                                           April   14. 1939


Honorable E. H. Thornton,          Jr.
Chairman.   Appropriations         Committee
Hous~e of Representatives
Forty-sixth  Legislature
Austin, Texas
                                                   .,
Dear    Sir:
                                       t
                                                   Opinibn~No.      O-632
                                                   ore: ,Authority of Legislatur,e    to ap-
                                                          propriate    money in payment of
                                                          deficiency warrant    issued by
                                                      .‘. Governor    for purpose of erect-
                                                          ing a major building on the cam-
                                                          pus of Texas institution of high-
                                                          ‘er learning.

          By your letter of April 13, 1939. you request                   of this Depart-
ment an opinion upon the following question:

               ~-Under the Constitution and laws of this State, particu-
       lar reference    being made to Article 3. Sections 44 and 49 of
        the Constitution and Article   4351 of the Revised Civil Statutes
       ‘of this State, does the Legislature  have the authority to appro-
        priate money for the payment of a deficiency warrant issued
        by the Governor    for the purpose of erecting a major building
        on the campus of one of the institutions of higher learning of
        this state 7”

            Your request does not seek to have ~this Department      render an
opinion upon the validity of a particular   enactment and does not convey
to the Department   information  of the particular   circumstances    surround-
ing the issuance of such deficiency warrant.     so that .the Department    must,
in reply to your question, necessarily    be content ‘to point out to you the
general rulers governing such matters.

               ,Article   3, Section       44 of the Constitution   of the State of Texas,
provides       as follows:

              “The Legislature     shall provide by law for the compensa-
       tion of all officers,  servants,  agents and public contractors,
       not provided for in this Constitution, but shall not grant extra
       compensation     to any officer, agent, servant, or public contractors,
Hon. E. H. Thornton,     Jr.. April   14. 1939, Page   2




     after such public service     shall have been performed      or con-
     tract entered 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 individual.   on a claim, real
     or pretended, when the same shall not have been provided for
     by pre-existing    law; nor employ any one in the name of the
     State. unless authorized bye pre-existing     law.”

            Article 3. Section   49 of the Constitution    of the State of Texas.
provides   as follows:

             “No debt shall be created by or on behalf of the State.
     except to supply casual deficiencies    of revenue, repel inva-
     sion. suppress   insurrection,  defend the State in war, or pay
     existing debt; and the debt created to supply deficiencies   in
     the revenue, shall never exceed in the aggregate     at any one
     time two hundred thousand dollars.”

              It is settled law that Section 44 of Article  3 prohibits   the Leg-
~islature from appropriating       State money to any~person or corporation
 on any claim, unless, at the very time the appropriation         is made. there
 is alreadyiinlomrsome         pre-existing  vaIid law constituting the claim
 the appropriation     is made to pay a legal and valid obligation against the
 State. And by legal obligation is meant such obligation as would be en-
 forced by the courts against the State, in the event the Legislature        should
 permit the State to be sued. Fort Worth Cavalry Club vs- Sheppard
 (Supreme Court), 83 S. W. (2) 660.

           Public offices and officers being peculiar ,creatures   of law,
their powers  and duties are necessarily    &fined and limited by law. It
follows that a public officer has authority to make for the State only such
contracts as he is expressly   or impliedly  authorized by law to make.    If,
therefore, a public officer makes a contract purporting    to bind the State,
and in making such contract, he exceeds the limits of the authority con-
ferred upon him by law, the contract is void and does not give rise to
such an obligation as would form the basis of a judgment against the,State
in event the State should permit itself to be sued.

             Illustrations    of the applications   of the above principles   are to
 be found in many cases passed upon by the courts of this State. In the
 caste of Fort Worth Cavalry        Club vs. Sheppard, cited supra. the Supreme
 Court, appIying the principles       above set out, held that the Adjutant Gen-
 era1 of the State was without express         or implied authority to contract for
 a five yearlease~    to -the State of realty to be used as an aimory.      and that.
 therefore,~ instruments      issued by the Adjutant General in lieu of deficiency
 warrants%      payment~~ofthe rent for such-property,‘approved         by the Gov-
 e~rnor, we.ze..iavalid. aiace the c’ontract which was’ the.basis      thereof was
void,.and   the Le+gislature was therefore unauthorized to appropriate           money
:in payment there’of,
                              -.                                       h
_-   _




         Hon. E. H. Thornton,      Jr., April   14, 1939. Page    3.




                     In the case of State vs. Haldeman,       163 SW.    1020, (writ refused).
         the Legislature   had appropriated     $47,500 for the construction      of two build-
         ings and. after the contract was let. changes made in the plans and speci-
         fications resulted in the contractor      furnishing   at his own expense material
         and labor amounting to approximately         $13.000 not included in the original
         contract.   The Thirty-first    Legislature    appropriated    $11,000 to pay the
         claim, providing that it should first be established        by suit against the State.
         Suit having been brought. the Court of Civil Appeals          held that the amount
         specified for the buildings in the original Act was a limitation upon the
         power of the officers    of the State to contract for the construction       of those
         buildings,  that the contract above such appropriation         was invalid, and
         therefore   not a lawful claim against the State.

                    of course., it is clear that if the officer was originally  without.
         authority to make the contract, the act of the Governor     in approving   the.
         deficiency warrant    is wholly ineffective to impart any validity to such un-
         authorized  contract.

                     Your attention is likewise directed to the fact that, in any event,
         the authority of the Governor is limited, both by the cons’titutional provi-
         sion and by the provisions   of Article 4351, Revised Statutes, 1925, to the
         approval of deficiency warrants    to an amount not exceeding   $200,000. and
         such deficiency warrants    as may be approved above the amount of. $200. -
         000 are invalid both by the constitutional   provision and by the provisions
         of Article 4351, Revised Statutes.

                     You are,therefore.     advised   in answer    to your question   as fol-
         lows :

                      If authority, express    or implied, to contract for the erection of
         ~the building to which you refer was not conferred         by some pre-existing
         valid law, the officers     of the State contracting   for the erection of such
         building acted in excess of their authority.         The contract, under such cir-
         cumstances,     did not constitute the making of a legal and valid obligation
         against the State. The act of the governor in approving           the issuance of a
         deficiency warrant      in payment of suc~h contract could not render that con-
         tract valid.    The contract out of which the claim’arose.        therefore,  not hav-
          ing been provided for by pre-existing       law, the Legislature.    by virtue of the
          pr~ovisions of Section 44 of Article 3 of the Constitution. is without author-
          ity to appropriate    money of the State in payment of such deficiency warrant.

                     In any event, if the Governor      had approved deficiency warrants
         to the amount of $200.000 at the time this deficiency warrant was approved
         ~by him, under the provisions    of Article 4351. and under the provisions     of
         the Constitution,  such warrant    is invalid.

                     ,We trust that this may answer your inquiry.     If. however,  it is
         not sufficient for your purposes,   and if you desire an opinion of the Depart-
         ment directed to the determination    of the validity of a particular  appropria-
         tion which you may now have under consideration,       we would suggest that
                                                                                      .-.-



Hon. E. H. Thornton,     Jr., April   14, 1939. Page 4.




you frame your question so as to advise us of all of the circumstances
attending and surrounding the making of the contract upon which the de-
ficiency warrant was based and the issuance and approval of such defi-
ciency warrant.

                                                     Yours    very truly

                                          ATTORNEY           GENERAL       OF TEXAS


                                          By   /s/    R. W. Fairchild

                                                      R. W. Fairchild
                                                            Assistant




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APPROVED:


js/Gerald    c. M~IIII

-ATTOm   EY GENERAL        OF TEXAS




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