                               August   29, 1952


 Hon. Homer Garrison.   Jr., Director
 Texas Department  of Public Safety
 Austin, Texas                      Opinion No, V-1521

                                         Re:   Authority of Texas ,Depart-
                                               ment of Public Safety to use
                                               appropriated    funds for finish-
                                               ing north wing of new head-
 Dear    Sir:                                  quarters   building.

            You have requested an opinion of this office concerning
 the expenditure   of certain funds appropriated    fur placing in opera-
 tion The Motor Vehicle Safety-Responsibility       Act, House Bill 219.
 Acts 52nd Leg.. R.S. 1951. ch. 498, p- 1210. In order to properly
 understand the question presented,it     is necessary   to discuss the
 background    material  leading to the facts out of which your ques-
 tion arises.

            Senate Bill 439, Acts 51st Leg., R.S. 1949, ch, 439, p0 882,
 authorized   the Texas Department    of Public Safety to construct a
 new building to house the various divisions    of that department.   In
 letting the contracts for this new building.consideration    was given
 to the normal expansion of the divisions and sections of the De-
 partment. but you state:

                1,
                D 0 D No provision was made for the inclusion
        of finished space for additional sections or divisions
        of the Department,      except there were excavated areas
        in the unfinished parts of the north and south wings of
        the building on the basement level.       These areas were,
        of course, inclosed by walls and roof. but with dirt
        floors.    No provision was made for the installation     of
        electrical   lines, telephone lines, plumbing facilities,
        heating, ventilation,    or cooling. as it was apparentat
        the time that this section of the building would not be
        occupied?

             Subsequently,   in order to comply with House Bill 219, supra,
  it became necessary      to establish a Motor Vehicle Safety-Responsi-
: bility Division of the Texas Department      of Public Safety,and it is your
  desire that this division be provided space in the new building.       In
  order to provide this space,it will be necessary      to finish a part of the
                                                                                      ,   :

Hon. Homer    Garrison,    Jr., page 2      (V-1521)




north wing of the building. which is now unfinished.   The division
in question is now being housed in the Department    of Public Safety
Headquarters    Building at Camp Mabry, Austin, Texas.     Your ques-
tion arises  out of an attempt to secure funds with which to perform
this necessary   finishing work.

           As originally  introduced.House     Bill 219, supra, provided
that the act was to become effective       on September-l.         and
$300,000 was appropriated       for defraying the expenses of opera-
tion from the effective date to August 31. 1952. House Journal,
52nd Leg.. R.S. 1951, pm 3133. Subsequently,the        Act was amended
so that the effective date was changed to January 1, 1952. but the
appropriation   for the first year of operation remained the same.
Senate Journal, 52nd Leg.. R.S, 1951, p. 1364. The effect of this,’
you state, is to provide $100,000 in excess of the actual operating
expenses of the Motor Vehicle Safety-Responsibility          Divisionwhich
could be used in providing quarters       for the division in the newbuifd-
ing. Concerning     the use to be made of this money you state:
          Y
             0 0 D This money, of course, will not be used to
     construct a building to house this division but to finish
    the unfinished section referred    to in the north wing of
    ‘the building by providing lighting, plumbing, heating,
     cooling and by the construction   of a floor and the neces-
     sary partrtrons.”   (Emphases   ours.)

          The appropriating     portion   of House     Bill   219, supra,   is Sec-
tion 37, which provides:

           ‘There   is hereby appropriated       out of the Opera-
     tor% and Chauffeur’s       License   Fund such money as
     may be necessary       for the purpose of defraying       the
     expenses of this Act through the biennium ending
     August 31. 1953. not to exceed the sum of Three Hun-
     dred Thousand Dollars        ($300.000) for the fiscal year
     ending August 31, 1952 and not to exceed the sum of
     Two Hundred Thousand Dollars           ($200,000) for the
     fiscal year ending August 31, 1953. So much money
     as is necessary     to administer    this Act shall be used
     for the employment       of necessary    clerical   and admin-
     istrative  help and for defraying      the necessary     ex-
     penses incident to travel, rental and any judicial hear-
     ings relative to court review, and including the print-
     ing of all necessary     forms required      be this Act, and
     including the purchase through bids taken by the Erd
     of Control of all necessary      furmture.     fixtures and
Hon. Homer     Garrison,      Jr., page 3        (V-1521)




     equipment of any,nature;       provided the number of
     employees     and the salaries    of each shall be con-
     sistent with the number of employees         and the sal-
     aries~ of each as ,fixed by the Legislature       in the
     Biennial Departmental      Appropriation     Bill ,for like
     service.   The Director     of the Department      shall
     prepare   a budget covering operations       through Au-
     gust 31, 1953, and submit the same for ~approval of
     the Legislative     Budget Board and no warrants         may
     be issued by the Comptroller        until the same shall
     have been approved.       Such budget~shall be itemized.”
     (Emphasis    ours,)

           Although not controlling.    we do think it significant to
 note that in accordance    with the provisions   of Section 37, supra,
 the Department ~of,Public Safety presented to the Legislatimd-
‘get Board for its approval the proposed budget of the Department
 on November    1, 1951. The Legislative     Budget Board, composed of
 Lt. Governor   Ben Ramsey. Chairman.        Speaker Ruben Senterfitt,
 Vice-Chairman,     Senators Howard A. Carney. Jimmy Phillips,
 Gttis E. Lock. and Keith Kelly, and Representatives        Jim Lindsey,
 Albert  Jones, Ray Kirkpatrick,     and W. H. Rampy. approved the
 budget, one item of which provides      as follows:

           ‘“That adequate quarters    and facilities   may be
     provided for the Safety-Responsibility        Division in
     the new Headquarters     Building for the Department
     of Public Safety. now under construction,        as author-
     ized by Senate Bill 439. Regular Session. 51st Legis-
     lature. the Department     is authorized   to supplement
     the aforementioned    building fund in the amount of
     $100,000 from the funds appropriated        for the fiscal
     year ending August 31. 1952, by House Bill 219, passed
     by the Regular Session of the 52nd Legislature.’

Thus, it is to be ,seen that the Legislative   Budget Board, composed
of members    of the 52nd Legislature    which enacted House Bill 219,
supra, undoubtedly construed the enactment as authorizing        the ex-
penditure .of the $IOO.OOO.OO in question for the purpose of provid-
ing adequate office space for the Safety-Responsibility     Division in
the Headquarters    Building of the Department    of Public Safety.

          It being fundamental that money may be withdrawn from
the State Treasury    only under a specific appropriation.1 the, sole



     l/   Article   VIII,   Section   6, Texas   Constitution.
Hon. Homer      Garrison.   Jr.. page 4     (V-1521)




question is whether Section 37 contains language which permits
the use of the funds appropriated    for the purposes    stated in your
opinion request.   It is well settled that no particular    form of
wording is required    to make an appropriation,and      all that is
necessary    i authority for the expenditure   and specification     of
              “2
the purpose.

          A reading of the appropriating     section of the Motor
Vehicle Safety-Responsibility   Act reveals     that the appropriated
funds may be used to purchase     “fixtures ,and equipment of any
nature.*    The term “fixture” has been often defined in the law.
It is said to be a general ruIe with regard to fixtures that things
personal   in their nature which are fitted and prepared      to be used
with real estate, and ar’e essential   to its beneficial  enjoyment,
become part of the soil and pass with it under a deed of convey-
ance, provided they are once annexed to the land and continue to
be so used.3

            In Hutchins V* Masterson.     46 Tex. 551 (1877). the court
defined   the term as follows:

          “The word ‘fixture’ if a legal term, which Lord
     Campbell   seems to doubt, it is universally conceded,
     is, as a substantive term, of modern origin.   . . .

           “It is said, the weight of modern authorities
     establish the doctrine that the true criterion   for
     determining     whether a chattel has become an im-
     movable fixture, consists in the united applica-
     tion of the following tests:

          “~1st. Has there been a real or constructive
     annexation of the article in question to the realty?

           “2d. Was there a fitness or adaptation of such
     article to the uses or purposes  of the realty with
     which it is connected ?

             “3d. Whether or not it was the intention of the
     party    making the annexation that the chattel should



    2/ National Biscuit Co. v. State, 134 Tex. 293. 135 S.W.2d
687 @40);   Pickle V* Finley, 91 Tex. 484, 44 S.W. 480 (1898).
    3/ Citizens’ Nat. Bank of Abilene v. Elk Mfg. Co., 29 S.W.
2d 1062 (Tex. Comm. App. 1930).
Hon. Homer    Garrison,   Jr., page 5    (V-1521)




    become a permanent accession      to the freehold?
    -7 this intention being inferable  from the nature
    of the article, the relation and situation of the
    parties interested,  the policy of the law in re-
    spect thereto, the mode of annexation, and the
    purpose or use for which the annexation is made.”

           The tests set out in the Hutchins case have been applied
in Texas and other jurisdictions     many times.    As a result, there
are decisions dealing with almost every type of property which
can become fixed to the realty in such a manner as to become a
part of the realty and hence a ‘“fixture.”     We,therefore,mustlook
to these cases with particular    .regard to the items which you
enumerate    in your letter to determine   if those items come with-
in the legal definition of “fixture’ as that term is used by the
Legislature    in Section 37 of House Bill 219. supra.

           It has been held that wiring which is used to convey elec-
tricity into a building is so attached to the realty as to become a
part thereof.4    Based upon the reasoning    of the decisions with re-
gard to those materials     necessary  to provide lighting for a build-
ing, it becomes    obvious that wiring and other materials    which are
placed in a building so as to provide proper lighting are fixtures
within the le,gal definition of that term.   They are ordinarily   placed
in the walls or attached to the real estate in such a manner as to
necessitate    damage both to them as well as to the real property
in any attempt to remove the lighting facilities     from a building.

           Plumbing,  when installed in a building. has been held to
be a fixture and to become a part of the real estateo5 We think it
is necessary   to apply this general holding to the fact situation pre-
sented here and on the basis of the reasoning     of the decisions   hold-
ing that plumbing is a fixture, reach the conclusion that the term
as used in Section 37 includes the plumbing necessary       to finish the
north wing of the new building for the Department      of Public Safety.



     4/ Keating Implement & Machine Co. v. Marshall         Electric
Lighrand   Power Co., 74 Tex. 605. 12 SW. 489 (1889).
      5/ Johnson v0 Pacific Land Co., 84 Ore. 356, 164 Pac. 564
(1917r In this case the court determined     that the pipes and other
materials   necessary  to supply water to a building were fixtures
based upon: first, an annexation to the realty; second. their adap-
tation to use in the building; and third. the implied intention to
make the annexation permanent,      See also. Annotation 81 A.L.R.
1440 (1932).
Hon. Homer     Garrison,   Jr., page 6       (V-1521)




          There are numerous decisions       to the effect that the an-
nexation of heating apparatus    to the realty causes it to become a
part of the realty.  Similarly,   a unified heating plant knstalled in
a building is considered   to be a permanent     part of it.   It has al-
so been held that the installation   of pipes and other equipment
used to convey the gas from a utility company’s        line to the stoves,
plates, and water heaters in a house makes those pipes and other
equipment fixtures and a art of the realty in the absence of some
                           js
contract to the contrary.

           Air conditioning equipment has been held to be a fixture
which, when installed in a building, becomes a part of the realty.8
Similarly,   it has been held in numerous cases that structures      and
improvements,      in the nature of paving, platforms, and flooring,   are
fixtures and become a part of the realty.9

          Based upon these authorities,    we find that property neces-
sary to provide lighting, plumbing, heating, cooling. and to con-
struct floors and necessary    partitions, are fixtures and when af-
tached to the real property become a part thereof.       We.therefore.
conclude that the items which you enumerate       in your request are
within the term “fixtures and equipment of any nature” as con-
tained in Section 37 of House Bill 219, supra. and consequently        the
funds appropriated   in that section are appropriated    for the pur-
poses for which you intend their use.




                                SUMMARY


          The Department   of Public Safety may use the
     funds appropriated  in Section 37 of H.B. 219, Acts
     52nd Leg.. R.S. 1951, ch. 498, p. 1210, for the pur-
     pose of finishing an unfinished section in the north



     6/ Young v. Hatch, 99 Me. 465, 59 Atl.             950 (1905); Capeheart
V. Foster, 61 Minn. 132. 63 N.W. 257 (1895).
     7/   Harris   V~ Harris,   174 S.W.2d   996 (Tex.     Civ. App.   1943).
    ?;/ Nine Hundred Main, Inc. v. City of Houston,             150 S.W.2d
460 vex.  Civ. App. 1941, error dism.).
     9/ City of Savannah v. Standard Fuel Supply Co.. 151 Ga. 145.
106 SaE. 178 (1921). See also. Annotation 13 A.L.R. 1454 (1921).
Hon. Homer   Garrison,   Jr., page   7   (V-1521)




    wing of the new Department       of Public Safety Build-
    ing by providing   lighting, plumbing. heating, cool-
    ing, and by the construction     of a floor and neces-
    sary partitions  since that construction     comes with-
    in the term “fixtures and equipment of any nature’*
    as used by the Legislature     in appropriating  the
    funds.

                                          Yours     very truly,

                                           PRICE DANIEL
                                          Attorney General

APPROVED:

Mary Kate Wall                            BY
Reviewing Assistant
                                                    Assistant
Charles  D. Mathews
First Assistant




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