                       December 3, 1965


Honorable Robert 8. Calvert            Opinion No.
                                                .  C- 557
Comptroller OS Public Acoounta-
Austin, Texas                          Rer   Whether the purchase of
                                             refrigerators,   ranges,
                                             slnke,~ a combination of
                                             the three, perculatore,
                                             cupe, and the like need
                                             statutory pre-exlstlng
                                             law to be paid out of ..
                                             funds ln the. State Trea-
Dear ‘Mr. Calvert t                          sury and ,related queatlona.
           You have   requested   td   opinion   of this   office   concerning
the following   queetlonss
            “1.   Please advise if the purchase of         ‘
     refrigerators,    ranges, sinks, a comb&&Ion
     of the three, perculatora,    cups, and etc.,
     need statutory pre-exlating     law to be paid
     out of funda.lri the State Treasury.
           “2.  If you find that statutory law is                      ’
     not required, are the ltqna listed payable out
     of this type of appropriations   or does their
     payment require a; specific  appropriation?
           a.  ‘Consumable auppll~a and materials,
     current and recurring operating expenses (ex-
     cluding travel expense) and capital outlay.’
          b.   ‘For payment of salaries and’other
     necdaa~y expenses ln carrying out the rovlalona
     of, (Statutotiy Acts creating the agenoy P .’
             “3.  If. you find that the accounts ‘in
      question oan be.lqally~pald,     please advise It
     .lnvolcea’ for consumable supplies necessary for
      the operatlon,of    the purchased Items may be
      pa,id. out of the appropriations  quoted under
      question #2?”


                                  -26921
           7



lion; Robert S. Calve&,   page 2 (C- 557)


In addition to the foregoing, you have also stated In your
letter that various State ageticle? ,or de’partmeri$a seeking to.
purchase such equipment as refrigerators,    ranges, sinks, ‘per-
culato?a &rid cups, have given as their readon why such equlpmen
should be considered neceadary In car’rylng out the statutory
duties of the agency the explanation that:.
           “The existence of the equlpmi3nt makes it
     poaalble for the State to gain more hours of
     prod.uctive work. The ,~mployeea are on stall at
     all time‘s and work man{ nights and weekends as
     the situation demands.
             In regard to the first question posed’, pertaining to
the necessity    of pre-exlatlng  law to purchase such Items as
refrlgeratora,~rangea,     sinks, perculatora and cups with funds
paid out of the State Treasury, Section 44 ~f.Artlcle      III of the
Constitution    of Texas provides In pert that:
         “’ “The Legislature shall provide by law
     for the’ compensation of ill officers,    servants,
     agents aqd public contractors,     not provided for
     in t&a Constitution,     but shall not gran$. bxtra
     compenaatlon to any tifflcer,    agent, ~aervant, or
     public contractora,    after such ptibllc service
     shall have biien D&formed or contra& entered
     Into, for +he pei.?oriance of the same; tnor fgrantr
     by approprlatlon    or otherwise, enyanoun o
     money out of the Treasury of the State, to q
     ‘indlvldual,  on a claim, real or pretended, when
     the same shall not have been provided for by
     pre-exlatlng   law; nor ,employ any one in the
     name of the State, unless authorized by pro’
     existing law. ’ .(Emphaala idded).
The foregoing constitutional    provision haa ~bt$encon&fied by
the Courts of thib State to mean that the Legislature cannot
appropriate State money to any individual unleaa at the tiZ
the .aooroarlatlon   la made there la already a force home vall"
law cbnatitutlng    the alalm the appropriation   I,@ made .to pti a
legal and valld’obllgatlon    of .the State.   Austin National-
v. She a+di~l23’T&x. 272, 71 S.W.2d 242 (1934          C    I
-8              v. Sheppard, 123 Tex. 352, 71 s.wi:d’-%-?%)~
Port Worth Cavalry Club v. Sheppard, 125 Tex. 3 g 83 S.w.2d
  bO (1933) . St ate v. Steck company, 236 S.W.2d 366 (Tex.civ*APP*
1951, erro: ref.):
           Cotii&utntly, .for’a State agency to purchase refrig’
eratora, ranges* .alnka, perculatora,   cupa_ end the like there
muat first be a pre4xiatlng     law which would authorize au+       .i
                                                                     i
                    ..
                                -2693-.
:Eon. Robert S. Calvert,     page 3 (C-557)


 purohaaea;,and aecpndly, there must be an appropriation  to the
 State agency of funds out: of which such purcharea could be made.
           III Attorney    Oeneral’a   Opinion No. c-546   (1965),   it
 was held thetr
            (I
                  ‘the authorlzatlon      to the Texas State
      Board ~S’Reniatration      for ProfessIonal Enulndera.
      as well aa to oth& state agencies and dO&UtmeniS,
      to maintain end oDerat offloe faeilltle8         eaITit(l.
      with it ‘the flmttik     authcirlzatlon to furnish thee6
      office  facllltlea    ,wlth BUch e i ment, furnlahlnga
      aria decor as it a&es fit, wi~imita                of its
      approprlatlona.      . . .* (Emphasis added).
             In view oi the foregoing,   we are of the opinion that
 ,there exists aurriclent   pre-exlatlng  law to authorize State
,agenclea end departments t6 purchase such refrlgeratora,     ranges,
  sinks, perculatora,   cups and the like as such agency or depart-
 ment sees fi.t, within the limits of lta apprdprlatlona.
            ,Your .next question pertains to whither the purchase
 of auoh, lteme 88, refiigeretora,    ranges, aUka, perculatora  end
 cups by a State agency or, department must be payable out of a
 speblfic apprbprlatloh      or whether such purchases may be paid
 out of appropriations     for the SollowIng:
            “Consumable supplies end materials,’ current
      and recurring operating expenses (excluding travel.
      expense) and capital outlay.




             We are of the opinion that the purchase of &uoh Items
 as listed above could be paid out of a apeclflc approprlatlon            .
 fork the purchase of such Items, or In the alternative     such Items
 Wuld be purchased from available funds In either of the fore-
 going type@ of appropriations      quotad above. The purchase of
 refrigerators,    ranges,  t+&e, perculatora end oupa would cer-
 tainly fall’wlthln     the terminology “capital outlay” or “other
 neceaaery 0xpen808,” aa used in the foregoing examples.
            Your last question pertains to whether consumable
 ~ppllea   necessary for the operation of refrigerators,  ranges,
 8lnka, perculatotiti and oupa may be purchased out of the ap-
 Propriatlon examplba quoted ln connection with your aeaond
 Weatlon end set forth heretofore.



                                              .-
 Ron. Robert 9. Calvert,    page 4 (C-5571


            In answer to this question, it should first be. nom.
 ti+t there’could  well be two types of consumable auppl$ea urd
 in connect:on with refrigerators , rengea~ sinks, peroulatorr
 end cupa. The SIPat type OS con’aumeble auppllea would be thaw
 used for the aare end maintenance of the equipment sought to b
 .pur&haaed--soap, dish towels, end the like..   The second type ef
  coneumableauppllea’ would be thoa’e~used while making use of a
 equipment sought to be purchased --rood, coffee,   cream, sugar
 end the like.
           The first of these types of consumable supplies--tboc
.uaed f&r the care’ end malntenence of. the.refPlgeratora,    range&
 sinks, peroulatora end cups--would certainly     $a11 within en 8a~
 thorlzed expenditurefrom either of the types of approprlatia.,
 examples referred to In your second queatlon.      This tpe o?
 purchase would certainly fall within the tdrmlnology       consu.+
 supplies end materials”  or “other necessary expanse.”
             However, the purchase of. such Items as food, coffeG
’ creem or auger presents a different   question.  Se&ion 51 0r
  Article III of the Constitution of Texas provides in part t&t?
              “The Leg.l,alature shall have no power to
 .f   make    any grant or authorize the making of any
      grant    of public tioney to eny individual,  aaaoala-
      tion    of Individuals,   municipal or other corpora-
      tlona    whatsoever.    . . .’
 Se&Ion 6 of Article     X’V’I or the Conatitutlon,of    Texas providti’
 In pert’. that a
            “No appropriation for private      or’lndlvldual
      purposes shall be made. . . .”
             In the oaae’0; Terre11 v. Middleton, 187 S.Y. 367
 (Tex.Clv.App: 3916, error ref ) th c      t habbefore It fw '
 consideration   the foregoing c&aat&,~~~l     provialona ln cM&~+i
 neation wlth.en approprlation for the Oovernor’a manaio**             l

 Co@ in Its opinion stated theta
            “Conalderlng the clrcumatanoea under which
      the convention met, the evlia .aought; to be remedied8
      end the .enda to be accomplished, as well as the
      personnel of the members, It cannot reasonably
      be held that ‘it ever entered the mad of Euly
      member that the Governor, under the guise Of
      maintaining the Oovernor 'a mansion,would be
      voted grooeriea   to maintain his houa~~~~
      be vot,ed food end care of the Governor aa h

L      2                        -’ -2695-
                                                                    ‘:, ,
       .
                                         .;



    Bon. Robert S. Calv&,      page 5 (C-+7)


           gasoline E@ repairs for his automobile, would
           be voted emboseed oerda end printed lnvltatlona
           to hIa social functions, end liquors, meat,
           vegetables,.                            . ..I
                 (1. . ;

                  “Clearly,. the Items for which' the comptroller
           aou&t and dealred to laaue state warrants end
           frin! which aotlon’he was restrained,     were for prl-
           vate”and Individual purposes, ahd .not for the public
           good,   end the approprltitlon made for that purpose
           by;yt;&L; %al&ine was directly      in the face of
                      % II 6, of the Conatltution,    which commands
           that ‘ho a&s?oorlatlon for Drlvate or Individual
           purposes ahilibe     ziade.’ The articles   named were



           3’urnlahlng gasoline for~hl’a automobile, or b fur-
           nishing groc&lea    or other luxuries for lili&hK-
           e,     ‘* (Emphasis added).
               In view or the foregoing, we are of the opinion that
    appropriated funds of e State agency or department could not be
    USed to purcbaae auch’ltema as food , coffee, cream3 sugar. and
    the like which would be ultimately consumed by employees of or
    vlaltora to the State agency or department,.
                            SUMMARY
                  While there must be pre-exlatlng lari to au-
           thorize the Legislature to appropriate funds fox+
           us& by State agenclea or departments In thelr pur-
           chase of euch Items as refrigerators,   ranges, sinks,
           peroul,ators and +pa, there presently exlata auf-
           flcient   pre;cxlatlng law to authorize State agenclea
           end departments to purchase such refrigerators,
           ranges, blnks, peroulators end cups ‘as they see
           fit, within the llmlta of the agenoy’a or depert-
           me~%;~5y~giom3~           Attorney 0e~eral’a 05lnlon

                 Purchases of such items as r8frlgOratOr8,
           ranges, sinks, perculatora end cups by a State
           agency or .depa.rtment could be paid out Of a
           apeclfic..approprlatlon   for the purchase of such
           items, or ln the alternative    such Items could
i                                  2

                                     -2696-         _T
             Hon. Robert 9. Calvert,      page 6 (C- 557)


                   be pur’chaaed from available    funds     in    either 0s~
                   the two llluatratlve     appropriations        set forth.
                          A State agency or depertment~may purohaee
                   ooneumabie supplies or materials to be tieed in
                   the car;& and maintenance of such items as refrlg-
                   orators, I?an&ea, alnke,’ perculatora and cups.
                   However, a State agincy or department Is prohibited
                   by Section 51 of Artiole ,111 of the Constitution
                   of ‘Texas and Section 6, of Article XVI of the Con-
                   stitution   of Texas. from purchasing with State funds
                   such it.ema,ad food, ooffee, creem, and 8uge.r whloh
                   would ‘ultimately be coneumed by. employees of or
                   visitors   to the State agency or department.
                                              Very truly     yours,
                                               WAOQONER CARR
                                              .Attorney aeneral,


         .
                                                  Pat Bailey
                                                  Aaalatent
             PBrmkh
             APPROVED:
                                                                  .
             OPINION COMIUTTEE
             W. V. Qedpert, Chairman
             John Reeves
             Qrady Chandler
             Roger Tyler
             Alan Minter
             APPROVEDFOR TEE ATTORNEY QENERAL
             BY: T. B. Wright                                                   l




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