                              ORNEY          GENE-L
                             OFTEXAS




Hon. Paul L. Bognton,  President
Stephen F. Austin State Teachers         College
Nacogdoches, Texas

Dear Sir:                       Opinion No. O-7352
                                Re:   Authority    to expend a specific
                                      appropriation    for the construc-
                                      tion of a permanent improvement
                                      when the sum appropriated      is in-
                                      adequate.

           We acknowledge    your letter   of August 10, 1946, where-
in you request    an opinion   of this department     on matters therein
discussed,   which reads,    in substance,   as follows:

            The 49th Legislature        appropriated     to the Stephen
    F. Austin State Teachers College             for the year ending
    August 31, 1946, $24,000.00           for “steam tunnels      and
    steam pipes for main buildings.”               On three occasions,
    bids were requested        and in each instance        the same had
    to be rejected       because the bids were in excess          of the
    amount appropriated       . ComDaniea are not willing         to
    bid more closely       within    the range of costs      because of
    the uncertalntg       of material     and labor costs.       That the
    college    might realize      the sum appropriated,       we, desire
    to know whether we can let a contract,              a cost-plus
    contract,     with the stipulation        or agreement with the
    bidder    that the total      work done would not exceed
      $24,000.00,     and bidder would agree to complete            the
    unit in Its entirety        when moneys are mad,e available.
    The college      could get most of the work done on this
    basis,    and a contract      would be let in such a way that
    the bidder-company        would agree to complete        the unit
    upon which it shall work to its entirety.

          Under the facts       stated,     it is revealed   that the appro-
priation   of $24,000.00     for steam tunnels       and steam
main buildings     of the college       (Item 78, Acts 1945, $%Y~~f;sla-
ture, Regular Session,       Chapter 377, page 796) Is inadequate         to
meet the present     day costs     of materials    and labor for the con-
struction   and installation       of the steam system.       The basic
question   involved   here is, we believe,,       whether the college
has authority     to expend an appropriation        made for the construc-
tion or installation      of the steam system contemplated         by the
                                                                   .   ,




Hon.   Paul L. Boynton,      page   2            O-7352


Legislature,     when the    sum appropriated       is   in fact       inadequate.

           It Is elemental,    of course,    that all power to approprl-
ate money for public     purposes   or to incur any debt therefor,
unless  given by the Constitution       to some other ind,ividual         or
body politic,    rests  In the Legislature.       Sec. 6 of Art. VIII of
the Texas Constitution,     provides    that “no money shall be drawn
from~ the Treasury but In pursuance        of specific     appropriations
made by flaw .‘I This provision     requires    speclficness     as to pur-
pose as well ,as to amount.

            The type, of appropriation     which we are herein discussing
Is a specific    appropriation     for a purpose which the Legislature
contemplated    might be accomplished      within the sum appropriated
therefor.     In other words, we believe        that the Legislature      in
appropriating     Item 78 could have and did contemplate         the full
complet%on of the construction         or installation     of a steam
tunnel and pipe system for the main buildings            of the college,
and provided    by Its appropriation      that the cost of the complete
system should not exceed       $24,000.00       The Legislature    specified
by its appropriation      to the college     the purpose for which it.
should be expended and the specific          amount to be expended for
the steam system In question.

            It is well known that it Is the custom with the Legls-
lature    to appoint     committees      or boards to investigate       the needs
of public     Institutions       and to pass appropriation       bills   for
definite    amounts for the support,          maintenance     and erection       of
bulldlngs    Andy other permanent Improvements therefor.                Articles
688, 689, 68qa-2,        689a-7,    V.A.C.S.;    State v. Hardeman, 163 S.W.
1020.     We do not think the passage of the appropriation                 bill,
above referred       to    wherein the specific       amount of $24,000 was
appropriated      for ‘steam tunnels        and steam pipes for maln build-
ings” for the College,           the Legislature     intended   to grant the
trustees    thereof     discretion     to incur liabilities       on the part of
the State for more than this amount.

            All public    offices    and officers      are creatures     of the
law.    The powers and duties        of public    officers     are defined     and
limited    by law.    22 Ruling Case Law, page 555. Public               officers
may make only such contract          with the government they represent
as they are authorized         by law to make.       Fort Worth Cavalry Club
vs. Sheppard,     125 Texas, 339.        In our   opinion.,,   the approprlatlon
law authorized     In effect      the proper officials        of the College      to
make a contract     blnding upon the State for the erection,                con-
struction    or installation       of the steam system in question            and
fixing    the amount to be spent therefor,           by impllcatlon,      declared
that the cost of the steam tunnels            and steam plpes for main
buildings    should in no case exceed $24,000.               This was a llmita-
tion on the authority        of the agents~representing           the State,     and
any efforts     on their    part that would attempt to impose upon the
Hon.     Paul L. Boynton,      page 3                O-7352


State a contract     that would Increase   its liability   beyond the
amount stipulated     In the appropriation    would be clearly   un-
authorlzed,   and would be an act not binding       on the government.
Nichols   vs. State,    32 S.W. 452; State v. Halderman, 163 S.W.
1020.

            Considering     the facts     herein quoted,   wherein It Is
apparent that the College          cannot contract     for the construction
or installation      of a completed       steam system as contemplated      in
the quoted appropriation         bill   at a cost of $24,000.00,      or less,
we are of the opinion        that the College      cannot let a contract
stipulating     with the bidder       that the total    work done would not
exceed $24,000 and wherein the bidder would agree to complete
the unit in its entirety         when moneys are made available,        for
the reasons     hereinabove     stated.

             Trusting    the   above    satisfactorily      answers   your   in-
quiry,     we~remain

                                          Very    truly   yours,

                                       ATTORNEYGENERALOF TEXAS


                                          By s/Chester    E. Ollison,
                                                Chester E. Ollison
                                                Assistant

CEO:rt:wc


APPROVEDAUG 19, 1946
s/Ocle   Speer
(Acting)   ATTORNEYGENERALOF TEXAS

Approved     Opinion    Committee      By s/BWB Chairman
