          EATTTOECNEY                      GENERAL
               ~FTEXAS


                                August   20. 1951



Hon. Robert S. Calvert
Comptroller   of Public Accounts
Austin, Texas                    Opinion            No. V-1243

                                          Re.: Legality   of paying for clas-
                                               sified advertising     from any
                                               appropriation    other than that
                                               specific  appropriation    to tht
                                               State Board of Control for
Dear    Sir:                                   “advertising    State’s business.”

               Your   request   for an opinion   reads   as follows:

            “In the departmental appropriation  bill under
       which we are now operating is found the foIlowing
                . .
       appropriation  for mamtenance   and miscellaneous
       operating expense for the State Board of Control:

             * ‘Bonds for employees.        fuel, water, lights,
       furniture,   fixtures, office equipment, photostat sup-
       plies, printing and binding, paper Andyoffice supplies,
       support and maintenance         of public buildings     and
       grounds, including extra help and supplies, testing
       of materials,    duplicating machine clupplits, equip-
       ment, telephone, telegraph,        postage, stationery, books,
       advertising    State’s business,      express    and drayage,
       travel expenses,      typewriter    parts and supplies, auto-
       motive equipment, elevator maintenance,              salaries,
       air conditioning maintenance,          uniforms,    photograph-
       ic equipment, receptionist        supplies and equipment,
       flags, contingencies,     and maintenance        of State Cemc-
       tery.’

            “There have been presented to me accounts for
       advertising State’s business  drawn against appropria-
       tions other than the one quoted iboue. For a specific
       example, see photostatic copy of the attached claim.
    Hon. Robert   S. Calvert,     Page    2 (V-1243)

f
        The appropriations    do not specifically         provide   for          ‘I
                                                                                      I

        the advertising  of State’s business.

             “Provisions  for the Board of Control to do
        such advertising  may be found in R,C.S., Articles
        610, 634, 643, 650, 666, and others as amended.

             “QUESTION:      Would the passing of accounts
        incurred to comply with above quoted statutory
        provisions   against appropriations   which do not con-
        tain a specific appropriation   for advertising  State’s
        business be in violation of general rider 15-b of the
        departmental    appropriation  bill which provides in
        part as follows:

              ” ‘The appropriations herein provided are to
        be construed as the maximum sums to be appro-
        priated to and for the several purposes named here-
        in, and the amounts are intended to cover, and shall
        cover the entire cost of the respective  items and the
        same shall not be supplemented    from any other
        sources.“-

             Article   666b,    V.C.S.,   reads,   in part,   as follows:

              “Section 1, Hereafter   all departments    and agen-:,
        ties of the State Government,     when ,rental space is
        needed for carr,ying on the essential    functions of such
        agencies or departments     of the State Government,     shall
        submit to the State Board’of    Control a request.there-
        for, giving the type> kind, and size of building needed,
        t,ogether with any other necessary    description,   and
        stating the purpose for which it will be used and the
        need therefor.

              “Sec. 2. The State Board of CQntrol, upon re-
        ceipt of such request, and if the money has been made
        available to pay the rental thereon, and.if; in the dis-
        cretion of the Board such space is needed, shall forth-,            ‘,
        with advertise  in a newspaper,    which has been regu-
        larly published and circulated    in the city, or town,
        where such rental space is sought, for bids on such
        rental space, for the uses indicated and for a period
        of not to exceed two years.    After such bids have been
Hon. Robert   S. Calve&    Page   3 (V-1243)



     received by the State Board of Control at its prin-
     cipal office in Austin, Texas, and publicly opened,
     the award for such rental contract will be made to
     the lowest and best bidder, and upon such other terms
     as may be agreed upon. The terms of the contract,
     together with the notice of the award of the State
     Board of Control will be submitted to the Attorney
     General of Texas, who will cause to be prepared
     and executed in accordance    with the terms of the;
     agreement,   such contract in quadruplicate; one cf
     which, will be kept by each party thereto, one by the
     State Board of Control, and one by the Attorney Gen-
     eral of Texas.   The parties to such contract will
     be the department or agency of the government
     using the space as lessee and the party renting
     the space as lessor.”

           The foregoing Article makes no provision for the pay-
ment of advertising     for bids on rental space.   It requires the
agency desiring the rental space to submit to the State Board
of Control a request to obtain       such space for it. If the Board,
in the exercise   of its discretion,   finds such space is needed by
the agency, it then becomes its duty to advertise for bids in a
newspaper which has been regularly published and circulated
in the city or town where such rental space is sought, unless
the request comes within one of the exceptions contained in
Section 4 of Article 666b.

          The appropriations    for the support and maintenance
of the executive and administrative     departments    and agencies
of the State for the current biennium are contained in the De-
partmental   Appropriation   Bill.  (H.B. 322, Acts 51st Leg., R.S.
1949, ch. 615, pp. 1208 et seq.)     The appropriations   to the State
Board of Control are found at pages 1232 through 1236.         Item
78 of these appropriations,    which has been quoted in your re-
quest, isfor   printing, contingencies,   “‘advertising State’s busi-
ness,” and other purposes.

          The photostatic copy of the claim attached to your
letter, as an example of such claims presented to you by other
agencies having appropriations   in House Bill 322, is for adver-
tising in a newspaper for bids on rental space, under the pro-
visions of Article 666b, for the Texas Liquor Control Board.
The claim was approved by that Board for payment out of Item
Hoii. Robert   S. Calvert,   Page 4 (V-1243)



50 of its current appropriation    for printing, contingent ex-
penses, and other purposes.       Neither ““advertising State’s
business”   nor cost of advertising   for rental space is spe-
cifically mentioned in Item 50.

           We have also examined       the appropriations    made to
each of the other departments,      boards, commissions,        and
other State agencies named in House Bill 322, and in all other
Departmental     Appropriations    Bills passed since 1941, which
have had an appropriation      for the payment of rental space and
have not found in any of them either a specific appropriation
for ‘“advertising State”s business”      or for the payment of the
cost of advertising.for    bids on rental space.     It appears that
Item 78 of the Appropriations      to the State Board of Control is
the only existing specific appropriation       for ‘“advertising State’s
business.”

          Since ArtiCle 666b does not specifically   provide for
the payment of advertising   for bids on rental space by the
Board of Control or by the department or agency for which
such space is sought, and no specific appropriation     having been
made to any such agency for the payment of such advertising,
it becomes necessary    for us to determine whether the Legis-
lature intended for the cost of advertising   for bids on rental
space to be paid by the Board out of its appropriation    for “ad-
vertising State’s business”   contained in Item 78 of its current
appropriations,

           We have examined the appropriations         made to the
State Board of Control in each of the respective        departmental
appropriations    bills, including the one for the biennium ending
August 31, 1921, which became available to the Board January
1, 1920, and the appropriations      for the biennium beginning
September    1, 1951, and have found in each of them a specific
appropriation   for “advertising    State’s business,‘”  except in the
appropriations    for the biennium ending August 31, 1921.        How-
ever, the Legislature     included therein an appropriation     of
$30,000   for the period beginning January 1, 1920, and ending
August 31, 1920, and a like amount for the fisc~al year ending
August 31’,’ I921, to be expended by the Board for such pur:~
poses as it ““may find necessary       to effectuate the purposes”   :
of the Act creating the Board.       One of the undoubted purposes
for which these appropriations      were made was to pay the cost
of advertising   in newspapers    for bids on contracts    for sup-
plies.
_I   -




         Hon. Robert   S. Calvert,   Page   5 (V-1243)



                   Consequently,    the State Board of Control has been
         from the time of~its creation, January 1, 1920, continuously
         charged with the duty of advertising       for bids on contracts for
         such supplies as it was required to purchase for the use of
         the State, its departments     and institutions,   except such sup-
         plies as it was authorized to purchase without the necessity
         of first advertising   for bids thereon, and has had at all times
         an appropriation    for “advertising   State’s business”    which
         clearly includes the payment of advertising         for bids on con-
         tracts for such supplies.


                    Therefore,   in view of the foregoing,   we have con-
         cluded that it was the intent and purpose of the Legislature
         that the expenses incurred for advertising       for bids on rental
         space sought by an agency of the State under the provisions
         of Article 666b. V.C.S.,    would be paid out of the appropria-
         tions to the State Board of Control for “advertising        State’s
         business,”    for such advertising undoubtedly comes within
         the meaning of that term as used in Item 78 of the Board’s
                     .
         appropriattons    for the current biennium.     If such had not
         been the legislative   intent of the Forty-eighth    Legislature
         which passed the Act from which this Article was codified,
         and all other Legislatures,     including the Fifty-second,     which
         have kbnvened since 1943, they undoubtedly would have made
         other specific provision for the payment of such advertis-
         ing.


                   You are therefore  advised that the only available
         appropriation  for the payment of advertising  in newspapers
         for bids on rental space required by Article 666b, V.C.S.,
         is contained in Item 78 of the appropriations  to the State
         Board of Control for the current biennium.    The payment
         inquired about cannot be made from other funds.



                                     SUMMARY


                   The appropriation   for “advertising State’s
              business”   contained in Item 78 of the appropria-
              tions to the State Board of Control for the current
Han,   Robert   S. Calvert,   Page   6 (V-1243)



       biennium is now the only available appropria-
       tion for the payment of advertising for bids on
       rental space required by Article 666b, V.C.S.,
       H.B. 322, Acts 51st Leg., R.S. 1949, ch. 615,
       p: 1235.

APPROVED:                                         Yours     very truly,

C. K. Richards                                     PRICE DANIEL
Trial & Appellate     Division                    Attorney General

                                                   * .~..           ;i s
Everett Hutchinson                                                      ,.d
Executive Assistant
                                                  BY
Charles D. Mathews                                      Bruce   W. Bryant
First Assistant                                                  Assistant


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