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                 T~EATTORNEY                GENERAL
                            SDIE’%%XAS




                                                   June 5, 1939


     HonorableGso. H. Sheppard
     Comptrollerof Public Accounts
     Austin,Texas

     Dear Sir:                       opinionNo. o-753
                                     Re: (a) Ho appropriationhas bean made
                                         to pay judgmentin the case of
                                         CaladoniaSteel Co. v. State of
                                         Texas et al; (b) the Legislature
                                         cannotappropriatemoney by
                                         concurrentresolution.

     Your letterof May 31, 1939, addressedto this office,reads as follows:

         "On pages 1432 and 1433 may be found the appropriation
         made by the Legislaturefor uses of theHighway Funds
         for the presentbiennium.

         “Article4357, B. c. s., 1925, providesthat no claim
         shall be paid from appropriationsunlesspresentedto
         the Comptrollerfor paymentwithin two years from the
         close of the fiscal year for which such appropriations
         were made, but any claim not presentedfor payment:
         within such periodmay be presentedto tha Legislature
         as other claimsfor which no appropriations are available.

         "I am attachinghereto a claim presentedto this department
         by the State HighvayDepartmentfor the paymentof a judgment
         in causeNo. 53909, requestingyour opinionas to whether
         there are funds appropriatedfor tha paymentof this claim
         in the presentappropriation bill.

         "In the event youhold there are no fundsavailablefor the
         paymentof this claim, it might be that the claimantshould
         desire to presentthe claim to this sessionof the Legislature.
         We shall, therefore,appreciateyour immediateattentiontc
         this matter.


          “Pleasereturn the attachedclaim to this departmentwith
          your opinion."
HonorableCeo. H. Sheppard,June 5, 1939,page 2   (C-753)



Accompanyingthis letter is the claim referredto therein,and to which
is attacheda certifiedcopy of a judgnmntobtainedagainstthe State
of Texas and the HighwayCommissionof the State of Texas by the
plaintiff,CaledoniaSteel Company, Said judgmentwas renderedin the
126thDistrictCourt of TravisCounty,November28, 1938, and is for the
sum of Two ThousandSix HundredSeventy-five & No/100 ($2,675.~)
Dollars,with.interestfrom said date at the rate of six per cent (6)
per annum, and all costs of suit. The Highway Commissionhas approved
the claim for payment.

You desire to know *whetherthere are funds appropriatedfor the
paymentof this claim in the presentappropriationbill," pages 14.27
tc 1435, inc.,Acts of the RegularSession,45th Legislature,and
being an appropriation for the supportand maintenanceof the State
Highway Departmentfor the two-yearperiodbeginning September1, 1937,
and endingAugust  31, 1939.

We have carefullyexaminedthis appropriationand have been unable to find
any specificappropriation for the paymentof this claim,or any
languagein the rider attachedtheretothat can be construedas being
broad enoughto bring said cl.aimwithinita purview.

The judgment,basis of this claim,shows upon its face that it is for
the purchaseprice of steel sold by the claimantto the StateHighway
DepartmentduringJune and August, 1y~26, and deliveredbefore January
10, 1927, it necessarilyfollowsthat they were chargeableto the
appropriation mada to said departmentfor the fiscal year ending
August 31, 1926.

If the Legislaturehas aver made anotherappropriationto pay this claim,
we have not found it. This answersyour specificquestion.

This judgmentwas obtainedin a suit broughtby the plaintiffunder
authorityconferredby S. C. R. No. 3: passed at the SecondCalled
Sessionof the 43d Legislature,the concludingparagraphof which
reads as follows:

     "If and when the plaintiffin said suit shall have
     recovereda final judgmentin said cause the Highway
     Commissionof the State of Texas is hereby authorized
     and directedto pay said final judgmentwhich may have
     been secured,togetherwith all the court costs Out of the
     funds of the HighwayDepartment,and it shall be the duty
     of said HighwayCommissionto pay such judgmentand costs
     if and when it is secured.w'~
HonorableCeo. H. Sheppard,June 5, 1939,       Page 3 O-753



We have calledyour attentionto the above questionbecauseit may be
contendedthat it is authorityfor you to pass this claim to voucherto
be paid out of the funds appropriatedto the State iiigiwa::
                                                         Department
by the secondparapaph of the rider attachedto the currentappropriation
bill. If it shouldbe so contended,than you are advisedtlhato-x
Constitutioninhibitsthe Legislaturefrom making an appropriation of
money by concurrentresolution. See DepartmentalOpinionNo. 23%,
dated September26, 191, addressedto Hon. Ion A. Smith,Comptroller,
signedby E. F. Smith,AssistantAttorneyGeneral,and approved
         Cureton,AttorneyGeneral,a copy of which is enclosed.
bz C. 1.1.

We are herewithreturningthe claim submitted.

                                        Very truly yours

                                  A’ITORVEX   GENESAL OF TEXAS

                                  s/ Bruce W. Bryant



                                  BY
                                       Bruce W. Bryant
                                             Assistant

BUB:MR/ldw

ENCLOSURE

APPROVED
s/ GeraldC. Mann
A!l’!PORXETi GElm?AL   OF TEXAS

APPROVED
OPINION
COMMITTEE
BY H. Q. B.
