Dr. George J. Beto                      Opinion No. M-999
Director
Department of Corrections               Re: Purchase of airplane by
Huntsville, Texas                           the Department of Cor-
                                            rections.
Dear Dr. Beto:

      Your request for an opinion reads as follows:

           "Some two months ago the Department of Cor-
      rections lost its plane. The Board of Corrections
      authorized its immediate replacement under the au-
      thority found in Senate Bill 11, Page 111-48, Para-
      graph 22, and Section 18 of Article V, Acts of the
      62nd Legislature, Regular Session, 1971. The Board
      had previously purchased an airplane under identical
      language found in prior appropriation bills.

           "We would point out that this plane is used for
      the return of prisoners from other states to the De-
      partment of Corrections.  Under the law, the Depart-
      ment of Corrections is required to return parolees and
      prisoners to this State in the event they owe Texas
      time. Our log reveals that 75% of the plane's usage
      is involved in the return of prisoners; 25% of the
      time is spent in travel for departmental executives.

           "The above-mentioned plane was purchased in ac-
      cordance with the law and when the claim was pre-
      sented to the Comptroller of Public Accounts for ap-
      proval and payment, he refused to pay the same. It




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Dr. George J. Beto. page 2       (M-999)




     is our position that Section 22 of Article III and
     Section 18 of Article V of S.B. 11, appropriations for
     the Department of Corrections, Clearly authorizes
     our department to purchase this plane. Not only do
     we believe this expenditure is legal but the owner-
     ship of a plane by the Department of Corrections
     effects a great savings of the taxpayers money of
     this State.

          "Does the Texas Department of Corrections,
     under the legislation referred to above, have the
     authority to purchase and pay for an airplane?"

     Subdivison (a) of Section 18 of Article V of Senate Bill 11,
Acts 62nd Legislature, R.S. 1971, as amended by Senate Bill 7,
Acts 62nd Legislature, 1st C.S. 1971, provides:

          "None of the moneys appropriated in this Act
    may be expended for the purchase, maintenance or
    operation of a passenger car or of airplanes de-
    signed for passenger transportation unless authority
    to do so is stated by the language of this Act.
    Where such authority is stated, the purchase of
    an airplane, or the repair of an airplane, the cost
    of which is in excess of five thousand dollars
     ~$5.000) , in any one fiscal year shall have the
    prior written approval of the Governor, and notice
    of such approval shall be filed with the Legislative
    Budget Board."    (At p. V-43)

     Item 22 of the appropriation to the Department of Corrections
contained in the above cited General Appropriation Act provides:




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.     .




    Dr. George J. Beto.           page   3     (M-999)


                                                        "For the Years Ending
                                                      August 31,         August 31,
                                                        1972               1973

          "22.        Consumable supplies and
                      materials: current and re-
                      curring operating expense,
                      including rewards; inquests:
                      uniforms: medical expense of
                      employees injured in line of
                      duty: reimbursement of re-
                      volving funds; maintenance and
                      operation of one airplane:
                      capital outlay, including pass-
                      enger cars: and contingencies
                                                           $7,755,340"   (At p-111-48)

         Section 18 of Article V of the current General Appropriation
    Act above quoted is substantially identical, insofar as the same
    relates to your question, as Sections 20 and 21 of Article V of
    House Bill 12, Acts 59th Leg., R.S. 1965. Likewise Item 22
    above quoted is substantially identical to Item 12 of the appropria-
    tion to the Parks and Wildlife Department contained in the 1965
    Appropriation Act.  In construing the provisions of the 1965
    Appropriation Act above cited, it was held in Attorney General's
    Opinion C-559 (1965):

                 II
                      Funds may be expended from paragraph
                      .   .   .


          12, Article 111-108, House Bill No. 12, Acts 59th
          Legislature, 1965, for the purchase, maintenance
          and operation of the airplane."

         The language construed in Attorney General's Opinion C-559
    (1965) is substantially identical to the language contained in
    the current General Appropriation Act applicable to the Depart-
    ment of Corrections.  Our opinion is that under the facts
    submitted the Department of Corrections has the authority to
    purchase and pay for an airplane. The approval of the Governor
    is required if the purchase price is in excess of $5,000.00.




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Dr. George J. Beto, page 4           (M-999)



                    :



                           SUMMARY

               Funds may be expended from Item 22 of
          the appropriation to the Department of Cor-
          rections contained in the current General
          Appropriation Act for the purchase, maintenance
          and operation of an airplane by the Department
          of Corrections; provided that if the purchase
          price is in excess of $5,000.00 the written
          approval of the Governor is required.

                                     Ve&ruly   yours,




Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
J. C. Davis
James McCoy
Marietta Payne
Jack Goodman

SAM MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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