I
    ,


                     TEE      A”JTOISNEY             GENERAL
                                     OFTEXAS                    ,



                                     January   29, 1952


        Hon. 0. B. Ellis                             Opinion   No. V-1397
        General Manager
        Texas Prison System                          Re:   Legality  of paying for
        Huntsville, Texas                                  the services    of an erec-
                                                           tion supervisor    from
                                                           funds appropriated     for a
                                                           prior fiscal year under
                                                           the submitted facts.
                                                                ,
        Dear   Sir:

                      Your request   for an opinion reads, in part,    as follows:

                     “The Texas Prison System has presented      to the
               Comptroller    of Public Accounts for approval two
               vouchers   totaling $600.00 in payment of services     of
               an erection supervisor    who was in charge of instal-
               lation of steel doors and other steel equipment in the
               Ramsey State Prison Building.     Approval  of these two
               vouchers was refused by the Comptroller      of Public
               Accounte on the grounds that a contract for personal
               service cannot extend beyond the life.of an appropri-
               ation.”

                    You then ask if ~the Comptroller of Public Accounts has
        authority to issue warrantrr to cover the services    of the erection
        supervisor.    The parts of the contract entered &to for the Prison
        System by the Board of Control for the ‘erection of cell fronts and
        doors in a new building at Ramsey State Farm, pertinent to this
        inquiry are:

                      “(d)   Erection  Supervisor    to be furnished by Prison
                             hquipment   Contractor.

                     “The Prison Equipment Contractor         shall furnish the
               services  of one (1) Erection Supervisor,     skilled in the
               erection and thoroughly informed       on all details concern-
               ing the installation    of Prison Equipment.    The services
               to be rendered     shall be exclusive  and uninterrupted    for
               two separate    periods of time, the total of,which shall
               not exceed twenty weeks when the Prison Equipment in-
               cluded in this contract is being installed inthe buildings.


                 .
Hon. 0. B. Ellis,   Page .2 (V-1397)



      The Erection Supervisor shall direct and super-
      vise the installation work.    The Owner shall in-
      stall the Prison Equipment with inmate labor,
      without cost to this Contractor,    in accordance
      with the directions   furnished by the Prison Equip-
      ment Contractor.     The Erection    Supervisor’s   time
      shall not start until Prison Equipment      Contractor
      has all necessary    tools and equipment for the in-
      stallation of the equipment at the job site.

            “If Owner desires the services  of the Erection
      Supervisor   for more than two periods totaling twenty
      weeks, the Prison Equipment Contractor      shall be
      paid $100.00~ per week to cover these services,    in-
      surance, and wear and tear and use of tools for such
      additional time as the Owner shall require.

           “The Erection Supervisor          shall check all doors,
      door frames and construction work affecting the
      proper installation    and/or operation      of the Prison
      Equipment and shall further see that the operating
      mechanism      is properly  installed,    is in accurate
      alignment,    rigidly secured and that it functions in
      a satisfactory    manner.”

            The appropriation   from which you wish to make the
payment in question is Item 84 of the appropriation   made to The
Texas Prison System by Senate Bill No. 391, Acts 50th Leg.,
1947, ch. 400,p.  899.   The item reads as follows:

           “84. Construction    during biennium of cell
      blocks, ~buildings, improvements,    and engineering
      and architectural   fees, such fees not to exceed 5%
      of net cost of project . , . $600,000.00.”

            No appropriation     of State funds may be made for a term
of more than two years.       Tex. Const. Art. VIII, Sec. 6. Moreover,
the biennial appropriations     are actually two separate annual appro-
priations.   It is well settled that money appropriated       to a State de-
partment or institution for supplies must be used during the fiscal
year for which it was appropriated.        Att’y Gen. Ops. O-2380 (1940);
0-6Oll (1944); Q-6883 (1945). Likewise,       personal   services must be
purchased   with current appropriations.        Att’y Gen. Op. O-2815
(1940).

            However,, it is equally well settled that an exception to
this rule is made in the case of capital expenditures.     Att’y Gen.
Ops. O-2631 (1940); V4139 (1950). Regarding      this exception, it
was said in Opinion O-2631:
Hon. 0. 8. Ellis,   Page   3 (V-1397)




            “With respect to those suppltes.       or things
       which, as you state, might be termed         ‘a capital as-
       set of the State,’ the rule is that such supply or fix-
       ture may be purchased and paid for out of the ap-
       propriation    for any year of the biennium for which
       an appropriation     has been made.     Fixtures,    equip-
       ment and supplies whatsoever        that do not perish
       with their use, but which may be continuously used
       after the year in which they are,purchased,         are not
       governed by identical principles      applicable    to those
       supplies which are consumed with their use. Thus,
       machines,    fixtures,  books, and the like, are not con-
       sumed during the year they arc purchased,          but they
       last for many years.      Such ‘capital assets’ of the
       State may therefore     be purchased    and paid for out
       of the appropriation    for any year of the biennium
       for which an appropriation      for such article has been
       made.    This is true regardless     of the year in which
       the delivery    is made, since the purchase during the
       proper year amounts to an expenditure          or commit-
       ment of the appropriation     for that year,”

             Clearly,  the steel prison equipment which was pur-
chased under the contract in question is a “capital asset of the
State.”   Therefore,    if that portion of the contract calling for
the services    of an erection supervisor     is ancillary   to the main
purpose of the contract for the purchase        of a capital asset and
not a separate contract for personal       services,    this expenditure
unquestionably    may be made.

            A written contract should not be considered        piecemeal;
rather it must be construed      as a whole.    No single phrase, sec-
tion, or clause should be isolated from its setting and considered
apart from the other provisions     of the contract.     Guardian Trust
Co, v. Bauereisen,    132 Tex. 396, 121 S.W.2d 579 (m).         Whether
a contract is divisible  or entire depends primarily       upon the in-
tention of the parties,   Frankfurt   Finance Co. v. Treadway,       159
S.W.td 514 (Tex.Civ.App.     1942, error   ref. w.o.m.).

            The intention of the parties    to this particular    contract
is to be found in the clear and explicit language of the instrument.
The erection supervisor     is to be furnished    by the equipment eon-
tractor,  not employed   separately   by the Texas Prison System.          He
is not to be the direct recipient   of State funds.     On the contrary,
the contract provides   that the payments     in question are to be made
to the contractor.   Furthermore,     it is expressly’stated     that these
payments are to be used to defray other costs )juch as insurance
and the depreciation   of equipment,    in addition to compensating       the
erection supervisor,    His services     are indispensable     to the com-
pletion of the project, and, as the final inspector of the installation
                                                                                ,   ’



Hon. 0. B. Ellis,     Page   4 (V-1397)




work, they cannot be rendered until the installation       is complete.
We are of the opinion, therefore,      that the provision  regarding
the services    of the erection supervisor    is not a separate   con-
tract, but merely     a part of the entire contract for the purchase
and installation    of steel prison equipment.

             We do not feel that Att’y Gen. Op. O-2815 (1940) con-
trols the instant situation.   There the question was simply one
of the legality of a State agency paying, during one fiscal year,
the salary of an employee out of an appropriation        for a former
fiscal year.    In the words of the author of that opinion, “there
has been no contract whatsoever       binding, or attempting to bind,
such preceding     year’s appropriation.”     In the present case, the
Texas Prison      System is not paying the supervisor’s     salary; it
is paying the contractor    for his services.     The questioned pro-
vision is an integral part of a contract for the purchase        and in-
stallation  of steel prison equipment, and the facts that confront
us are not at all analogous to the circumstances        which gave rise
 to this opinion in 1940.

            The services    of the erection supervisor    being an es-
sential portion of a contract for the installation     of a “capital
asset of the State,” we are of the opinion that the Comptroller
of Public Accounts is authorized to issue warrants         to the prison
equipment contractor     for his services.

                                 SUMMARY

               The Texas Prison System may, from an appropri-
         ation covering the cost of installing   steel prison   equip-
         ment, pay for the services    of an erection  supervisor
         furnished by the contractor under the provisions       of a
         contract for the installation   of the equipment entered
         into prior to the close of the period for which the ap-
         propriation  was made.

APPROVED:                                   Yours   very   truly,

David 8. Irons                                 PRICE   DANIEL
Administrative      Assistant               Attorney   General

E. Jacobson
Reviewing   Assistant                       By h-6            &--‘-        .cYJ?\ I
Charles D. Mathews
                                            Calvin B. Garwood, Jr.
                                                      Assistant
                                                                                1
First Assistant

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