                     OIEZNET    GENERAL
                   QlFg'EXAS




                   June 27, 1960

Honorable H. R. Nleman, Jr.
Executive Director
State Building Commission
State Office Building
Austin 1, Texas
                         Opinion No. WW-867
                         Re:   Whether expenses for
                               attorney's fees and
                               fees for an expert
                               witness incurred in
                               connection with a con-
                               demnation suit lnvolv-
                               ing land being acquired
                               for the erection of the
                               State Archives and Library
                               Building may be paid from
                               the appropriation desig-
                               nated for the purchase
Dear Mr. Nfeman:               of land for such building.
     You have requested an opinion as to whether
expenses for attorney's fees and fees for an expert
witness Incurred In connection with a condemnation
suit involving land being acquired for the erection
of the State Archives and Library Building may be
paid from the appropriation designated for the pur-
chase of land for such building. This appropriation
was originally passed as part of the General Appro-
priation Act of the 55th Legislature, the relevant
portion of which reads as follows:
          "There Is hereby appropriated out
     of the Motor Vehicle Inspection fund to
     the State Building Commfssion for the pur-
     pose of purchasing land, preparing the sfte,
     planning, constructing and Initially equip-
     ping a State Library and Archives Building
     to house the State Library, General Land
Honorable H. R. Nieman, Jr., page 2 (~~-867)

     Office, State Archives and Museum."
     House Bill 133, Acts 55th Legislature, 1957,
     chapter 385, pages870, 954.
Any unobligated balances remaining in this appropria-
tion as of August 31st, 1959, were reappropriated In
the General Appropriation Act of the 56th Legislature.
House Bill 4, Acts 56th Leglslat,ure,Third Called Ses-
sion, 1959, chapter 23, pages442, 514.
     You inform us that in the case of the expert wit-
ness fee, the State Comp~trollerof Publj~cAccounts has
refused to pay the claim for the fee ii~question from
the amount appropriated by the provision just quoted,
and that he has taken the posftion that a claim of
this t;ypeshould be pafd from the appropriation deslg-
nated 'For other salaries--Professional Services and
part time employees." House Bill No. 4, Acts 56th
Legfslature, supra, chapter 23, pages442, 511.
     We held In Opinfon W-699 that expenditures made
In the acquisition of a statement of facts to be used
in connection wfth the acqulsftlon of real property
for the constructfon of the Lfbrary and Archives Build-
ing were properly chargeable to the appropriation
'for other salaries or professional services, by con-
tract or part time employment" made In the General
Appropriation Bfll of the 55th Legislature, and that
such expenditures were also properly chargeable to
the appropriation for the purpose of purchasing land,
preparfng the site, etc., for the erection of the
Lfbrary and Archlves Buildfng. While the language
by which the latter appropriation was made is still
in effect, having been incorporated into the Appro-
priation Bill of the 56th Legislature by means of a
reappropriation, the language of the former appro-
priation is not: fn fts place there appears In the
Approprfatlon Bill of the 56th Legislature the slightly
different appropriation mentioned above, namely, an
appropriation "for other salarfes--Professfonal Ser-
vices and part time employees."
     We are of the opfnfon that the present expendl-
tures for attorneyss fees and expert witness fees,
like the expenditure fn Opinion Ww-699 for prepara-
tion of a statement of facts, are properly charge-
able either to the approprfatfon for professional
services and part time employees or to the appro-
Honorable H. R. Nieman, Jr., page 3 (w-867)

priatjon for purchasing land for the Archives and
Library Building. In reaching this conclusion, it
is necessary for us to consider two questions:
(1) Is the language of the appropriation for pro-
fessional services and part time employees such as
to make that appropriation the exclusive source from
which attorne 's fees and expert witness fees could
be paid; and T2), if &,   did the appropriation for
the purchase of the land for the erection of the
Library and Archives Building contemplate an expendi-
ture of this type?
     In answer to Question 1, we follow our holding
in Opinion W-699 in concluding that the appropria-
tion for professional services and part time employees
was not intended to be the exclusive source from which
compensation for personal services rendered in the
prosecution of a condemnation suit could be paid. We
do not think that the slight differences In wording
between the appropriation of the 55th Legislature and
that of the 56th are material in the present case.
     In answer to the second question, we are of the
opinion that any expenditure which reasonably appears
to be a necessary incident to the successful prosecu-
tion of a condemnation suit instituted in order to
acquire land for the erection of a building, is pro-
perly paid from the appropriation designated for the
purchase of such land. See Attorney General's Opinion
No. W-472.   An expenditure for the services of an
attorney or an expert witness falls within this class.
     Consequently, the expenditures here in question
are properly chargeable to either of the two appro-
priations discussed above, it being within the dis-
cretion of the agency to whom the appropriation was
made to determine which one.
                    SUMMARY
          Expenses for attorney's fees and fees
          for an expert witness incurred in con-
          nection with a condemnation suit in-
          volving land being acquired for the
          State Archives and Library Building
          may, in the discretion of the State
          Building Commission, the agency to whom
          the appropriations were made, be paid
                                                       .   .




Honorable H. R. Nieman, Jr., page 4 (w-867)

            either from the appropriation designabed
            for the purchase of land for such build-
            ing or from the appropriation for "other
            salaries--Professional Services and part
            time employees."
                          Very truly yours,
                          WILL WILSON
                          Attorney General of Texas



                          BY x Q-cued
                                            +
                             Lawrence Hargrove
LH:hb                        Assistant Attorney General
APPROVED:
OPINION COMMITTEE
J. C. Davis, Chairman
Bob Eric Shannon
Joseph G. Rollins, Jr.
Marvin H. Brown, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
