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                      January 3, 1958

Colonel 0. B. Ellis                Opinion No. W-336
Director, Texas Department
  of Corrections                   Re:   Authority of the Texas
Huntsville, Texas                        Department of Correc-
                                         tions to pay the Hunts-
                                         ville and Madisonville
                                         Fire Departments for
                                         services performed in
                                         extinguishing a fire
Dear Colonel Ellis:                      on prison property.
          Your request for an opinion states that:
          "On October 28, 1957, we had a fire at Fer-
      guson Farm 9 . . resulting in a loss of approxi-
      mately $50,000. The volunteer fire departments of
      the ci,tyof Huntsville and the city of Madisonville
      came to our rescue. Without their aid, we would
      have lost another $25,000 buildfng. Unfortunately,
      during the fire at Ferguson, a residence burned in
      Huntsville. In all probability, the residence would
      have been saved had the fire department been at home."
          Your supplemental I,etterfurther specifies that:
          "The fire departments of Huntsville and Madi-
      sonvilie were called. The statement gl.ven.tothem
      was to the effect that the main building was on
      fire; that our equulpmentwas Inadequate; and that
      unless we had some help we would lose everything.
      There was no mention made of a fee, but the fact
      that we urged them to go to an area outside their
      jurisdiction, in my opinion, constitutes an im-
      plied obligation."
          The question you ask is whether 'theTexas Depart-
ment of Corrections may pay a bill for the reasonable value
of the services rendered 'bythe Fire Departments of the City
of Huntsville and the City of Madisonville.
Colonel 0. B. Ellis, page 2   (~~-3361


          Section 44, Article III of the Constitutionof Texas
provides in part as follows2
          "The Legislature . , . shall not grant extra
      compensation to any . . . public contractors, after
      such public service shall have been performed or
      contract entered into, for the performance of the
      same; nor grant, by appropriation or otherwise, any
      amount of money out of the Treasury of the State,
      to any individual, on a claim, real or pretended,
      when the same shall not have been provided for by
      pre-existing law; . D .'
          The courts have uniformly adhered to a rule of
strict construction of this portion of the Constitution, and
have held that "no one has authority to make a contract binding
on the State, except where he is authorized so to do by the Con-
stitution or a pre-existing statute." State v. Ragland Clinic-
Hospital, 159 S.W,2d 105 (S.Ct.). In that case, a Texas Liquor
Control Board agent shot a person during a raid and took him
to the hospital for treatment, stating that the Liquor Board
would pay the bill. In holding that the State was not bound
by the contract, the Supreme Court quoted and discussed the
provisions of the Constitution above mentioned, and held that
the terms of the Liquor Control Act could not be expanded by
implication, and that the doctrine of apparent authority could
not be employed to expand the authority of the agents of the
State.
          In State v. Steck Company, 236 S.W.2d 866, writ ref.,
the second of a series of contracts for the printing of stamps
was not executed in accordance with the requirements of the
statute. The stamps were delivered to and used by the State.
Payment was declined, and this suit was brought for the value
of the stamps. The Court held that the fact that the State used
the plaintiff's property did not authorize payment therefor in
the absence of a binding contract. The Court said:
          "If appellee had refused to make delivery of
      the stamps under the contract, the State could not
      have compelled the performance. . . . a legal
      obligation against the State was not created by
      the unauthorized contract, and appellee's c;aim
      was not provided for by 'pre-existing law'.
Colonel 0. B. Ellis,   page   3   (w-336)


          From these and many other authorities, we believe
that it is an inescapable conclusion that the State cannot be
bound by an implied contract. Therefore, it is our opinion
that the Texas Department of Corrections is not authorized to
pay the Huntsville and Madisonville Fire Departments for
services performed in extinguishing a fire on prison property,

                              SUMMARY

            The Texas Department of Corrections is
            not authorized to pay the Huntsville and
            Madisonville Fire Departments for services
            performed in extinguishing a fire on prison
            property, in the absence of pre-existing
            law authorizing contracts for such services.
                                    Yours very truly,
                                    WILL WILSON
                                    Attorney General of Texas




RRR:jl:zt                               Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
J. C. Davis, Jr.
W. V. Geppert
Leonard Passmore
REVIEWED FOR THE ATTORNEY GENERAL
BY: James N. Ludlum
