             THERT~OR~~I~Y                           GENERAL
                        OF            TEXAS
                         AUSTIN.      TSSXAE         7871X




                                   November     7,   1974


The Honorable W. J. Estelle,   Jr.                      Opinion   No.   H-   444
Director
Texas Department  of Corrections                        Re: Disposition   of income
Huntsville, Texas 77340                                 generated by agricultural
                                                        operations   of Department
                                                        of Corrections.

Dear Mr.   Estelle:

         You have asked our opinion concerning the proper disposition
of prison revenues which accrue when “surplus agricultural   products”
are authorized to be sold by the Texas Board of Corrections  pursuant
to Article  6203c, Section 9(m) of the Prison-Made Goods Act of 1963.

        You call our attention to two riders in the current appropriations
act, (Acts 1973, 63rd Leg.,   ch. 659, p. 1786).   The first is specifically
attached to the appropriation  for the Department   of Corrections.   It provides:

                     It is the intention of the Legislature     that the sums
                appropriated    hereinabove     shall constitute the maximum
                amounts required to operate the Department            of Correc-
                tions . . . and that, except for the exchange of cotton-
                seed for cottonseed meal and cake and the exchange of
                cotton for textiles,    any other products or by-products
                of agriculture    or livestock   in excess of the quantities
                required for consumption,         shall be sold, or disposed
                of through inter-agency       contract,   and the revenues
                accruing shall be deposited in the General Revenue
                Fund. Notwithstanding       any other provisions     of this Act,
                none of the revenues so deposited are reappropriated
                except as they apply to the sales of equipment,          salvage,
                refunds and to recovered        damage claims. (Emphasis
                added) (Acts 1973, 63rd Leg.,         ch. 659, at p. 1949)


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The Honorable     W. J.   Estelle   page 2     (H -444)




         The other rider is found among the appropriation   act’s           “General          .
Provisions”   and relates to revenues accruing to state agencies             under the
Surplus and Salvage Act of 1957, Article   666, V. T. C. S.

                     SURPLUS PROPERTY.            Receipts to any agency
                 of the State Government      specified in this Act which
                 are received from the sale of surplus property,
                 equipment,   livestock,    commodities,    or salvage
                 pursuant to the provisions     of [the Surplus anisalvage
                 Act of 19571, are hereby appropriated       to such State
                 agency for expenditure during the fiscal year in
                 which such receipts are received.        Receipts from
                 such surplus and salvage sales are to be credited
                 to the appropriation    item from which like property,
                 equipment,   livestock,    or commodities    would be
                 purchased.     (Acts 1973, 63rd Leg.,     ch. 659, at
                 p. 2209).

        Your question is whether surplus agricultural     revenues should be
deposited in the General Revenue Fund, where they are unappropriated,
or whether Article   666, 5 4(e) requires that they be credited to the line-
item which originally    funded the surplus products.  If the latter is the
proper disposition you also ask whether surplus agricultural       revenues
are reappropriated    in the current biennium by the Surplus Property
rider,  cited above.

         In our opini.on, the first rider as attached specifically         to your
Department’s     appropriation,     controls over the Surplus Property rider.
The Legislature    has affirmatively      expressed    an intent to not appropriate
revenues accruing from a disposition          of surplus agricultural     products
by the Texas Department        of Corrections.      This intent is evidenced by the
first sentence of the rider,      providing that the funds appropriated        above
it are the maximum available,         and by the final sentence stating that
“[nlotwithstanding    any other provision of this Act”        the revenues arising
from a sale of surplus agricultural         and livestock, products or by-products
are not reappropriated      “except as they apply to sales or equipment,           salvage,
refunds and to recovered       damage claims. ” That your rider was intended
to be an exception to the Surplus Property appropriation            is also indicated
by the phrase identifying its subject-matter         as “products and by-products


                                           p* 2047
The Honorable    W. J. Estelle    page 3   (H-444)




of agriculture,  and livestock   . . . in excess of that quantity required
for consumption   . . . ” which is substantially    identical to the definition
of “surplus” agricultural    products given in $ 6 of the Surplus and Salvage
Act of 1957, Article 666, V. T. C. S.

        In addition, your rider also attempts to restrict the sale of
surplus agricultural  products to interagency contracts,  and to deposit
all income from these sales in the General Revenue Fund.

         Since your questions are principally     concerned with revenues
obtained when products are sold under Article 666, V. T. C. S., an
interagency    transaction,   there is no need to consider the constitutionality
of the rider’s interagency     contract limitation in any other context.
However,     we realize that Section 9(m) of the Prison Made Goods Act
gives the Texas Board of Corrections        the option of selling surplus
agricultural    products directly to the public, under appropriate     regula-
tions, or of proceeding     by means of the Surplus and Salvage Act.       The
vehicle chosen to accomplish       a sale does not affect the clearly expressed
intention that revenues derived from this type of property are not re-
appropriated.

         If the Texas Board of Corrections     chooses to dispose of the pro-
perty under the Surpl,us and Salvage Act, as it is authorized to do, we
believe that its Section 4(e), as a matter of general law, earmarks        the
revenue from a sale under that Act to the credit of the line-item       of the
disposing agency from which the property was originally         funded, and
dedicates the revenues to the agency for its future use, contingent upon
a present or future appropriation     of such funds by the Legislature.
Consequently,    to the extent your rider attempts to divert to the General
Revenue Fund revenues which are earmarked          for a special purpose by
general law it cannot be given effect.     Johnson v. Ferguson,     55 S. W.
2d 153, 157 (Tex. Civ. App.,     Austin 1932, writ dism’d).

         In the meantime,    eflbct must be given to the clear import of the
remaining portion of that rider which is that notwithstanding      any other
provision   of the current Appropriation    Act, including the Surplus
Property rider mentioned above, no revenues derived fromthe           sale of
surplus agricul,tural   products or livestock are reappropriated,     “except
as they apply to the sales of equipment,      salvage,  refunds and to recovered
damage claims. ”

                                        po 2048
The Honorable   W. J. Dstelle    page 4    (H-444)




                                SUMMARY

                     Sales of products of agriculture   or livestock in
                excess of that required by the Department for con-
                sumption may be made under Article        666, V. T. C. S.,
                the Surplus and Salvage Act of 1957.      Revenues
                therefrom    are earmarked for return to the appropriate
                line-item,   but are not reappropriated    in the current
                biennium,    except for revenue from sales of equipment,
                salvage,   refunds and recovered    damage claims.

                                                     Very   truly yours,




                                                    JOHN L. HILL
                                          c/        Attorney General       of Texas




DAVID M. KENDALL,        Chairman
Opinion Committee




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