Untitled Texas Attorney General Opinion ( 1965 )

December 3, 1965
Honorable Robert 8. Calvert Opinion No.
. C- 557
Comptroller OS Public Acoounta-
Austin, Texas Rer Whether the purchase of
refrigerators, ranges,
slnke,~ a combination of
the three, perculatore,
cupe, and the like need
statutory pre-exlstlng
law to be paid out of ..
funds ln the. State Trea-
Dear ‘Mr. Calvert t sury and ,related queatlona.
You have requested td opinion of this office concerning
the following queetlonss
“1. Please advise if the purchase of ‘
refrigerators, ranges, sinks, a comb&&Ion
of the three, perculatora, cups, and etc.,
need statutory pre-exlating law to be paid
out of funda.lri the State Treasury.
“2. If you find that statutory law is ’
not required, are the ltqna listed payable out
of this type of appropriations or does their
payment require a; specific appropriation?
a. ‘Consumable auppll~a and materials,
current and recurring operating expenses (ex-
cluding travel expense) and capital outlay.’
b. ‘For payment of salaries and’other
necdaa~y expenses ln carrying out the rovlalona
of, (Statutotiy Acts creating the agenoy P .’
“3. If. you find that the accounts ‘in
question oan be.lqally~pald, please advise It
.lnvolcea’ for consumable supplies necessary for
the operatlon,of the purchased Items may be
pa,id. out of the appropriations quoted under
question #2?”
-26921
7
lion; Robert S. Calve&, page 2 (C- 557)
In addition to the foregoing, you have also stated In your
letter that various State ageticle? ,or de’partmeri$a seeking to.
purchase such equipment as refrigerators, ranges, sinks, ‘per-
culato?a &rid cups, have given as their readon why such equlpmen
should be considered neceadary In car’rylng out the statutory
duties of the agency the explanation that:.
“The existence of the equlpmi3nt makes it
poaalble for the State to gain more hours of
prod.uctive work. The ,~mployeea are on stall at
all time‘s and work man{ nights and weekends as
the situation demands.
In regard to the first question posed’, pertaining to
the necessity of pre-exlatlng law to purchase such Items as
refrlgeratora,~rangea, sinks, perculatora and cups with funds
paid out of the State Treasury, Section 44 ~f.Artlcle III of the
Constitution of Texas provides In pert that:
“’ “The Legislature shall provide by law
for the’ compensation of ill officers, servants,
agents aqd public contractors, not provided for
in t&a Constitution, but shall not gran$. bxtra
compenaatlon to any tifflcer, agent, ~aervant, or
public contractora, after such ptibllc service
shall have biien D&formed or contra& entered
Into, for +he pei.?oriance of the same; tnor fgrantr
by approprlatlon or otherwise, enyanoun o
money out of the Treasury of the State, to q
‘indlvldual, on a claim, real or pretended, when
the same shall not have been provided for by
pre-exlatlng law; nor ,employ any one in the
name of the State, unless authorized by pro’
existing law. ’ .(Emphaala idded).
The foregoing constitutional provision haa ~bt$encon&fied by
the Courts of thib State to mean that the Legislature cannot
appropriate State money to any individual unleaa at the tiZ
the .aooroarlatlon la made there la already a force home vall"
law cbnatitutlng the alalm the appropriation I,@ made .to pti a
legal and valld’obllgatlon of .the State. Austin National-
v. She a+di~l23’T&x. 272, 71 S.W.2d 242 (1934 C I
-8 v. Sheppard, 123 Tex. 352, 71 s.wi:d’-%-?%)~
Port Worth Cavalry Club v. Sheppard, 125 Tex. 3 g 83 S.w.2d
bO (1933) . St ate v. Steck company, 236 S.W.2d 366 (Tex.civ*APP*
1951, erro: ref.):
Cotii&utntly, .for’a State agency to purchase refrig’
eratora, ranges* .alnka, perculatora, cupa_ end the like there
muat first be a pre4xiatlng law which would authorize au+ .i
i
..
-2693-.
:Eon. Robert S. Calvert, page 3 (C-557)
purohaaea;,and aecpndly, there must be an appropriation to the
State agency of funds out: of which such purcharea could be made.
III Attorney Oeneral’a Opinion No. c-546 (1965), it
was held thetr
(I
‘the authorlzatlon to the Texas State
Board ~S’Reniatration for ProfessIonal Enulndera.
as well aa to oth& state agencies and dO&UtmeniS,
to maintain end oDerat offloe faeilltle8 eaITit(l.
with it ‘the flmttik authcirlzatlon to furnish thee6
office facllltlea ,wlth BUch e i ment, furnlahlnga
aria decor as it a&es fit, wi~imita of its
approprlatlona. . . .* (Emphasis added).
In view oi the foregoing, we are of the opinion that
,there exists aurriclent pre-exlatlng law to authorize State
,agenclea end departments t6 purchase such refrlgeratora, ranges,
sinks, perculatora, cups and the like as such agency or depart-
ment sees fi.t, within the limits of lta apprdprlatlona.
,Your .next question pertains to whither the purchase
of auoh, lteme 88, refiigeretora, ranges, aUka, perculatora end
cups by a State agency or, department must be payable out of a
speblfic apprbprlatloh or whether such purchases may be paid
out of appropriations for the SollowIng:
“Consumable supplies end materials,’ current
and recurring operating expenses (excluding travel.
expense) and capital outlay.
We are of the opinion that the purchase of &uoh Items
as listed above could be paid out of a apeclflc approprlatlon .
fork the purchase of such Items, or In the alternative such Items
Wuld be purchased from available funds In either of the fore-
going type@ of appropriations quotad above. The purchase of
refrigerators, ranges, t+&e, perculatora end oupa would cer-
tainly fall’wlthln the terminology “capital outlay” or “other
neceaaery 0xpen808,” aa used in the foregoing examples.
Your last question pertains to whether consumable
~ppllea necessary for the operation of refrigerators, ranges,
8lnka, perculatotiti and oupa may be purchased out of the ap-
Propriatlon examplba quoted ln connection with your aeaond
Weatlon end set forth heretofore.
.-
Ron. Robert 9. Calvert, page 4 (C-5571
In answer to this question, it should first be. nom.
ti+t there’could well be two types of consumable auppl$ea urd
in connect:on with refrigerators , rengea~ sinks, peroulatorr
end cupa. The SIPat type OS con’aumeble auppllea would be thaw
used for the aare end maintenance of the equipment sought to b
.pur&haaed--soap, dish towels, end the like.. The second type ef
coneumableauppllea’ would be thoa’e~used while making use of a
equipment sought to be purchased --rood, coffee, cream, sugar
end the like.
The first of these types of consumable supplies--tboc
.uaed f&r the care’ end malntenence of. the.refPlgeratora, range&
sinks, peroulatora end cups--would certainly $a11 within en 8a~
thorlzed expenditurefrom either of the types of approprlatia.,
examples referred to In your second queatlon. This tpe o?
purchase would certainly fall within the tdrmlnology consu.+
supplies end materials” or “other necessary expanse.”
However, the purchase of. such Items as food, coffeG
’ creem or auger presents a different question. Se&ion 51 0r
Article III of the Constitution of Texas provides in part t&t?
“The Leg.l,alature shall have no power to
.f make any grant or authorize the making of any
grant of public tioney to eny individual, aaaoala-
tion of Individuals, municipal or other corpora-
tlona whatsoever. . . .’
Se&Ion 6 of Article X’V’I or the Conatitutlon,of Texas providti’
In pert’. that a
“No appropriation for private or’lndlvldual
purposes shall be made. . . .”
In the oaae’0; Terre11 v. Middleton, 187 S.Y. 367
(Tex.Clv.App: 3916, error ref ) th c t habbefore It fw '
consideration the foregoing c&aat&,``~l provialona ln cM&~+i
neation wlth.en approprlation for the Oovernor’a manaio** l
Co@ in Its opinion stated theta
“Conalderlng the clrcumatanoea under which
the convention met, the evlia .aought; to be remedied8
end the .enda to be accomplished, as well as the
personnel of the members, It cannot reasonably
be held that ‘it ever entered the mad of Euly
member that the Governor, under the guise Of
maintaining the Oovernor 'a mansion,would be
voted grooeriea to maintain his houa````
be vot,ed food end care of the Governor aa h
L 2 -’ -2695-
‘:, ,
.
.;
Bon. Robert S. Calv&, page 5 (C-+7)
gasoline E@ repairs for his automobile, would
be voted emboseed oerda end printed lnvltatlona
to hIa social functions, end liquors, meat,
vegetables,. . ..I
(1. . ;
“Clearly,. the Items for which' the comptroller
aou&t and dealred to laaue state warrants end
frin! which aotlon’he was restrained, were for prl-
vate”and Individual purposes, ahd .not for the public
good, end the approprltitlon made for that purpose
by;yt;&L; %al&ine was directly in the face of
% II 6, of the Conatltution, which commands
that ‘ho a&s?oorlatlon for Drlvate or Individual
purposes ahilibe ziade.’ The articles named were
3’urnlahlng gasoline for~hl’a automobile, or b fur-
nishing groc&lea or other luxuries for lili&hK-
e, ‘* (Emphasis added).
In view or the foregoing, we are of the opinion that
appropriated funds of e State agency or department could not be
USed to purcbaae auch’ltema as food , coffee, cream3 sugar. and
the like which would be ultimately consumed by employees of or
vlaltora to the State agency or department,.
SUMMARY
While there must be pre-exlatlng lari to au-
thorize the Legislature to appropriate funds fox+
us& by State agenclea or departments In thelr pur-
chase of euch Items as refrigerators, ranges, sinks,
peroul,ators and +pa, there presently exlata auf-
flcient pre;cxlatlng law to authorize State agenclea
end departments to purchase such refrigerators,
ranges, blnks, peroulators end cups ‘as they see
fit, within the llmlta of the agenoy’a or depert-
me~%;~5y~giom3~ Attorney 0e~eral’a 05lnlon
Purchases of such items as r8frlgOratOr8,
ranges, sinks, perculatora end cups by a State
agency or .depa.rtment could be paid out Of a
apeclfic..approprlatlon for the purchase of such
items, or ln the alternative such Items could
i 2
-2696- _T
Hon. Robert 9. Calvert, page 6 (C- 557)
be pur’chaaed from available funds in either 0s~
the two llluatratlve appropriations set forth.
A State agency or depertment~may purohaee
ooneumabie supplies or materials to be tieed in
the car;& and maintenance of such items as refrlg-
orators, I?an&ea, alnke,’ perculatora and cups.
However, a State agincy or department Is prohibited
by Section 51 of Artiole ,111 of the Constitution
of ‘Texas and Section 6, of Article XVI of the Con-
stitution of Texas. from purchasing with State funds
such it.ema,ad food, ooffee, creem, and 8uge.r whloh
would ‘ultimately be coneumed by. employees of or
visitors to the State agency or department.
Very truly yours,
WAOQONER CARR
.Attorney aeneral,
.
Pat Bailey
Aaalatent
PBrmkh
APPROVED:
.
OPINION COMIUTTEE
W. V. Qedpert, Chairman
John Reeves
Qrady Chandler
Roger Tyler
Alan Minter
APPROVEDFOR TEE ATTORNEY QENERAL
BY: T. B. Wright l
m---c-