                                          Pebruary 15, 1939


Ronorable 000. B. Sheppard
Comptrollrror Publla &ooounta
Austin, Tares
Dear Sir:
                    opinion lo. o-43
                    Rer Claim of Rwell la110
                        for rent for building
                        ge;;d to State Tax

         we are in reoript or hour letter oi February 4,
1939, togotherwith the follwIng enclosurrs:
          1. Requisition for otfioe spaoe fra the State
Tar Bbard to fha Stat8 Board of Control, Pated August 24,
1937, 8howIng the amount of rpaoe needed.
                 Call for bid8 by the State Board of Control,
dated Septkber     3, 1937.
          8. Bld of Rwell Xallr, dated September 7, 1937,
addressed to the State Board o? Control and orferIn,gthe
fourth floor of the lalle Building for a period of two
  afr from September 1, 1937, for an annual rent of
r2400 payable at the rate of $200.00 per month.
          4. Letter from the State Tax CommissionerAlbert
I[.Daniel to Mr. J. R. Ham, Seoretary of the State Board ot
Control, 4ated September 10, 1937, urging aoceptanoe of the
Nalle bid.
          8. copy of letter, dated September 14, 1937, irom
the State Board :oiControl to the Stete Tax Board adrlalng
aoceptanoe of the Nallo bid.
          6. Additional to those instruments,we have been
furnishedwith the original letter, dated September 14,
1937, mentioned above, and with oopy of e letter dated
September 1, 1937~.rrom Albert K. Daniel, State Tax Com-
aissioner, to Mr. #alla advising of the desire of the State
Tax Board to oontinus the lean. on the fourth floor of the
Nalle Building at the same rental whloh had been paid in the
past (whioh mu undqrstendwas $200.00 per month).
    Eon. 000. II. Sheppard, ?obruary L5, 1939, Page Z



             7. Original lottor from Hr. Nalle to Xr. Albert
    X. Daniel, State TAX Oolmlasloner,dated September 4, 1937,
    aoknowledglngraoelpt of said letter dated September 1,
    1937, endloo)Ptlng the offer therein made.       ./
              0. Copy of latter dated 8eptamber 14, 1937, from
    tha State Board of Control to Mr. RiGelI.
                                            Nalle advising
    that the Board h a l
                       doaepted his bid.
             9. Ph&batatio oopy of Senate Bill 80. 119 of the
    eurront.Laglalature.
             10. Letter from Jerome Sneed, Jr.,    Attorney,    *,
    to Albart II.Daniel, 8 ate tax Commlaoloner, dated February
4   t, 1939, adrlalng that%. lalla la standing on his rantel
    oontraot and la olalming a llan upon all furniture;  flx-
    turoa and lqulpment looated in tha leased premlaas and ~111~
    hold the aaim until his 01al.m?or rent is latia?aotorll~
    dlapoaed of.
              You ask : our opinion ln response to the following
    questiona:
              "1. 1. auoh ?urnlt&e and fixtures lubjeot to
                    .la lien olaiaed
         tha landlord                by the landlord in this
         ease?

              -2.  Ia the appropriationfor ofrloe rent made
         to the Wats Tax Board in the General Appropriation
         tl.lll;ll arallebla for the paymant,o?the rent

               "s. I? FOU anawar the foregoing queatlono in
         the neeatlre, then plaaae advise this department tha
         prooedure to follow in obtaining possession o? the
         furniturep d l~ulpmantna
              The Regular Session of the 43th Leglaletureby
    Seneto Bill No. MS, known es the Departmentalhneral
    AppropriationBill, at page 1478, mada the biennium appro-
    priation ror the malntenanoeof the State Tax Board,
    and under Item 18 of the ap roprlatlonafor that board,
    it reoltes: v?rioe rent, i2400 for laoh year of the
    biannlum ending August 31, 1Q3Q.W
-~      .


                           .   .
                       ,




                                                                                   I
                                                          J
                                   Eon. Qeo. 8. Shepbard, February 15, 1939, Page s



                                             The lpproprlatlono? the sum or #2400.00 per
                                   year for the biennium beglnnl,ngSeptember 1, 1937, for
                                   ofiloe rent for the State Tax Board, unquestionably
                                   oerrled with it the authorityfor the Board to house
                                   lta~l? ln rented ouartera at an expense not exoeedlng the
                                   amount approprleted. We think thla necesaarllyenvisaged
                                   the right to make some kind a? en agreement for the
                                   renting of orfloe apeoea.
                                              Xn the oeae or Johnson vs. Smith, 246 8. W. 1013,
                                   Supreme Court, the Comptroller,Lon A. Smith, had entered
                                   into a two year oontraot with oertaln persona for them to
                                   oolleot oarteln inharltanoe  taxes. The law authorizing
                                   the making of the oontraot,~aaliepa&led.Thorearter,
                                   but within the term of the oontraot,  oolleotIonawere made
                                   and the County Tax Colleotor aid the ten per oent oom-
                                   mlasIona to the oollecbora. 8his was a Plead=%8 aotlon
                                   brought by Jo-on,    the Tax Colleotor,to oompel the
                                   Comptrollerto oredlt his eocount with the amount thus
                                   paid the oolleotors. we 00~~ peregrapha 2 and & Or the
                                   opinion, as ?ollowai
                                             “(2) Raapondent lnalats that the artlola
                                        OS the statute under whloh the ootitreot wee medo    - ,
                                       did not authorize a oontreot for any fixed or
                                       de?lnlte period of time,  and thererore the oontreot      .“~
                                                                                                   .~~
                                       ran without authority and unenforoeeble. It would
                                       be unreasonableto hold that the Leglaleture au-
                                       thorized and lnatruotedthe oomptrollorto make
                                       a oontraot,rlthsome suitable person or persona
                                       rho would render diligent aid ltithe oolleotlon
                                       of lnherltanoetaxes and periorm aerrloea that
                                       would entail muoh outlay o? time,   lmrgy, and
                                       expense, and yet 1Mt same to a oontreot at will.
                                       lo suitable peraon or person6 would be rllllq
                                       to enter into auoh a oontreot. ‘t must be lm-
                                       plied thet’the authorlty given lnoluded the                   .,
                                                                                                      1
                                       ~fk;~eof   a oontreot for l‘glron or definite  period
                                                .                                                     1
                                                                                                    ‘;
                                             “(8)   The       able   attorneys   for respondent*
                                       insist  that to hold that the Leglaldture oould              :.
                                       not repeal the law so as to tsrmlnate   this end             ;;
                                                                                                     ,
 .”               .i
                                       llmllar oontreotawould be egalnat pub110 pol,l-
             ,!
                                       oy
                                       - _.an+ ~~aaatrouato th! pub110 good.    The atata,         ~/;
       ._.’
                                       like ~ndlrld~ala,  lapeolally when ontoring into
      .c’.
                                       private oontraota,mu~atfirst roll oonalder
                                       Fhet aontraota it will,enter into or authorize,
                                      ‘with the view of having tham parf~rmed aooord-
       *                                                             t
  .I        .




       .        Hon. Ceo. B. Sheppard,      YobruarF   18, 1939, Page 4


                                          terma.   when the Stats beOOm8
                          a party    to a oontraot with a oltlzen, tha Sam
                          law   applies to it as underllka oondltlon governs
                          the   oontreota of lndIvIduala.    Anderson v. Robl-
                          son   (Tex. Sup.) t29 8. W. 489, t3S S. U. eS3,
                          and   oases thorn olted,
                                  *The writ      of .mndamua is grehted.*
                                  In Fort Worth Oavelry Club V. 8hoppard, 83
                                                                 l

                     8. 1. (2d)    460c Supreme Court, a mandamus wee sought to
                     oompal the    lasuanoe of a state warrant for the payment
                     of *oartl?laateaissued ln llau of defioienoywarranta.”             my
                     The Adjutant Oonoral had purported to ieaae an anory for
                     flva years at #285.00 par month. The appropriation     for
                     the Adjutant (#anoral’s Department had been Wt.&d.
                     The question  raall    Involved was whather the rental oon-
                     traot wee talla.    4 he Buproma Court held that it was not,
                     in the oeurae    of   the   opinion sayings
                                                       .
                                 “A oareful  reading of the above quoted
                          statutes   olearly demonstrates that none of them
  t                       oontaina any expreae lenguage authorizing      the Adjutant    .
                          Qanoral to rent or laese armories for the National
                          Guard ?or a period o? flro yaara,      or, for that
                          matter, for any porlod. When wa oome to oonatrue
                          luo ha tetutea,    together with the above quoted
                          appropriationaot, it la reasonably olear to us
                          that the Adjutant Ganeral h&d the implied power,
                          wlthln the reasonable llmltatIona      o? such eppro-
                          prlatlon,   to make uontraota for the period and
                                                       anb no further.    This
                                                      raot lllegal.W
                               The letter   from the State Tax Commlasloner to
                   Mr. Nalle, dated September 1, 1937, an4 the reply thereto,
                   dated September 4th of the same year, would be au?flolent
                   In themzelreato oonatltute      a renewal of the then expiring
                   lease on the fourth floor of the Nelle Building at $200.00
                   per month for the biennium.      rurthermore, the other lnstru-
                   ments end oorroapondenoo mentioned above b&eaa the Stats
                   Tax Board end %he Board of Control and between the Board
                   o? Control and Mr. Nelle would be sufilolent     to oonatltuta
                   a oontragt,  provided the Board of Control had the’rlght      to
                   make the oontreot.     Thus whether the right of oontraot ra-
                   aided with the Board of Control or the Btete Tax Board is
                   e quastlon whloh ln ltael?    la not neoesaary ?or us to de-
                   termine alnoe’the above mentioned papers show that both
~3’;,. .~          euthorltieamade auoh a oontraot.
.&~~.::>
      a:,:
7;~
..**;~~
    i><:*,a                             Tha oontraot that was made did not lxO8ed tha
     Ta.,;.,‘~
c,~?*~<
“:.:.‘.a~   ~,
       i”;,i r:         anount
                         ;~,      approprlatod     nor did it attempt t&go bsyond the
f*$+’ ‘i.vy;;;*‘,.,i,
                  ;:.:: ~, ;,r~w-/^:G
                   _.*...~      ,%<,
                                   ,1‘;. ~_   : j_,....
                                                     in. ,_ .,.,. .~
                  Eon. Gao. H. Sheppard, February 15, 1939, Page 6


           ,.fl   biennium for whloh the appropriation was mede. We think
     ,/”          the right to meke the lease agreement lnoluded the right
:’                to mike the moat advantageouskind of agreement that
                  oould be made so long a6 the State Tax Board aonflned
                  ltsel? to the appropriation. It oould hardly be expected
                  that a reelly advantageous oontraot oould be made whloh
                  did not axtend to rome definite period of tlms.
                            Our answer to your aeoond question la in the
                  airiraative.
                             We understandthat you do not now desire an
                  answer to your flr8t and third questions in view of the
                  above anner   to   pour aeoond one.
                                                        Yours   very   truly

                                                 ATTORNNY
                                                        -&IL              OF TEXAS



                                                 By     (Slrnsd)
                                                              Glenn R. Lewis
                                                                   Asslatant
                  BEL:M
                  APPRovm: .
                  (Send.)   Gerald C. yIann
                            ATTORNEY GENERALOF TEXAS
