Honorable Coke R. Stevenson
Governor of Texas
Austin 11, Texas
Dear Governor:                   0,pinionNo. O-7074
                                 Rt?: Whether ornot under the     $~
                                      facts stated the Governor
                                      may approved a deficiency
                                      warrant in the amount of
                                      $17,000.00 for the purchase
                                      of right of way and ad-
           ;1:
                                      jacent lots for a highway
                                      approach to Texas College
                                      of Arts and Industries at
                                      KFngsv$lle.
           Your inquiry touching the above subject matter is as
follows:
          "The attached letter from Dr. E. N. Jones, President
     of Texas college of Arts and IndustrFes, Kingsville, is
     a request fo,ra ~deficlency~
                                appropriation in the amount
     of $17,000.00 to purchase right-of-wag and adjacent
     lots for a highway approach to the campus. As you will
     see by reading Dr. Jones' letter, the deficiency occurs
     in Item.88, :!GeneralImprovements and RepaFrs,' which
     is included under the section heading, 'Improvements,
     Repairs, Buildings, and Land Purchase Expenditures,'
     as printed on page 82 of the 'Supplement to Daily
     and permanent House Journal, Forty-ninth Leglsla-
     turS, Regular Session.'
          "It will be greatly appreciated if you ~111
     advise me If a deficiency appropriation can be
     made for the purposes expressed in Dr. Jones' letter."
          We also quote from the attached letter of Dr. Jones
to which you:refer, as follows:
           “The Texas College of Artsand Industries is con-
     fronted with an emergency in the securing of funds to
     purchase the right-of-way and adjacent lots for a
     highway approach to the campus. I hereby respectfully
     present for your consideration, a request fora ae-
Honorable Coke R. Stevenson, page 2 (0-7074)


     ficiencg appropriation in amount of $17,000 for this
     purpose.
          "The deflclenag occurs in item 88, 'General Im-
     provements and Repairs', which is included under the
     section heading, tImprovements, Repairs, Buildings,
     and Land Purchase Expenditures~. as prlnted on page
     82 of then 'Supplement to Dally and Permanent House
     Journal; Forty-ninth Legislature, Regular Sesml
     -amount     of $4,000 entered for Item 88 is insuffi-
     cient for present needs.
          "The following facts and observations   are   pre-
     sented in support of the above request:
          9.   In the preparation of a Master Plan for the
     development of the campus, it has been necessary to
     move the main entrance westward approximately one-
     third of a mile from the pres~entcorner approach at
     the interseation of Santa Gertrudis and North Arm-
     strong Streets.
          "2 . This plan has been recognized by the State
     Highwa Commission in Minute No. 21415, dated August
     24, 19t 5, which reads:
               "In KLEBERG COUNTY, IT IS ORDERED
          by the Commission that a Spur be aesFg-
          nated from State Highway 41 to the"entrance
          of the campus of the College of Arts and
          Industries in Kingsville, a distance of
          approximately 2000', on condition that un-
          obstructed right-of-way wIl1 be furnished
          without cost to this Department, and the
          State Highway Engineer is dlrected to pre-
          pars surveys for determina,tFonof location
          and right-of-way requlrements.t
          "The right-of-way map prepared by the~state Hlgh-
     way Department Is enclosed.
          “3 . The land to be purahased Is situated at the
     north end of the proposed development. on it is lo-
     cated the only house at present appearingon the en-
     tire right-of-way. Two new additions are under aevelop-
     q ent with lots on either side of the proposed highway
     strip. Twelve new houses have been aonstructed within
     two blocks of said right-of-way within the past four
     months. We ara greatly concerned over the possibility
Hon. Coke R. Stevenson, page 3 (O-7074)


     that the land Involved will rapidly increase in value
     due to the bullding and real estate development now
     occurring.
          “4 . Approxlmatelg two-thirds of the right-of-way
     will be donated, provided the entire development is
     consummated before addltlonal residence construction
     intervenes. Furthermore, we have no assurance that
     these offers will remain open, and it is therefore
     very Important, in order to secure the gifts, that
     the money be obtained at this time.
            “5 . Due to low .war-timeenrollment our local
     fund reserve is not sufficient to carry this extra
     load at present.
          "6 . The sum needed for the purchase   of the prop-
     erty which will not be donated is $17,000;!
          It is our opinion the deficiency warrant requested by
Dr. Jones may not lawfully be issued.  It does not fall withIn
the scope of Article 4351 of the Revised Civil Statutes, as
the same has been consistently and repeatedly construed by this
Department.
          Item 88 mentioned in connection with our request Is,
as stated, "General improvements and repaIrs--$.r,OOO.OO".
This item falls under the general heading of IMPROVEMENTS,
REPAIRS, BUILDINGS AND LAND PURCHASE EXPENDITURES, and is one
of several items dealing with improvements,, Thus, item 89 is
"remodeling and Improvements--gymnasium and swimming pool";
item 90 is "remodelin and improvements--administration build-
Fng ." So that Item 8 8 does not purport to cover all items of
Improvements nor even the major part thereof.
          The warrant is not sought for repairs. The item,
therefore, would appear to Include only minor improvements In
the nature of repairs and not such major Improvements as
amount to permanent Improvements, and certainly it does
not Include purchasing land.
          It has been the uniform construction of this statute
that It authorizes a warrant only for the purpose of supplying
casual deficiencies for a purpose for which there has been a
specific appropriation but because of unexpected and unfore-
seen conditions the appropriation has proven to be Insufficient.
Hon. Coke R. Stevenson, page 4 (O-7074)


          We have In several opinions denied the right to a
deficiency warrant when the purpose thereof was to make
permanent improvements.
          As appears from Dr. Jones's letter, the deficiency
warrant is in truth sought for the purpose of acquiring addi-
tional land for the lnstutltlon for which purpose no approp-
riation was made by the Legislature. Whether the purpose be
treated as one to purchase or one to make permanent lmprove-
ments the result Is the same.
          In our Opinion No. o-2118 addressed to Governor w.
Lee O'Daniel (copy of which we hand you herewith) you will
find we answered the following questions as shown, to wit:
           "1 . 'The Sam Houston State Teachers College
     at Huntsville has requested the sum of Twenty-five
     Thousand ($25,000) Dollars to be used In replacIng
     a dormitory which was destroyed by fire a few weeks
     ago.'
         "2 . YSouthwest State College at San Marcos has
    requested a deflclency appropriation In the amount of
    Three Thousand Five Hundred Sixty-eight Dollars and
    ~Twenty-eightCents ($3,568.28), t for the purpose of
    constructing a steam line to the auditorium-laboratory
    school bulldIng recently built by a PWA grant and loan.
          "3 . 'The Sul Ross Teachers College at Alpine,
     Texas, requests the sum of Three Thousand ($3,000.00)
     Dollars to be used in repairing the roof of the ll-
     brary bulldIng at that institution.'
          "4 . A modified request by the Southwest State
     Teachers College for a deficlencg warrant as follows:
          'I* + + $3,568.28 to supplement Appropriation
     ~-878, General Maintenance and Equipment, which has
     been exhausted. General Maintenance and Equipment
     is the only State Fund from which payment may be
     made of accounts for power, light, heat, plumbing
     and minor repairs on Power Plant. If this Deficiency
     Warrant Is approved to supplement the General Ma?nte-
     nance and Equipment Appropriation, i.twill be expended
     in the same manner as the regularly appropriated
     General Maintenance and Equipment Fund was spent,
     being therefore only a supplement to the regular
     Appropriation R-878.'"
Hon. Coke R. Stevenson, page 5   (o-7074)


          The answers given the above questions were as follows:
         “1. The Sam Houston State Teachers College at
    Huntsville la not entitled to a aeficI.bncywarrant
    for the purpose of replacing a dozmltory whlah has
    been destroyed by fire.
          “The rebuilding of a structure destroyed by
     fire stands upon prealsely the same footing as the
     construction of a new building and such replacement
     does not fall wlthin the rule we have hereinabove
     announced.
          “2 . Southwest State Teachers College at San
    Marcos Is not entItled to a deflaiency warrant In
    the amount of $3,568.28, or In any other amount, for
    the purpose of constructing a steam line to the au-
    dltorlum-laboratory school bullalng recently built
    ‘by a PWA grant and loan.
           “An examination of the Appropriation Bill passed
    by the 46th Legislature covering the Southwest Texas
    State Teachers College at San Maraos reveals that the
    project for which the issuance of a defiaie~ncywar-
    rant Is requested not only could have been but was
    considered b+ the Le Islature, for the Legislature
    provided thensum of f25,000 .OO for the fiscal year
    August   31, 1941, for ‘steam pipeline Including tun-
    nels, pipe and fittings. t This item of the Appro-
    prI.atLonBill was vetoed by your Excellency, in the
    exercise of the power conferred by the Constitution.
           “3.  The warrant sought by Sul Ross Teachers
     College at Alpine to be used In repairing the roof
     of the library building at that FnstFtutlon is not
     a cclsual deficiency, as we have defined it above.
     It appears an appropriation for this specific purpose
     was vetoed by your Excellency In the exercise of your
     constitutlonal authority.
          “The aapropriatlon to Sul Ross State Teachers
     College carried the following item under Improve-
     ments and Repairs : 47. General repaIrs and Fm-
     provements . . . $2,000.00 for each year of the
     bIennIum. If, since the closing of the aesslon of
                             q occurred an unexpected
     the Legislature there ha,
     happening or event which has made necessary Imme-
     diate repairs upon the buIldIng, the deficiency
     warrant might be appropriately authorized since
     there has been a specific appropriation--Item 47
Ron. Coke R. Stevenson, page 6(0-7074)


     above quoted--to form the basis for the conetitu-
     tional casual deficiency of revenues, but no such
     warrant should issue to care for needs however great
     of the Institution existing prior to the adjournment
     of the Legislature.
          "4 . Questlon No. 4 is based upon advice from
     Honorable C. E. Evans, President of Southwest Texas
     State Teachers College, that the request of the Col-
     lege for a deficFencg warrant has been amended so as
     to seek authority to supplement Appropriation A-878,
     General Maintenance and Equipment, which has heen
     exhausted, and from which payment is to be made of
     accounts for power, light, heat, plumbing and minor
     repairs on the power plant. If such appropriation
     has been exhausted, and, in the opinion of your Ex-
     cellency, additional funds are necessary for the
     purposes for which such appropriation was originally
     available, In order to enable the lnstltution to ef-
     fectively carry on its work for the balance of the
     fisaal year, a deficiency warrant may be approved
     in the amount necessary, in your judgment, for such
     purpose.
          "Such warrant should not in any event include
     the cost of steam pipe line. That Item is definitely
     out. Any such claim or estimate should, of course,
     be itemized."

APPROVED FEB 5, 1946               Yours very truly
/s/Carlos C. Ashley
FIRST ASSISTANT ATTORNEY GENERAL   ATTORNEYGENERALOFTEXAS
APPROVED OPINION COMMITTEE          /s/ Ocie Speer
BY BWB   CHAIRMAN                       Ocie Speer
                                         Assistant
OS/JCP-dhs
Enclosure-l
