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Honorable J. R. Singleton                Opinion No. M-747
Executive Director
Texas Parks and Wildlife Department      Rer   Status of a contract for
John H. Reagan Eulldlng                        the construction of a
Austin, Texas 78701                            fish pass between Corpus
                                               Chrlsti Bay and the Gulf
                                               of Mexico, adjacent to
                                               Mustang Island, and re-
Dear Mr. Singleton8                            lated questions.
          Your request for an opinion on the above subject matter
asks the following questions:
          "1. Does a valid, binding contract exist
     between Brown and Root, Inc. and the State of
     Texas for the work described In the document
     dated August 28, 1970, and styled 'State Build-
     ing Commission Contract Award' (made on behalf
     of the State of Texas), in the amount of
     $1,300,245 for project No. O-069-802?
          “2. Have monies appropriated in Item 23,
     House Bill 2, 61st Legislature, Second Called
     Session, to the Parks and Wildlife Department
     for the fiscal year ending August 31, 1970,
     been obligated?
          "3. Are the balances remaining In Item 23
     for fiscal years ending August 31, 1970, and
     August 31, 1971, avallabla for expenditure for
     the purpose appropriated?
         You have enclosed with your request the following documents!
          1; A copy of the agreement of acceptance dated 29 April,
1970, which was executed following Parks and Wildlife Commission
approval on April 28, 1970, of the budgeting of funds for construc-
tion of the pass and approaches.



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Hon. J. R. Singleton, page 2      (M-747)


          2. A portion of the minutes of the Parks and Wildllfe
Commission meeting Indicating approval of the Commissfon of this
project.

          3. The minutes of the State Building Commission meeting
of May 6 approving selection of Turner, Collie and Braden, Inc.
as consulting engineers.
          4. The engineering agreement between the State Building
Commission and Turner, Collie, and Braden, Inc. for their services
on behalf of the State of Texas.

            5. Copies of letters on behalf of the State of Texas to
           ,.
various firms indicating a need for some specific engineering data
and inviting  them to submit a proposal.
          6. A letter on behalf of the State of Texas addressed
to Frank Bryant and Associates Indicating acceptance of their
proposal for the soil tests.

          7. A copy of a letter addressed to this office by the
State Building Commission suggesting that funds for the fiscal
year ending August 31, 1971 be made available in order that the
works contracted for can be better handled.
          8. A supplemental agreement of acceptance ltidicatlng
that the second year funds for the proJect would be available.

          9. A copy of a letter from the State Building Commission
to Turner, Col,lle,and Braden, Inc. proposing an amendment to the
existing contract for engineering services.
          10. A copy of a Public Notice published on behalf of the
State of Texas calling for bids to be submitted no later than 2 P.M.,
August 27, 1970 for construction of the project.
                 The Contract Award referred to In Question 1 above
dated ~uguii’28,   1970 committing $1,300,245 for the items speclflkd
to Brown and Root, Inc. This Contract Award carried the Comptroller's
certiflcatlon that appropriations are available for the contract
described above.
          12. A copy of a letter from Brown and Root, Inc. indlcat-
lng their willingness to hold the bids firm until November 24, 1970
pending definitive award of the job.


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Hon. J. R. Singleton, pages3          (M-747)




            13.    A copy of the Comptroller's Journal Voucher ln-
dicating that the $1,300,245 previously set aside for payment
to Brown and Root, Inc. upon successful completion of their con-
tract and $1,500,000 of the 1970-71 funds plus the unexpended bal-
ance of $73,725.62      from the 1969-70 appropriations are placed
in suspense.
          You further state that the following expenditures and
encumbrances of funds appropriated for thls purpose for the fiscal
year ending Au$;;t 31, 1970 have be? made:
                                          VOUCHER NO.         AMOUNT
     "Turner) Cxlle and Braden               6159 01
     Frank Bryant and Associates             8 g6kl    $    12$z-?:
     The Houston Post                       ,8 2 25-12          ' 2$@&
     Caller-Times Publishing Company
     Turner, Collie ,and Braden              88$fz:         $;'3'8:;~
     Turner, Collie and Braden                 202-01
     Frank B-zyantand Associates               482-01         2:140:00
        TOTAL
        Encumbered to Brown and Root                     1,300:2$5:00
        Expended or encumbered                         L:::x
        BALANCE REMAINING                                 ' 73:725:62”
          Item 23 of the appropriation to the Parks and Wildlife Depart
ment, contained in House Bill 2, Acts 61st Leg. 1969, 2nd C.S. reads
as follows:
                           'For the Years Ending
                    August 31, 1970    August 31,1971
     “23.  For preparation of detailed plans and specifi-
     cations, and all other necessary costs in connection
     with first phase construction of a water exchange
     pass (and bridge) between Corpus Christ1 Bay and the
     Gulf of Mexico adjacent to Mustang Island according
     to preliminary,engineerlng plans. *.,,............t,
                   $1,,500,000                  $1,500,000”

          In construing~the above quoted provisions, we held In
Attorney General's Opinion M-57&,( 1970):
          "You are therefore advised in answer to your
     second and third questions that If the Parks and
     Wildlife Department Intends to,malntaln the 'water
     exchange pass' as a fish pass, such funds may be

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Hon. J. R. Singleton, page 4      (M-747)


     expended from the Special Game and Fish Fund No.
     9; . . ."
          In Attorney General's Opinion M-721 (1970), with regard
to the construction of the fish pass in question, we expressed the
opinion that the Parks and Wildlife Department may contract for the
construction of the bridge and approaches with an Independent con-
tractor . We further concluded that the State Building Commission
could not contract for such construction.
          Prior to the release of Opinion No. M-721, dated November
5, 1970, the State Dulldlng Commission on August 28, 1970, made an
award In writing to Brown and Root, Inc., for such construction in
the amount of ,$1,300,245.00. Said award was made to the lowest and
best bidder of bids submitted pursuant to advertisement for bids and
subsequent to the allotment of funds appropriated by the Legislature
in Item 23 for such purpose, said allotments being made by the State
Building Commission and the Parks and Wildlife Department on the 29th
day of April, ‘1970. ~No formal contract however has been signed by
Brown and Root; Inc., and agents of the State of Texas.
          All acts by the State Building Commission have been ap-
proved by the Parks and Wildlife Department in connection with the
awarding of this contract. Therefore, while the State Building
Commission for reasons stated in Attorney General's Opinion M-721
(1970) did not have the constitutional power and authority to act
for the State of Texas, it is nevertheless our opinion that such
acts are binding on the Parks and Wildlife Department, an agency of
the State of Texas, authorized to bind the State.
          It is fundamental that all contracts spring from an
'offer" and "acceptance." 13 Tex.Jur.2d 130, Contracts, §15.
          Since the bid of Brown and Root, Inc. (offer) was accepted
by the State Building Commission and the Parks and Wildlife Depart-
ment (award of the State Building Commission accepted and approved
by the Parks and Wildlife Department), it is our opinion in answer
to your first question that such action constitutes a valid and
binding contract between Brown and Root, Inc. and the State of Texas
for the work described in the document dated August 28?,1970, de-
signated as "State Building Commission Contract Award, In the amount
of $1,300,245.00 for Project No. O-069-802, and the Parks and Wildlife
Department is required to execute the contract in accordance with the
bid of Brown and Root, Inc. and the award made by the State Building
Commission and the Parks and Wildlife Department.



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 ,    .




Hon. J. R. Singleton, page '5      (M-747)



          In answer to your second question, you are further ad-
vised that monies appropriated in Item 23 under the facts submitted
have been obligated in the amount of 1,426,274.38, leaving an un-
expended and unencumbered balance of $73,725,62. Since the Legisla-
ture did not appropriate the unexpended balance, you are advised
that the balance remaining ln~the appropriation for the fiscal year
ending August 31, 1970, has lapsed.
          In answer to your third question, you are advised that
monies appropriated in Item 23 for the fiscal year ending August
31, 1971, are available for expenditures for the purpose appropriated
                     SUMMARY
          An award by the State Building Commission
     approved by the Parks and Wildlife Department
     legally encumbered monies appropriated to the
     Parks and Wildlife Department for the construction
     of a fish pass. Balances remaining in funds ap-
     propriated for the fiscal year ending August 31,
     1970, which have not been expended or encumbered
     lapsed for the reason that such balances were not
     reappropriated for the fiscal year ending August
     31, 1971. Monies appropriated for the fiscal
     year ending August 31, 1971, are available for
     expenditure for the purpose appropriated.
                              Ve




Prepared by John Reeves
Assistant Attorney (feneral
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
J. C. Davis
Arthur Sandlin
Houghton EQ-ownlee
Max Flushe

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Hon. J. R. Singleton, page 6      (M-747)


MEADE F. CtRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLAWRITE
First Assistant




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