                                 J'+' 13, 1953

  Hon. HomersGarrison,  Jr., ;Director~
  Texas Department ‘of Pnblic Safety    ”’            .’
  Camp Mi+ry:-: *:~
  Austin~?fexas                         .^
                          Qpblion.No. s-q;:,
        .<^               Re:’ Legality  of the’ Department of
          L 7.c
            ..
                               Public Safety. purchasihg~; main-
                               taining,’ and operat~ing ‘an unL
                               limited numbersof passenger ‘:
                               czirrylng vehicles  equipped ~w~ith
                               two-way rad$os,%nd .usea. to safe-
                               guard public safetyand     public
                               property or to,;enforce   criminal
                               laws. :                       ._
                                                            .‘,
  Dear Co@l.~Garrison:

              YOU have submitted tw6 questi,ons~, concerning in-
  terpret&on    of: S.ection 9 .of~ Art.icle VI, ~ChLpter. 81,;: Acts
  of the 53rd Legislature     (House Bill Ro; ill),   the general
  appropriation   act for the biennium begianing September 1,
  1953. That section      is as follows:                      ...’
                  "Sec. 9. Passenger    vehicles.
                     “a.   None of the moneys appropriated     in
          ~~this, Act may be expended for the purchase of.
            pa~ssenger ‘cars or of airplanes designed for
          -.passenger transportation          unless authority to
         ~,. do so is explicitly        stated by the language of.
         ’‘thIsAct.        .. Moreover, none of then moneys appro-
            priated in this Act may be expended for the
  .’,!!,    maintenance or operation of any State-owned
.‘.         passenger      car or airplane designed for passen-
.~_         ger    transportation      unless the authority to do
                   and the Ilumber of oassen”er cars or air-.
            ii&es       to be maintained and boperated are ax&
             plicitly     stated by the language of this Act.
                Where the language of this Act explicitly
         authorized the maintenance and operation of a
         specified   number of State-owned passenger cars
                                                                                    -   -




~~$$on.     Homer Garrison,     Jr.,   page 2    (s-69)


            by an agency of the State, such agency shall
            file with the Comptroller by Sept. 15, t-53 a
            list identifying   the passenger cars to
            maintained and operated’ and none of the funds
            appropriated by this Act shall be available     to
            such agency for expenditure unless and until
            such list has been filed.     The list also shall
            be amended and corrected   by such agency from
            time to time as the identity    of passenger .cars
            being maintained and operated within the pre-
            scribed limitation   changes during the biennium.
                     “b.   Only the following      passenger-carrying
             vehicles    are exempt from the restrictions           on
             purchase     maintenance and operation specified           in
             this set 4 ion:     panel, pick-up and delivery trucks
             and trucks required for the conveyance of special
             equipment; motorcycle        delivery units; dual-con-
             trol automobile,s used exclusively          for driver trv&-
             Lng; passenger cars equipped with two-way radios,
            motorcycles,      jeeps,~ and boats needed, and used
             for fire prevention,       fire-fighting      and other ac-
   )>        tivities    for safeguarding public safety, public. .;, .~:;-:
             property,     or for criminal law enforcement.          ambu-
   :         lances or other passenger vehicles            specially
       .     eq~p~ed%+nd regularly.‘used          for ambulance. serv- ~,, ~~
           ; ices; bus~e,s’.and station-wagons        regularly used       UT.: i
             ~for~,the mass transportation        ~of numbers of ‘people ,:’ .i’
             and’essenti&’ ‘to the ,efficient         management
                                                            .~ .’ -oft the :+‘:
             operating agency of ‘then State.
                   “Ct. In those Instances -whe’re the language
            of this .Act,..~expllcit,ly authorizes .the purchase
            of passenger.. cars     none of the appropriated   funds
            so authorized    sha i lube .expended for the purchase
            of a passenger ‘car’ having a wheel base in .ex$,ess
            of 117 ‘inches; provided       however, that ‘if ~passen-
            germscars of longer, wheel base  ‘, are offered at’Xower
            prices,    the Board of Control may purchase .same.:”
               T’en s$sedifl& line’ item ap ro&iations   to’Vyour ae-
    partment ti&er ‘Chapter, 81 (# 72 71: ~128 130 155 '~157 185
    187, 203 and 205) contain language ~a?Wior~zing’eith&       p&has:
    or maintenance‘ and .operation of specified    number,s of passenger
    cars, trucks, ,motorcydlesj~ airplanes;   ,and one boat-by your va-
    rious divisions.
                  Tour letter     st.ates:~
”   .




        Hon. Homer Garrison,   Jr.,   page 3   (~-69)             $265



             “It is our opinion that none of the provi-
             sions of Sec. 9a are applicable   to the De-
             partmentof   Public Safety because of the
             exceptions indicated   In Sec. 9b; and further,
             that the only limitations   on purchase, opera-
             tion, or maintenance of vehicles   of the De-
             partment are the amounts appropriated    for the
             purpose.
             “The Comptroller Is of the opinion that the
             line items govern and that no vehicles  in ex-
             cess of those indicated can be purchased,
             maintained or operated.
             .“In view of these conflicting    opinions your
             opinion is respectfully    requested of the fol-
             lowing :
               “1.   Do the restrictions   on purchase,
               maintenance and operation of passenger-
               carrying vehicles    which appear in Sec.
               9a of Art. VI of House Bill 111, Acts
               of the 53rd Legislature     apply to the
               Texas Department of Pub&c Safety.
               "2.    May the funds appropriated  for such
               purposes by House Bill 111 be used by
               the Department of Public Safety for the
               purchase, maintenance and operation of
               vehicles   in excess of the quantities
               listed   in the line Items of the appropri-
               ation bill?11
                   In our opinion the provisions    of Section 9a (and
        9c) as a matter of law definitely     do apply to the Texas
        Department of Public Safety.     By the clear terms of this
        general rider the limitations    of Section 9 apply to &~%on-
        eys appropriated  in this Act” for the purchase, maintenance
        and operation of passenger cars and airplanes     designed for
        passenger transportation.     The only passenger cars and alr-
        Planes to which the limitations    of Section 9 do not apply
        are those which are specially    exempted by Section 9b.
                  Your first  question appears to be based on the prem-
        ise that all vehicles  used by your department are within the
        exempted classes as a matter of law.   We cannot accept this
        Premise.  Whether a given passenger car is “equipped” with a
        two-way radio and whether any given vehicle is %eededl* and
       -Hon.   Homer Garrison,   Jr.;   page 4   (s-69)
     fJsGb

         "used" for any of the specified    purposes are fact questions.
         We are required to interpret    exemptive language strictly.
         Consequently,  in our opinion Section 9b contemplates that
         the particular  vehicles must be needed.and used directlv       in
         carrying out an exempt function.     This view precludes a
         holding that because the principal    responsibilities   of your
         department relate to safeguarding public safety,and      public
         property and to criminal law enforcement, every vehicle pur-
         chased, maintained or operated by you Is exempt as a matter
         of law.

                     In response to~your second question        it is the
        -opinion of this office    that the ,funds appropr i ated in the ten
         items mentioned above may be used for the purchase, malnten-
         ante and operation of vehicles     in excess of the quantities
          specified  in those Items.   We reach this conclusion       on the
         basis of the Legislature's    directive  in Section 9b that cer-
         tain exempt vehicles    are not subject to the "restrictions         on
         purchase, maintenance and operation soecified        fin this section."
         You are aware, of;coursej    that an express specification        of
         quantity~.is one of the primary "restrictions       . . . specified
         in this sectiontl,   and that except for.the   restrictions      lm-
         posed in Section 9 neither anexpress        specification     of quan-
‘r       tity nor an explic I t statement of authority.to       purchase,
         maintain or operate is a prerequisite      to the validity     of the
         appropriations   for these              Att'y,Gen.     Op. Nos. V-
         1296 (1951),v-1097 (1950?3$;3            (1944),,
                                                         O-2669 (1940).
                    These considerations  compel the conclusion    that it
         was the intention  of the 53ra Legislature   that vehicles   of
         the exempt classes should.not be subject, to theespecial     llmi-
         tations imposed by Section 9. Consequently, having this view
         about the general Intention of the authors of the ten speci-
         fic line Items inquired about, it is our opinionthat,       with-
         in the limits of the ,funds appropriated,'  you may purchase,
         maintain and operate an unlimited number of~exempt vehicles
         in addition to the specifiednumber,    of vehicles stated,ther~e-
         in.
                      The relatively  large, quantities   of vehicles     speci-
         fied in the ten appropriation      items ~to.your department would
         seem to indicate     that the Legislature's    speclfication~of,quan-
         tities   in your case may have been intended to comprehend both
         exempt and non-exempt vehicles.        Undoubtedly, the Corn troller's
         opinion is so reasoned.      Without considering     Chapter E1 as a
         whole we would be inclined      to ~agree. But a comparison of ap-
         propriations    for these purpos~es made by Chapter 81 to other
Hon. Homer Garrison,    Jr.,   page 5   G-69)                26”


executive agencies * especially  those to the Prison System
and the Game and F&.h Commission, convinces us that the
53ra Legislature  was aware of the effect   of,Article  VI, Sec-
tion 9b of this Act and uniformly specified     only non-exempt
vehicles.
           Moreover, we are persuaded that our construction
of the appropriations    here involved is more in keeping with
the apparent purpose of Section 9b to continue to permit
maximumflexibility     in the use of funds appropriated  for ex-
empted functions while closely     limiting the use of funds
appropriated   for purchase, maintenance and operation of pass-
enger vehicles    to be used by state agencies for non-exempt
fmctions.


                                 SUMMARY
             The restrictions     imposed by Section 9 of Arti-
      cle VI of the general ap ropriation             act for the
      next biennium, (Chapter 8 1, Acts of the 53rd Legis-
     ~lature) apply to purchases, maintenance and opera-
     tion of passenger cars and airplanes              by the Depart-
      ment.of Public Safety which are not exempt as a
      matter of fact by the terms of Section 9c. The quan-
      tities   of automobiles      specified    in the appropria-
      tions to the Department refer to non-exempt vehicles
      only and do not constitute          limitations    on the pur-
      chase, maintenance and operation of exempt vehicles
      with appropriated       funds.
APPROVED:                                    Yours very truly,

C. K. Richards                               JOHNBEN SHEPPERD
Appellate Division                           Attorney General

Willis E.: Gresham
Reviewer
Burnell Waldrep
Executive Assistant
                                             B51ii*RS   Assistant

John Ben Shepperd
Attorney General
  * Acts, 53rd Leg., Ch; 81, p. 127, p. 207 - item 11 (Game
and Fish Commission), p. 210-item 22 (Governor's  Office), p*
222 (Highway Dept.)   p. 267-item 167 (Prison System), and PO
28%286-items  50, 5i, 57, 58, 130, 131 (Railroad Comm.).
PR:wb
