           THEATI-ORNEY             GENERAL
                    OFTEXAS

                      October 31, 1957

Hon. Robert S. Calvert
Corntroller of Public Accounts
Capftol Station
Austin, Texas
                      Opinion No. WW-292
                     Re:   Whether the Comptroller has the legal
                           authority to issue a warrant to re-
                           imburse the El Paso County Water Im-
                           provement DistrTct No. 1 for funds
                           expended in the prosecution of the
                           case of Texas . New Mexico in the ,,
                           United States &preme Court.
Dear Mr. Calvert:
          You have requested our opinion in answer to the fol-
lowing question:
          "Do I have ,authorityto issue my warrant to
     reimburse the El Paso County Water Improvement
     District No. 1 for funds expended in the prosecu-
     tion of the ease of Texas vs New Mexico, U. S.
     Supreme Court?*
          Your request attaches claim voucher in favor of El
Paso County Water Improvement District No, 1 of El Paso Texas,
coverin the period from October 25, 1951 to and including Bay
31 1955 The items contained in the claim voucher consist
mainly 03 telephone calls, travel expenses, and fees for profes-
sional engineering services allegedly payable out of funds appro-
priated by House Bill 546, Acts 53rd Leg., 1953, Ch. 220, p. 577;
House Bill 140, Acts 54th Leg., 1955 Ch. 519, p. 1518; and House
Bill 133, Acts 55th Leg., 1957, Ch. 385, p. 1071.
          House Bill 5k6, Acts 53rd Leg., 1953, Ch. 220, p. 577,
is in part as follows:
          "Section 1. There is hereby appropriated
     from moneys in the General Revenue not heretofore
     appropriated Thirty Thousand Dollars ($30,000) to
     the Governor to be disbursed by him to defray the
     expenses incurred in the prosecution of the suit
                                                                 .
                                                                 .   -




Hon. Robert S. Calvert, page 2   (W-W-292)


     by the State of Texas against the State of New
     Mexico for the enforcement of the Rio Grande
     Compact now pending in the Supreme Court of
     the United States.
          Wet. 2. None of the money hereby appro-
     priated is to be used for the payment of the fee
     of any attorney who may be employed to assist in
     this case.
          "Sec. 3. The fact that the money appropri-
     ated by this Act is needed immediately to defray
     the expenses of the suit by the State of Texas
     against the State of New Mexico to enforce the
     Rio Grande Compact creates an emergency. . . **
         House Bill 140, Acts 54th Leg., 1955, Ch. 519, p.
1518, is in,part as follows:
          "2. To defray the expenses incurred in the
     prosecution of the suit by the State of Texas
     against the State of New Mexico to enforce the
     Rio Grande Compact, such expenses not to include
     attorneys fees of attorneys employed in the case,
     there is hereby appropriated from moneys in the
     General Revenue Fund the sum of ......... $25,OOO.*
Since all of the items listed appear to have been expenses in-
curred prior to September 1, 1957, the effective date of House
Bill 133, Acts 55th Leg., 1957, none of these items is payable
from the appropriation contained therein and therefore this
appropriation may be disregarded.
          It affirmatively appears from the items contained in
the claim voucher for which reimbursement is claimed that a
number of the items were for expenses incurred prior to May 27,
1953, the effective date of House Bill 546, Acts 53rd Legisla-
ture, and therefore could not be paid from the appropriation
therein contained.
          Moreover, it appears from the face of the claim
voucher that the items of expenditure contained therein were
paid by El Paso County Water Improvement District No. l,pur-
portedly in behalf of the State of Texas to cover various items
of expense theoretically incurred on behalf of the State of
Texas by various parties as 'expenses incurred in the prosecu-
tion of a suit by the State of Texas against the State of New
Mexico to enforce the Rio Grande Compact.*
Hon. Robert S. Calvert, page 3      (w-292)


          Stated differently, the claim'against the State of
Texas is made by the El Paso County Water Improvement District
Nor 1 for the reimbursement of sums advanced by it in payment
of expenses i.ncurredby third parties.
          Section kk Article III,     Constitution of Texas, pro-
vides in part as follows:
          "The Legislature shall not . . . grant, by
     appropriation or otherwise, any amount of money
     out of the Treasury of the State, to any indi-
     vidual, on a claim, real or pretended, when the
     same shall,not have been provided for by pre-
     existing law; . . .II
          Section 49, Article III, Constitution of Texas, pro-'
vides in part:
          "No debts shall be created by or on behalf
     of the State, except to supply casual deficien-
     cies of revenue, repel invasion, suppress insur-
     rection, defend the State in war, or pav existinq
     g&&; . . ."
          Prior to the passage of House Bill 546, Acts 53rd Leg-
islature 1957 effective Bay 27, 1953 there ,was no pre-existing
law which would authorize the payment Af any claim for expenses,
$curred :L ;he prosecution of the suit of State of Texas v. State
   New Me c    other than by the Attorney General of Texas, and
therefore und& the provisions of both Sections 44 and 49 Article
III, Constitution of Texas, no debt could be incurred on behalf of
the State of Texas for the payment of obligations so incurred, nor
could the Legislature appropriate any money out of the State
Treasury to pay such claim.
          After the effective date of House Bill 546, Acts,53rd
Legislature, 1953, the Governor of the State of Texas was author-
ized to apprave the payment of any expenses incurred during the
period of two years from the effective date thereof for the pur-
pose therein contained to the individual by whom the expense was
incurred from the sum so appropriated. It appears from the filed
claim that the items of expense for the payment of which reim-
bursement is sought, were all incurred by individuals or parties
other than the claimant, and we have not found any constitutional
or statutory authority which would permit El Paso County Water
Improvement District No, 1 to bind or obligate the State of Texas
for the payment of a debt.incurred by another.
          In State v* Raaland Clinic-HosDital 138 Tex. 393, 159
S.W.2d 105, 106 (1942), after referring to Sedtions 44 and 49,
Hon. Robert S. Calvert, page 4   (W-292)



Article III, Constitution of Texas, the Supreme Court stated
the rule as follows:
           "Under these provisions it is well settled
      that no one has authority to make a contract
      binding on the State, except where he is au-
      thorized so to do by the Constitution or a pre-
      existing statute."
The same rule of law was again stated in State v. Steck Co.,
236 S.W.2d 866 (Civ.App. 1951, error ref.).
          Since there appears to be no constitutional or statu-
tory provision authorizing El Paso County Water Improvement
District No. 1 to incur any obligation or create any debt on
behalf of the State of Texas for the benefit of a third party
it is our opinion that you are without authority to issue any
warrant to reimburse the El Paso County Water Improvement Dis-
trict No. 1 for funds expended in the prosecution of the case
of State of Texas v. State of New Mexico in the United States
Supreme Court.
          This opinion shall not be construed as passing upon
the validity of any claim against the State of Texas made by
any individual, firm, or corporation for reimbursement for ex-
penses directly incurred in the prosecution of the suit by the
State of Texas against the State of New Mexico to enforce the
Rio Grande Compact by such individual, firm, or corporation.
                              SUMMARY
           The Comptroller of Public Accounts may not issue
      a voucher for reimbursement of El Paso County Water
      Improvement District No. 1 for sums advanced by it
      for the payment of expenses incurred by others in be-
      half of the State of Texas in the prosecution of the
      suit of State of Texas v. State of New Mexico in the
      Supreme Court of the United States.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney Gener/a\l
                                                  of Texas

                                 ,&W
                                    C. K. Richards
CKR:wb                              Assistant
Hon. Robert S. Calvert, page 5   W-292   1



APPROVED:
OPINION COMMITTEE
Gee, 'P.Blackburn, Chairman
J. C. Davis, Jr.
John Reeves
W. V. Geppert
Leonard Passmore
