Untitled Texas Attorney General Opinion

THERT~OR``I~Y GENERAL
OF TEXAS
AUSTIN. TSSXAE 7871X
November 7, 1974
The Honorable W. J. Estelle, Jr. Opinion No. H- 444
Director
Texas Department of Corrections Re: Disposition of income
Huntsville, Texas 77340 generated by agricultural
operations of Department
of Corrections.
Dear Mr. Estelle:
You have asked our opinion concerning the proper disposition
of prison revenues which accrue when “surplus agricultural products”
are authorized to be sold by the Texas Board of Corrections pursuant
to Article 6203c, Section 9(m) of the Prison-Made Goods Act of 1963.
You call our attention to two riders in the current appropriations
act, (Acts 1973, 63rd Leg., ch. 659, p. 1786). The first is specifically
attached to the appropriation for the Department of Corrections. It provides:
It is the intention of the Legislature that the sums
appropriated hereinabove shall constitute the maximum
amounts required to operate the Department of Correc-
tions . . . and that, except for the exchange of cotton-
seed for cottonseed meal and cake and the exchange of
cotton for textiles, any other products or by-products
of agriculture or livestock in excess of the quantities
required for consumption, shall be sold, or disposed
of through inter-agency contract, and the revenues
accruing shall be deposited in the General Revenue
Fund. Notwithstanding any other provisions of this Act,
none of the revenues so deposited are reappropriated
except as they apply to the sales of equipment, salvage,
refunds and to recovered damage claims. (Emphasis
added) (Acts 1973, 63rd Leg., ch. 659, at p. 1949)
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The Honorable W. J. Estelle page 2 (H -444)
The other rider is found among the appropriation act’s “General .
Provisions” and relates to revenues accruing to state agencies under the
Surplus and Salvage Act of 1957, Article 666, V. T. C. S.
SURPLUS PROPERTY. Receipts to any agency
of the State Government specified in this Act which
are received from the sale of surplus property,
equipment, livestock, commodities, or salvage
pursuant to the provisions of [the Surplus anisalvage
Act of 19571, are hereby appropriated to such State
agency for expenditure during the fiscal year in
which such receipts are received. Receipts from
such surplus and salvage sales are to be credited
to the appropriation item from which like property,
equipment, livestock, or commodities would be
purchased. (Acts 1973, 63rd Leg., ch. 659, at
p. 2209).
Your question is whether surplus agricultural revenues should be
deposited in the General Revenue Fund, where they are unappropriated,
or whether Article 666, 5 4(e) requires that they be credited to the line-
item which originally funded the surplus products. If the latter is the
proper disposition you also ask whether surplus agricultural revenues
are reappropriated in the current biennium by the Surplus Property
rider, cited above.
In our opini.on, the first rider as attached specifically to your
Department’s appropriation, controls over the Surplus Property rider.
The Legislature has affirmatively expressed an intent to not appropriate
revenues accruing from a disposition of surplus agricultural products
by the Texas Department of Corrections. This intent is evidenced by the
first sentence of the rider, providing that the funds appropriated above
it are the maximum available, and by the final sentence stating that
“[nlotwithstanding any other provision of this Act” the revenues arising
from a sale of surplus agricultural and livestock, products or by-products
are not reappropriated “except as they apply to sales or equipment, salvage,
refunds and to recovered damage claims. ” That your rider was intended
to be an exception to the Surplus Property appropriation is also indicated
by the phrase identifying its subject-matter as “products and by-products
p* 2047
The Honorable W. J. Estelle page 3 (H-444)
of agriculture, and livestock . . . in excess of that quantity required
for consumption . . . ” which is substantially identical to the definition
of “surplus” agricultural products given in $ 6 of the Surplus and Salvage
Act of 1957, Article 666, V. T. C. S.
In addition, your rider also attempts to restrict the sale of
surplus agricultural products to interagency contracts, and to deposit
all income from these sales in the General Revenue Fund.
Since your questions are principally concerned with revenues
obtained when products are sold under Article 666, V. T. C. S., an
interagency transaction, there is no need to consider the constitutionality
of the rider’s interagency contract limitation in any other context.
However, we realize that Section 9(m) of the Prison Made Goods Act
gives the Texas Board of Corrections the option of selling surplus
agricultural products directly to the public, under appropriate regula-
tions, or of proceeding by means of the Surplus and Salvage Act. The
vehicle chosen to accomplish a sale does not affect the clearly expressed
intention that revenues derived from this type of property are not re-
appropriated.
If the Texas Board of Corrections chooses to dispose of the pro-
perty under the Surpl,us and Salvage Act, as it is authorized to do, we
believe that its Section 4(e), as a matter of general law, earmarks the
revenue from a sale under that Act to the credit of the line-item of the
disposing agency from which the property was originally funded, and
dedicates the revenues to the agency for its future use, contingent upon
a present or future appropriation of such funds by the Legislature.
Consequently, to the extent your rider attempts to divert to the General
Revenue Fund revenues which are earmarked for a special purpose by
general law it cannot be given effect. Johnson v. Ferguson, 55 S. W.
2d 153, 157 (Tex. Civ. App., Austin 1932, writ dism’d).
In the meantime, eflbct must be given to the clear import of the
remaining portion of that rider which is that notwithstanding any other
provision of the current Appropriation Act, including the Surplus
Property rider mentioned above, no revenues derived fromthe sale of
surplus agricul,tural products or livestock are reappropriated, “except
as they apply to the sales of equipment, salvage, refunds and to recovered
damage claims. ”
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The Honorable W. J. Dstelle page 4 (H-444)
SUMMARY
Sales of products of agriculture or livestock in
excess of that required by the Department for con-
sumption may be made under Article 666, V. T. C. S.,
the Surplus and Salvage Act of 1957. Revenues
therefrom are earmarked for return to the appropriate
line-item, but are not reappropriated in the current
biennium, except for revenue from sales of equipment,
salvage, refunds and recovered damage claims.
Very truly yours,
JOHN L. HILL
c/ Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
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