats, perishables,
and miscellaneous sup-
plies (out of General
Revenue Funds) $112,700.00 $112,700.00
Hon. John H. Winters, page 3
30. Bond premiums, post-
age, telephone tele-
graph, heat, ljght,
water power and
trave i expenses, out
of local funds 14,500.00 14,5oom
31. Maintenance and re-
pairs, out of local 10,000.00 20,000.00
funds
32. Capital Outlay--Im-
provements and Equip-
ment, out of local
funds 6.000.00 2.OOO.OQ
33. Total--Out of Local
Funds 30,500.00 36,500.00"
Both of your questions are related to the
authority of the Home to acquire and maintaina dairy
herd for the use and benefit of the children of the
Home. The authority of eleemosynary Institutions to
maintain dairy herds or carry on other agricultural
pursuits for the purpose of economical operation as
well as providing constructive labor and vocational
instruction for inmates of the institutions is well
established. Att’y Gen. Ops. O-2738 (1940) and O-5439
(1943).
The Waco Home has maintained a dairy herd
for several years for the benefit of the Home and
since 1945 has rented the pasture land here involved.
That the Legislature approved the maintenance of a
dairy herd Is shown by the fact that in 1949 it appro-
priated $lO,COO to be expended for an addition to and
equipment for a creamery. H.B. 321 Acts 51st Leg.,
R.S. 1949, ch. 553, p. 1068 at p. $075. You state
that on September 1, 1951, ihe Comptroller approved a
warrant for a pasture rent Installment and charged it
to the appropriation in Line Item 27, sunra. In prior
years the Comptroller has approved the pasture rental
warrants, although there has never been a specific
“pasture rental” appropriation. This past department;
al construction has oersuasive value. Isbell v. ~Gulf
Union Oil Co., 147 Tex. 6, 209 S.W.2d 7'62 (1948).
However, you state the Comptroller Is now of-the opln-
ion that there is no appropriation from which the pas-
ture rental may be paid.
Hon. John H. Winters, page 4 (V-1357)
You state that the 200 acres of pasture
land are necessary to maintain a herd which will
supply sufficient milk and milk products for the
normal requirements of the Home and that these
products are necessary to the health and welfare
of all the children in the Home.
In view of the above facts, we must as-
certain if any of the line Item appropriations to
the Waco State Home may be expended for pasture
rental.
Section 10(d) of the General Provisions
following the appropriations to the various State
hospitals and special schools provides:
l’(d) All items herein appropri-
ated to the several institutions in-
cluding the Central Office, for bond
premiums, post office box rent m
rental, postage, telephone, telegraph,
heat, water, light, power, travel ex-
penses, maintenance of structures and
equipment, and capital outlay expendi-
tures for improvements ana equipment,
shall be paid from the Board Local
Fund. It is further provided that the
items herein enumerated shall not be
supplemented from any other funds ap-
propriated in this Article, except as
provided in Section 7(a) and (b) and
Section 9, as provided in this Article.”
(Emphasis added.)
It will be noted that the appropriations
out of local funds, Line Items 30, 31, 32, sunra, do
not include a “land rental” appropriation. There-
fore, the rental expense cannot come from local funds.
Unless Line Item 27, subra, makes provision for the
payment of pasture rental, there Is no appropriation
from which pasture rental may be paid.
The only categories in Line Item 27 which
might include pasture rental are “feed” and “miscel-
laneous supplies.” l’Pasturage’l is a proper, but now
obsolete, meaning for the noun “feed.” Webster’s New
International Dictionary (2d Ed. 1938). Article 5502,
V.C.S., gives livery stable owners a lien for “feed”
and also a lien for “pasturage.” However, this dis-
tinction is not controlling here, since it grew out
.
Hon. John H. Winters, page 5 (v-1357)
of the common-law theory that a livery stable owner
did not hava an agist-er’s or ‘“pasturage” lien. 3
C.J.S. 1118, Animals, Sec. 21. This statute was
adopted to give a liens in either s.ituation. In a
situation other than for the enforcement of a stat-
utory lien, which is to be strictly construed, the
word llf eed” might includes “pasturage.” El Paso Cat-
L n Co. of El Paso. Tag.. v. Bug&, 228 Pac.
(ir Mex. Sup. 1924).
The other category, “miscellaneous .mJpplies,ll
is one of a.very general nature, Its inclusiveness
depending primarily upon the history, fact situation,
and type of.buslness’or operation in connection with
which, it is used. Conner v. Littlefield, 79 Tex. 76,
I5 S.W. 217 (1890). Our’Texas courts have approved
the following, definition of l’supplylt: “One def inl-
tion of ‘supply1 is to ‘furnish with what is wanted.’
Webster’s Dictionary. Other definitions are: ‘AWIl-
able aggregate of things needed or demanded; . o .
anything yielded or afforded to meet a want; the act
of furnishing what is wanted. I 37 cyc. 607." Qp
ton Brldseuort Mach. CQ., 33 S.W.2d 787, 789
(Texy&v.App. 1930, error ref.). The provision is
thus seen to be very broad and general, but it was
intentionally made so by the Legislature so that the
‘necessary items for the health, welfare, and school-
ing of the children in the Home could be purchased
when the need for the. items arose and such items were
not within some other specific appropriation.
From the foregoing, we think the Leglsla-
ture, Intended for the pasture rental to be paid from
Line Item 27 funds. In view of the past history of
the Waco State Home’s maintenance of a dairy herd, of
the creamery building and equipment appropriation,
and the departmental construction which authorized
the issuance of warrants for the payment of pasture
rental we can not hold that the Legislature has
change d its policy upon the sole basis of its failure
to make a specific “pasture rental” appropriation,
there having been no prior practice so to specify,
The answer to your second question depends
upon whether livestock may be purchased from either
Line Item appropriations 31 or 32, sunra. Section 10
(d) sunra, of the General Provisions provides in
par 4..
Hon. John H. Winters, page 6 (V-1357)
n . . . maintenance of structures
and equipment, and capital outlay ex-
penditures for improvements and equip-
ment, shall be paid from the Board Local
Fund.”
This definition more specifically enumer-
ates the Items for which Line Items 31 and 32 may
be expended, and by its terms eliminates the possi-
bility that livestock may be purchased from Line
Item 31 maintenance funds. However, we are of the
opinion that Line Item 32 funds may be expended for
livestock necessary to develop a herd capable of
producing the milk necessary for the requirements
of the Home. The dairy herd is a permanent asset
and therefore a capital asset of the Home, and the
contemplated expenditures are, in our opinion, wlth-
in the scope of the capital outlay appropriation.
The appropriation made to the Waco
State Home by Line Item 27 (H.B. 426,
Acts 52nd Leg. R.S. 1951, ch. 499, p.
1228 at p. l2+3) may be expended for
“pas i ure rental,” and the a propriation
made by Line Item 32 (H.B. f:26, supra,
at p. 1273) may be expended for the pur-
chase of livestock necessary to develop
a dairy herd capable of supplying the
needs of the Home.
Yours very truly,
APPROVBp
: PRICE DANIEL
Attorney General
C. K. Richards
Trial & Appellate Division
Jesse P. Luton, Jr. By I: v$$*u
Reviewing Assistant E. Way Thode
Assistant
Charles D. Mathews
First Assistant
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