                                  AWSTYN.     TEXAS    78711
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                                            November 13, 1970


       Hon. John C. White                                Opinion No. M- 729
       Commlssloner
       Texas Department of Agriculture                   Re:    Whether the Texas Depart-
       P. 0. Drawer BB                                          ment of Agriculture    may
       Austin, Texas 78711.                                     legally   enter Into a
                                                                certain contract for pay-
                                                                ment of a monthly consulta-
       Dear Mr. White:                                          tlon fee.
                       Your recent letter requesting       the opinion   of this   office
        concerning      the referenced  matter states      as followsr
                     “The Texas Department of Agriculture    respect-
               fully solicits   your opinion on whether or not the
               State of Texas can legally    pay for marketing serv-
               ices of a former employee who is working in and
               consequently   temporarily residing  in Europe.
                     “It is my understanding that we can because
               the scope of our market development work is broad
               based and covers services    and activities on be-
               half of our farmers in domestic and foreign markets.
               We have, therefore,   already done extensive work in
               Latln America and have made market surveys In Asia:
               One trade show has been attended in Europe.
                     “The former employee at present is located in
               Bologna, Italy,  studying International marketing.
               He will be free to travel throughout Europe most
               of the time during the next twelve months.
                     “He has agreed to represent t,he Texas Depart-
               ment of Agriculture  at trade shows, make surveys
               to determine market potential   for Texas products,
               study policy and procedures for exporting these
               products,  conduct product promotion and otherwise
               assist Texas shippers by providing them,with re-
               ports and Informatlon~ on a regular basis.
                    ?-le has further agreed to report his progress
               in writing to this department each month and pro-
               vide detailed  reports on specially  assigned projects.

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Hon. John C. White,        page 2       (M-729)


      He will work under the Immediate supervlsion  of the
      Texas Department of Agriculture Marketing Director.
           "The Texas Department bf Agriculture is desirous
      of entering Into a contract with this former employee
      and are agreeable to paying him a monthly consultation
      fee.
             "We,wlll appreclate'your        Immediate action     on
      this   matterr"~
        .~ The duties of the Commissioner of Agriculture  are set
forth 1n:Artlcle   51, Vernon's Civil Statutes. That Article  pro-
vides, in part; as follows~
             "The duties     of the commissioner    shall     be as
      followsr:
            11..,~.:' ,
            'i5, ', He shall Investigate   and report        upon the
      question. of broadening,the      market and of        Increasing
      the demand for cotton goods and all other              agrl-
      cultural      and horticultural  products, both        In t$e
      United States and in foreign countries.               . . .
            Line Item 9 of the current legislative    approprlatlon
for the Department of Agriculture,      which Is found in Section 1
of Article   III of House Bill 2, Acts 61st Leg., 2nd C.S. 1969
(General Appropriation     Act for tha biennium ending August 31,
1971), provides,   In part, as follows:
                    For expanding the marketing outlets
      for Te~a~~~gricultural~commod,lties,   . . . for
      salaries,   wages, travel, other expenses and
      contingencies   . . .,

             $1,882,213              $2,066,487    & U.B."
             Article,III,,Section     44 of the Constitution           of Texas
provides:
            "The Legislature   shall provide by law for the
      compensation of all officers,     servants,  agents and
      public contractors,    not provided for in this
      Constitution,   but shall not grant extra compen-
      sation to any officer,    agent, servant,   or public.

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     .      .




Hon. John C. White,     page 3         (M-729)



     contractors,  after such public service shall have
     been performed or contractentered    into,. for ~the
     performance of the same; nor grant, by appropriation
     or otherwise,  any amount of money out of the Treasury_
     of the State, to any lnd,ividual,  on a claim, real
     or pretended, when the same s'hall not have been
     provided for by pre-existing   law; nor employ any
     one in the name of the State, unless authorized by
     pre-existing  law."  (Emphasis added.)


              The foregoing  constitutional   provision   prohibits  ap-
 proprlations    by the Legislature    unless there Is in force a pre-
 existing   law to support such appropriation.        Austin National Bank
 v. Sheppard, 123 Tex. 272, 71 S.W.2d 242 (19341.
             We are of the opinion that Section    5 of Article   51, Ver-
 non's Civil Statutes,    which requires the Commissioner of Agriculture
 to investigate   and report upon the question of broadening the market
 and of Increasing    the demand'sf agrlcul&al     and horticultural     pro-
 ducts, both in the United, States and foreign countries,       constitutes
 a valid pre-existing    law to support the appropriation    for salaries,
 wages, travel and other expenses and contingencies       In connection with
 expanding the marketing outlets     for Texas agricultural    commodities.
           Unless restricted or limited by the Constitution, the State
 ha&the right to enter Into contracts.   Texas National Guard Armory
 Board v. McGraw, 132 Tex. 613, 126 S.W.23 b2/ (1939) .
             The'power of the State to contract exists as an Incident
 to the general right of sovereignty      and the State through the ln-
 strumentallty    of its various departments to which contractual     powers
have been delegated by the Legislature       may enter into contracts   not
 prohibited   by law and appropriate   to'the proper exercise   of the
 State's   contractual  powers.  Scribner's   Sons v. Marrs, 114 Tex. 11,
~262 S.W. 722 (1924).

             In view of the foregoing   authorities,  and under the facts
and circumstances    presented,   we are of the opinion that Section 5 of
Article   51, Vernon's Civil Statutes,     grants to the Commlssloner of
Agriculture    the authority   to enter into a contract with an individual
to perform certain market surveys i,n Europe and compensate such in-
dividual    for such services   by way of a monthly consulta$ion  fee.
                           SUMMARY
                The Commissioner of Agriculture,    pursuant to
         Article   51, Vernon's,Clvil Statutes,    hs(s the authority
                                  -3541-
Hon. John C. White,     page 4        (M-729,)




     under,the   facts and circumstances    presented to
                  a contract   to pay a monthly consultation
               he.rendering    of various marketing surveys
     and studies.to    an lndlyldual   temporarily residing  In
     Eur.ope.




                                                 neral   of Texas
Prepared d$..Pa.t Bailey
Assistant Att&i&y General
APPROVED:
OPINIONCOMMITTEE
Kerns Taybr,' Chairman
W. E. Allen, Co-Chairman
Roland Allen
Ben Harrison
Arthur Sandlln
John Reeves
MEADEF. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLAWHITE
First Assistant




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