             TIXEATPOWNEY                           GENERAL
                                   OF TEXAS
                             k%USTIN.    -XAS       r8711



                               September 10, 1963


Honorable Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas
                                        Opinion No. C-134
                                        Re:     Authority to execute a
                                                lease for a term beyond
Dear Mr. Calvert:                               current appropriations.
        Your request         for   an opinion     reads in part as fol-
lows:
              “H.B. 1086,          58th Legislature         reads
        as follows:
              “‘Section   I.    The Department of Public
        Safety, the Liquor Control Board, the Parks
        and Wildlife    Commission gnd the Comptroller
        of Public Accounts are hereby authorized to
        enter jointly    Into a contract of lease of land
        and a building     thereon located. or to be locat-
        ed In El Paso County, to bemused by said agen-
        cies for reglbnal or district      offices.    The
        terms of the contract shall be agreed to by
        said agencies as one party to the contract,
        with each agency agreeing to pay a share of
        the rent or other consideration.         Said agen-
        cies are authorized to execute a contract of
        lease for a term of twenty (20) years with an
        option to purchase at the end of the term for
        a consideration      of Ten Dollars ($10); or said
        agencies may execute a contract of lease for
        any term of years leas twenty (20).
             n   .   l   .



              “I will t‘hank you to advise me if the
        departments named In the above act have the
        authority to execute a contract for a term
        which exceeds the current appropriations.”


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Hon. Robert S. Calvert,     page 2 (C- 134)


        Section   49 of Article    III   of the Constitution   of Texas
provides :
              “No debt shall be created’by or on
        behalf of the State   except . . .” (Excep-
        tion not applicable).
         Section 6 of Article     VIII of the Constitution  of Texas
prohibits   any approprlatlon     of money for a term longer than
two years.
          The leading cases pertinent   to your Inquiry are Charles
Scribnerls    Sons v.Karrs,  114 Tex. 11, 262 S.W. 722 1924);r
Fort Worth Cavalry Club v. Sheppard, 125 Tex. 339, A3 S.W. 2d
bb0 (1935)       I Lnarles Scrlbner's Sons v.Mar*      supra, the
Court was donsydering the validity      of a contract forthe    pur-
chase of certain books for a period of five years.        The obllga-
tion of the contract     was not to buy a fixed number OF amount
of books but only so many as needed by the schools of the State.
The Court held, therefore,     that since the contract did not make
a charge on the future revenues of the State, no debt was created
nor was Section 6 of Article     VIII of the Constitution    of Texas
violated.
        The case of Fort Worth Cavalry Club, su ra
lease contract for a period of five years.    &;U~Fv~:;l:d   a
that the contract was void since the adjutant general had the .;
Implied power to make a contract .only within the amounts of the
appropriation  and the period of the appropriation.
       It was held In Attorney General’s   Opinion O-6246 (1944)
that the Board of Regents of the University of Texas was authoriz-
ed to enter into a five year contract for fire Insurance and to
pay all of the premium from current appropriation,   stating:
              “The llmltatIon    that no appropriation   of
        money shall be made for a term longer than two
        years does not Imply a limitation       on the power
        to make a contract    for a greater time, where
        the contract does not require an appropriation
        beyond the two year period (38 Texas Jurlspru-
        dence, p. 845). With reference        to the Insurance
        contract on the University      Law Building,  it is
        clear that no llablllty      Is created against the
        State beyond the two year appropriation.
              II . . .



                                   -665-
,




    Hon. Robert      S. Calvert,   Page 3 (C-134)


                 "The Legislature     has, time and time
           again, appropriated      funds for buildings,    lm-
           provements and supplies of all kinds, which
           lasted as Investments of the State far beyond
           the term of that particular       two-year approprla-
           tlon.     Appropriations   have never been limited
           to those items where the benefits        created by
           the appropriation      would be exhausted by the end
           of the term of the two-year appropriation         period.
           From an analysis of the cases herein cited,          It
           appea5?s that the two-year limitation        upon the
           power to contract has reference        to the term of
           the obligation     created against the Stat~ch
           contract,    rather than to the period of time for
           which the benefits      of the contract may extend
           In favor of the State."
             In Attorney General's Opinion v-1067 (1950), it was
    held that payment of rental on business machines did not
    violate~Sectlon    49 of Article III of the Constitution of
    Texas since such rental was to be paid out of current appro-
    priations.
             In view of the foregoln       you are advised that while
    House Bill 1086. Acts of the 58'th Legislature,       Chapter 422,
    page 1015, codified    as Article   9783, note, Vernon's Civil
    Statutes,   authorizes  the Department of Public Safety, the
    Liquor Control Board, the Parks and Wildlife        Commission and
    the Comptroller of Public Accounts to enter jointly        into a
    contract   for a term of twenty years, such contract must be
    payable out of current appropriations;       otherwise such a con-
    tract would constitute     the creation of a debt In violation     of
    the provisions    of Section 49 of Article    III of the Constltu-
    tion of Texas.

            Therefore,   if the proposed contract Is payable out of
    future revenues of the State rather than current appropriations,
    the same Is Invalid.     In the event there are sufficient     monies
    appropriated    by the Legislature    for the payment of the entire
    lease term contemplated by the contract,       a contract leasing
    land by these agencies'for'a       longer term than two years would
    be valid,    If paid out of current revenues.

                                   SUMMARY
                     Section 49 of Article  III of the Constl-
            tutlon     of Texas prohibits  the creation of a



                                       -666-
Hon. Robert   S. Calvert,   page 4 (C-134)


        debt by the State and any lease contract
        not payable out of current appropriations
        would be void.

                             Yours   very   truly,
                             WAGGONER CARR
                             Attorney General




                                 Assistant
JR:ms
APPROVED:
OPINIONCOMMITTEE
W. V. Geppert,   Chairman
R. E. Richards
Nicholas A. Irsfeld
Bill Allen
Paul Phy
APPROVEDFOR THE ATTORNEY
                       GENERAL
By: Stanton Stone




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