Untitled Texas Attorney General Opinion ( 1958 )

I Honorable Price Daniel Opinion No. WW-349 Governor of Texas Capitol Station Re: Validity of proposed Austin, Texas contract between the State Building Commls- sion and the Texas State Historical Survey Committee and questions relative to certain appropriations to the State Building Commis- sion from which the consideration of the Dear Governor Daniel: contract Is to be paid. You have aubmitted for our consideration a proposed contract between the State Building Commission and the Texas State Historical Survey Committee which contract, omitting the formal parts, reads as follows: "This CONTRACT is made and entered Into, In quadrupllcate originals, on the day of 1958, by and between the State Building ?%%ii&lon and the Texas Historical Survey Commlt- tee, pursuant to the authority provided in Senate Bill No. 134, Acts of the 54th Legislature, 1955, Regular Session, Chapter 514, (codified in Vernon's Civil Statutes as Article 678m), Senate Bill 426 of the 55th Legislature (Regular Session) and House Bill 62 of the 55th Legislature (Regular Session). "The Texas State Historical Survey Committee agrees to perform the following services for the State Building Commission for a period of years, beginning , 1958 and en-on f 193-* "(1) Locate the graves of the Heroes of the Texas War for Independence and prepare recommenda- tions for properly marking them. Honorable Price Daniel, Page 2 (WW-349). "(2) Work with the State Buildfng Commls- sion, as the Commission directs, In planning for the Vicksburg monument to Texas Confederates, In the proper designation of the new Supreme Court Bufldfng as a Confederate Memorial and In the restoration of the Old Land Office Building. “(3) As needed In connection with (1) and (2) above determine the names of Texas Heroes of the Confederate States of America and the Texas War ror Independence and substantiate their Inclusion in this category, "(4) Provide consultant servic:sand advice as to the plas,sof the State Archives and Library Building. “(5) Determine the condition of memorials and monuments erected by 'rheCammissIon of Control for Texas Centennial CelebPatfons and make recom- mendations for their repair and relocation where necessary continuing to eacourage local restora- tion and preservation of these markers and sites. “(6) hrrom any other services necessary to carry o-atthe histcrloal provisions 0r Senate Bfll No. 134, Aets of the 58th Legislature, 1955, Regular Sessfon, Chapter 514, (erudirfe’3 fn Vernon's Civil Statutes as APtfele 678m), Senate Bfll 426 of the 55th Legislature (Regular Sessfon) and House 1311162 of the 55th Legislatup; (Regular Session). "The State Building Commission agrees to pay the Texas State Historical Survey Committee the SW~0r per month for a perfod of - (jgbegfnning - on the day of 1958. Such p?qmentsBhall be paid monthly by'warrants drawn by the Cumptpoller or Public Accounts 9r the State or Texas upon the State Treasurer out of funds appropriated to the State BuuildlngCommlsslon for such pzpoae by the Legislature of the State of Texas. "The Texas State HfstsrZcal Survey *:ommittee agrees to submit to the State B-&ldirigCcrpmlssion monthly statements, in triplfcate, aecompanfed by Honorable Price Daniel, Page 3 (W'W-349). an affidavit that the contracted servlces have been performed and that the monthly payment la due. The first payment provided herein shall be paid on 1958, and sub- sequent payments shall Fe-i&e on the first day of each month thereafter for the term of this contract, or not exceeding thirty days after the due date. "The State Building Commission shall have the right to cancel and terminate this contract by giving written notice to the Texas State Hla- topical Survey Committee at least thirty (30) days prior to the cancellation date stated in the notice of cancellation." The questions you submitted for our consideration we quote from your letter of January 16, 1958: "Will you please inform me whether or not this contract may legally be executed, assuming of course, that the funds Involved do not exceed those appropriated to the Building Commission. "If you rind that this contract may be executed, may the funds be paid from Item 4, 7, 8, 9, or 10 of the appropriation to the tiildlng Commission In K.B. 133, 55th Legislature." We have exsmlned carefully the statutes of the State of Texas relative to the authority of the two agencies to enter into this contract, and we find authority for this contract In Article 678m, Vermont8 Civil Statutes; S.B. 426, Acts 55th Leg., Regular Session, 1957, Ch. 500, p. 1460, codified In Vernon's Annotated Civil Statutes as Article 6145a; and H.B. 62, Acts of the 55th Leg., Regular Session, 1957; Ch. 274, p. 615, codified In Vernon's Annotated Civil Statutes as Article 678m-2. It la our opinion that the duties which are to be performed by the Texas State Hlstorl- cal Survey Committee constitute a part of the duties of the State Building Commission whhichmay legally be delegated to the Texas State Historical Survey Committee by contract. However, we have some question as to the authority of the State Building Commission to agree to pay to the Texas State Historical Survey Committee a definite sum per month for a period of years without a requirement in the contract Honorable Price Daniel, Page 4 (WW-349). that all of said amount be expended for the services set out In the contract, or In the altematlve, that payment for the services be made on the basis of the actual or estimated cost to the Texas State Historical Survey Committee. The contract as submitted to us does not require the performance of services commensurate with the amount of money to be paid. As far as the provisions of this contract are concerned, the Texas State Historical Survey Committee could perform ser- vices costing it $100 a month , and yet receive payment in the amount of $500 per month from the State Building Commls- slon. It is our opinion that when one state agency contracts with another state agency for the performance of services, the money to be transferred or paid in exchange for such services should be paid on the basis of an approximation of the actual costs of such services. The Legislature In enacting the Inter-Agency Cooperation Act, Article 4413(32), V.C.S., adopted this requirement for all inter-agency con- tracts under that act. In Section 3 of the above Article, it Is provided: I,. . . The actual cost of rendering the services or the nearest estimate of the cost that Is practicable shall be reimbursed . . . * This Act further provides that thepe must be a written agree- ment between the two agencies specffyfng: " . * . the bases for calculating relmburs- able costs, and the maximum amount of the costs during the time period covered by the agreement." We think these requirements are sound and should be applied to all contracts between state agencies. Accordingly, we are of the opinion that this contract In its second and third paragraphs from the end, should be reformed so as to follow the requirements of the Inter-Agency Cooperation Act even though other authority for the contract exists In Article 678m, V.C.S. With the exception of the change Indicated with regard to costs, we think the contract to be valid. Considering now which of the line-item approprla- tlons to the Texas Building Commission mentioned by you In your letter may be used to make the payments required under the above contract, it Is our opinion that line-items 9 and 10 by their designations are unrelated to any service to be performed under the proposed contract, and are, therefore, Honorable Price Daniel, Page 5 (WW-349). unavailable for payment of any of the sums due under such contract. Line-item 4 fs restricted to use for salarfes or professional services. As such, we think this appropriation may be used for payment for each of the servfees to be rendered under the contract, since such services are in effect proressional services and are accomplished by payment of salaries to professional people. Line-item 7 is restricted to the repair and relocation of exfstlng historical markers. It fs our opinion that the appropriation under thfs lfne-ftem may be used for the payment of services to be rendered ur,dez= numbered para- graph (5) of the contract, and ,underparagraph (1) of the contract to the extent the services to be rendered under the latter papagraph concern existfng markers. It 1s our further opinion that the appropriation under line-item 8 may be used only In the completfon of the Supreme Court Building as the first building to be erected by the Building Commission under the terms of Section 10 of Article 678m, V.C.S. As such, this appropriatfon may be used only far r:a:mentfor services rendered under numtered paragraph (2) "In ihe proper deslgna- tlon of the new Supreme Court Building as a Confederate Memorial", and under numbered paragraph (3) cnly Insofar as the services described fn that paragraph pertain to the designation of the new Supreme Court Bullding as a Confederate Memorial. We cannot tell what appropriations may be used for the services to be performed under numbered paragraph (6) In the contract because of the generality of this paragraph. The services performed under this Section must be applied to the authorizations for expendftures made by the Appropriation Act, and payment made from the prcper line-item as described above. SUMMARY The proposed submitted contract is valid with the exception of the second and third paragraphs from the end, which such paragraphs should be rewritten to provide for payment on a basis approxi- mating actual cost, rather than on a specific sum basis. Line-ftems 4, 7 and 8, Texas Building Commission App~o- prlation, H.E. 133, Acts.55th Leg., Honorable tifee Daniel, Page 6 (W-349). Regular Session, 1357, Ch. 385, p. 870, may be used for the speefffc services stated, but line-Items 9 and 10 are unrelated to any duty to be perf0Ilne.d ur,dertinecontra-t and ape not avail- able for latent of the contract. Yours very t.ruly, WILL WILSON Attorney General of Texas JHM:wsm:jl APPROVED: OPINION COMMITTEZ Geo. P. Blackburn, Cna4rman John Reeves J. C. aavis, Jr. Leonar3 Passmore FGZA'IEWED FOR THE A?TORNEY GENER-&L BY: w. v. Geppert