Untitled Texas Attorney General Opinion ( 1946 )

ORNEY GENE-L
OFTEXAS
Hon. Paul L. Bognton, President
Stephen F. Austin State Teachers College
Nacogdoches, Texas
Dear Sir: Opinion No. O-7352
Re: Authority to expend a specific
appropriation for the construc-
tion of a permanent improvement
when the sum appropriated is in-
adequate.
We acknowledge your letter of August 10, 1946, where-
in you request an opinion of this department on matters therein
discussed, which reads, in substance, as follows:
The 49th Legislature appropriated to the Stephen
F. Austin State Teachers College for the year ending
August 31, 1946, $24,000.00 for “steam tunnels and
steam pipes for main buildings.” On three occasions,
bids were requested and in each instance the same had
to be rejected because the bids were in excess of the
amount appropriated . ComDaniea are not willing to
bid more closely within the range of costs because of
the uncertalntg of material and labor costs. That the
college might realize the sum appropriated, we, desire
to know whether we can let a contract, a cost-plus
contract, with the stipulation or agreement with the
bidder that the total work done would not exceed
$24,000.00, and bidder would agree to complete the
unit in Its entirety when moneys are mad,e available.
The college could get most of the work done on this
basis, and a contract would be let in such a way that
the bidder-company would agree to complete the unit
upon which it shall work to its entirety.
Under the facts stated, it is revealed that the appro-
priation of $24,000.00 for steam tunnels and steam
main buildings of the college (Item 78, Acts 1945, $%Y``f;sla-
ture, Regular Session, Chapter 377, page 796) Is inadequate to
meet the present day costs of materials and labor for the con-
struction and installation of the steam system. The basic
question involved here is, we believe,, whether the college
has authority to expend an appropriation made for the construc-
tion or installation of the steam system contemplated by the
. ,
Hon. Paul L. Boynton, page 2 O-7352
Legislature, when the sum appropriated is in fact inadequate.
It Is elemental, of course, that all power to approprl-
ate money for public purposes or to incur any debt therefor,
unless given by the Constitution to some other ind,ividual or
body politic, rests In the Legislature. Sec. 6 of Art. VIII of
the Texas Constitution, provides that “no money shall be drawn
from~ the Treasury but In pursuance of specific appropriations
made by flaw .‘I This provision requires speclficness as to pur-
pose as well ,as to amount.
The type, of appropriation which we are herein discussing
Is a specific appropriation for a purpose which the Legislature
contemplated might be accomplished within the sum appropriated
therefor. In other words, we believe that the Legislature in
appropriating Item 78 could have and did contemplate the full
complet%on of the construction or installation of a steam
tunnel and pipe system for the main buildings of the college,
and provided by Its appropriation that the cost of the complete
system should not exceed $24,000.00 The Legislature specified
by its appropriation to the college the purpose for which it.
should be expended and the specific amount to be expended for
the steam system In question.
It is well known that it Is the custom with the Legls-
lature to appoint committees or boards to investigate the needs
of public Institutions and to pass appropriation bills for
definite amounts for the support, maintenance and erection of
bulldlngs Andy other permanent Improvements therefor. Articles
688, 689, 68qa-2, 689a-7, V.A.C.S.; State v. Hardeman, 163 S.W.
1020. We do not think the passage of the appropriation bill,
above referred to wherein the specific amount of $24,000 was
appropriated for ‘steam tunnels and steam pipes for maln build-
ings” for the College, the Legislature intended to grant the
trustees thereof discretion to incur liabilities on the part of
the State for more than this amount.
All public offices and officers are creatures of the
law. The powers and duties of public officers are defined and
limited by law. 22 Ruling Case Law, page 555. Public officers
may make only such contract with the government they represent
as they are authorized by law to make. Fort Worth Cavalry Club
vs. Sheppard, 125 Texas, 339. In our opinion.,, the approprlatlon
law authorized In effect the proper officials of the College to
make a contract blnding upon the State for the erection, con-
struction or installation of the steam system in question and
fixing the amount to be spent therefor, by impllcatlon, declared
that the cost of the steam tunnels and steam plpes for main
buildings should in no case exceed $24,000. This was a llmita-
tion on the authority of the agents~representing the State, and
any efforts on their part that would attempt to impose upon the
Hon. Paul L. Boynton, page 3 O-7352
State a contract that would Increase its liability beyond the
amount stipulated In the appropriation would be clearly un-
authorlzed, and would be an act not binding on the government.
Nichols vs. State, 32 S.W. 452; State v. Halderman, 163 S.W.
1020.
Considering the facts herein quoted, wherein It Is
apparent that the College cannot contract for the construction
or installation of a completed steam system as contemplated in
the quoted appropriation bill at a cost of $24,000.00, or less,
we are of the opinion that the College cannot let a contract
stipulating with the bidder that the total work done would not
exceed $24,000 and wherein the bidder would agree to complete
the unit in its entirety when moneys are made available, for
the reasons hereinabove stated.
Trusting the above satisfactorily answers your in-
quiry, we~remain
Very truly yours,
ATTORNEYGENERALOF TEXAS
By s/Chester E. Ollison,
Chester E. Ollison
Assistant
CEO:rt:wc
APPROVEDAUG 19, 1946
s/Ocle Speer
(Acting) ATTORNEYGENERALOF TEXAS
Approved Opinion Committee By s/BWB Chairman