Untitled Texas Attorney General Opinion ( 1946 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVER SELLERS
ArrOlNI” GCNC”AL
IIon.C. H. Cavness
State Auditor
Stat8 Capitol
Austin, Texas
Dear Mr. Cavneaa:
Opinion No. O-7023
Re: Validity of an item oonteined in
House Bill 701 appropriating
$629.05 to pay olaim of Port Worth
National Bank of Fort l,forth,
Texas.
! ‘,
Legislature to be paid out of
ing its inclusion therein in the Wsaullaneoua Claims Bill.
Xe further stated In our prior opinion,that the olaimant must
await appropriate aoflon by the Legislature for payment out of
the dghwap Fund. In the light of the ews we now have and
herein express, while we atUl‘qdh8re .-t” o the prlnoiples of
law set out.? our\,formerop~inlon,those views now become
\I ,’ i
aoademi6. \ ,, \ ,/”
f /’” /I&l be he&l *ifwe review the history of this
I’ I’
olbim brlefly``atqlthla~.f9llowar In 1929, the State Highway
Comm.ission, acting in pursuanoe of the legal authorlty which
the Legialsturd,had oonferred upon it, made a oontraot with
the Tibbetts Construction Company for the oonstruotfon of a
porticn,,of”wState highway in Hudapeth County. The highway
was construeted and the Highway Commission withheld from the
amount due..thecontraotor under the contraot an amount slightly
in excess of ;lOOO. beoauae of certain expenses inourred by
the HizJrway Departaent in conneotion with a detour made neoes-
sary in the construction of the highway. This gave rise to a
Xon. C. 3. Cavness, page 2
controversy between ths State and the oontractor. The Ft.
A'orthNational Bank beoame the owner of the claim of the
oonatruotlon company by appropriate assignment. By Houee
ail1 No, 381 (Ch. 148, R. S., 44th L8giSlatur8, pp. 388-389)
the 3. :IlorthNational Bank of Ft. ?lorth, Texas, was granted
consent to sue the Stat8 upon the item her8 involved, and
pursuant to this authority suit was instituted by the bank,
and Ultimat8ly reduoed t0 an agrebd judgment in 1943. S80. 2
of said Houee Bill 381,granting the oonsent of the State to
be Sued, proTided in part as follows:
"And any judgment reoovered against the Stat8 of
Texas shall be paid out of the State Highway Fu3d.l
It la now our view that at the time the State
granted consent to sue in this oaas there was a pr88XiSting
appropriation out of whioh a valid judgment could be paid,
when the amount was judicially determined, from the Highway
Fund, When the amount was agreed UpOn in 1943 and an agreed
judgment entered, which judgment beoame final, the same could
and should be paid by the Highway Department from the Highway
Fund without any further appropriation. The LegiSlatUr8 every
two years reappropriates all Stat8 Highway Funds not previously
expended as well as all new funds ooming into the treasury;
and we think all unexpended funds for contractual Obligations
are reappropriated by the Legislature each two years for the
payment of the State's obligations on auoh oontraots as the
Highway Commission is authorized under the law to make. No
question of the validity of the oontraot between the State
and the oontraotor is raised. The oontraotor performed his
oontraot, and it has now been judicially determined by the
agreed judgment that the Stat8 erroneously withheld from the
oontraotor'a oompensation the amount agreed upon and of which
the Ft. Worth National Bank b8Oam8 the legal owner.
Two prior opinions of this Department support th8
views we now entertain, No. O-5713 and No. o-6503, ooples of
whioh are herewith attached for your information. !Ve do not
d86m it necessary to 18ngth8n this Opinion by inoorporating
them in thisJopinlon, but we approve them in prinoiple and
rely upon the authoritica therein stated. If, as stated In
opinion No. C-5713, the disputed item for whioh an appropria-
tion had been Fr8ViOLEZlymade was withheld by the Highway
I.05
'ion.C. ;-I.
Cavneas, page 3
Commission, and in 8ff8Ot withheld funds belonging to the
contractor and not to the State, no additional appropriation
would be required to authorize the Highway Commission to pay
same to the oontraotor'a assignee, the Ft. Worth Natiamsl
9ank. And if it has not been withheld by the Highway Commla-
sion, there is neYerthel8as authority to pay it under the
holding of opinion No. 0-6503, in that it is supported by a
legal appropriation.
The law as prOnOUnO8d in the National Blaouit Co.
v. State, 135 S. W. (26) 687, and in State v. Hale, I46 9. ‘8.
(2d) 740,is not applioable to the faota in this 0868, for
the obvious reason, as we hare h8r8tOfOr8 pointed out, it
-?a6not neoeaaary for the Legislature, wh8n it granted its
consent to SU8, to make another appropriation st that time
or any subsequent tinie,for a legal spprOpriatiOn had thereto-
fore been made, and reappropriated eaoh two years, h8nC8
sea. 6 of Art. VIII of the State Constitution is not YioIated,
whloh Is as follows:
*No money shall be drawn from the Tr8RSUry but in
pursuanoe of apeolflo appropriations made by law; nor.
shall any appropriation of money be made for a longer
term than two years, eXO8pt by the first Legislature
to assemble Under this Constitution which may make the
neoeaaary SpprOprfatiOnS to carry on the government
until the assemblage of the 16th Legls1ature.n
The statute gave the Highway Commlaaion authority
to make this oontraot and to disoharge the obligations arising
thereunder out of an appropriation from the Highway Funds.
The Legislature granted oonsent to sue, and oonsistent with
the provisions of the oontraot provided that the liability
when aaoertained should b8 paid out of the Highway Fund,
and there being in 0U.rview a speoifia appropriation to pay
the liability which was each two years reappropriated, this
claim oan be paid out of the Hlghway Fund, and the inclusion
of this amount in the Miao8llan8oua Claims Bill passed by
the 49th Legislature, providing for its payment out of the
General Fund do86 not repeal or nullify the obligation and the
appropriation to pay it out of the Highway Fund. ID Other
words, we hold that it was not neoeaaary for the 49th Leglala-
ture to make an appropriation out of either fund for the reason
that a legal appropriation had theretofore been made and now
exists for its payment out ol the iIlghwayFund.
106 .
iIon.C. ii.Cavneas, page 4
From the foregoing it follows that we are of the
oninion that this olalm in the amount of .;629.05in favor
of the Ft. North National Bank la valid, and that payment
ther6Of should be made from the Highway Fund, and not the
General Fund, and you are aooordlngly so advised. Our
?xmer opinion la withdrawn and this one substituted
th6refOr.
Very truly yours
ATTORNEY GENERAL OF TEXAS
ATTOF3iEYG