              EA                 NE    GENERAL




                    December 6, 1965

Honorable Robert S. Calvert                Opinion No. C-559
Comptroller of Public Accounts
Austin, Texas,,78711                       Re:   Whether a 1965 Model
                                                 Twin Cessna Aircraft
                                                 310-J may'be paid for
                                                 out of funds appropri-
                                                 ated to the Texas
                                                 sparksand Wildlife
                                                 Commission under
                                                 House Bill No, 12     ~
                                                 Acts 59th Legislaiure,
Dear Mr. Calvert:                                1965.
            Your request   for   an opinion asks the following
question:
         Hay a 1965 Model Twin Cessna Aircraft
    310-J be paid for out of funds appropriated
    to the Texas sparksand Wildlife Commission
    under House Bill No. 12, Acts 59th Legislature,
    lg65?
          Article V Section 21a of House Bill No. 12, Acts
of the 59th Leglslagure, provides as follows:
         "Sec. 21. PASSENGER VEHICLES. a. None
    of the moneys appropriated in this Act may be
    expended for the purchase of a passenger car
    or of airplanes designed for passenger trans-
    portation unless authority to do so Is stated
    by the language of this Act. Moreover, none
    of the moneys appropriated in this Act may be
    expended for the maintenance or operation of
    any State-owned passenger car or airplane de-
    signed for passenger transportation unless
    the authority to do so is stated by the language
    of this Act."
          Section.20 of Article V of House Bill No. 12 is also
pertinent to the purchase of an airplane. It provides:




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Hon. Robert S. Calvert, page 2 (c-559)


           "Sec. 20. AIRPLANES. None o,f the moneys
     appropriated by this Act may be expended'for the
     purchase of'an airplane, or for the repair,of  an
     airplane costlng~in excess of Pive Thousand Dollars
     ($5jooo),  without the prior written ~approvalof
     the Governor after obtaining the a~dviceof the
     Legislative Budget Board.
          "None of the funds appropriated in this,Adt
     may be expended by a state agency for operation
     or maintenance of a state-owned airplane unlbss
     the agency files.a reportwith the Legislative
     Budget Board showing the names of places-to which
     flights were made, the name of the'pllot, and the
     name or names Of any passengers on each such flight,
     and the offlcia-lbusiness purposes of each such
     flight. Such report shall be certified as to
     accuracy by the executive head of the agency and
     shall be filed by no later than October 1 for the
     preceding fiscal year."
          In accordance with Section 20 of Article V, the prior
written approval for the purchase of a Cessna 310 class air-
craft for the Parke and Wildlife Department was ~secured from
Qovernor John Connally with the express notation:
          $9   .I am today:approving; upon the advice
     of the'ldglslative Budget Board the purchase
     of a twin-engine plane equal to'or In the
     Cessna 310 class through the State Board of
     Control from current funds . . ."
                .that the plane will be used to
     further the Parks and Wildlife Programs of the
     Department and the plane will,not be used as
     a passenger plane except on official state
     business as approved by the Commission or the
     Executive Director as to its assignment  and
     location."
          Although, Section 20 above quoted is couched in
negative language' it necessarfly implies thit the moneys
appropriated by this Act may be expended for the purchase of
an airplane and for the repair of an airplane costing in
excess of Five Thousand Dollars ($5,000) with the prior written
approval of the Governor after obtaining the advzce of the
Legislative Budget Board.



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Hon. Robert S. Calvert, pag e 3 (C-559)


           The question arises, whether Section 21 of Article
V Is applicable. In order to -determlne'this the phrase
 "airplanes designed for passenger transporation" must be
analyzed. In a prior opinionof this office the above phrase
was construed'as meaning, ". . .reasonably adapted, structurally,
for carrying passengers. . . .', Letter Opinion No. MS-107
l;l.z3).  This office specifically overrules this prior construc-

          "Designed" Is defined by Webster's New World Dictionary
of the American Language as follows:
          "designed,'adj. gp. of deslg_nT,formed or
     done according to design; planned; purposed;
     intended."
          "Designed" ,ls de'flnedin the fourth edition of
Black's Law Dictionary as follows:
               .taken to be employed for a particular
     r2ruiis   suppl;i;;nded, adapted or designated."

          It is the opinion of this office that the word
"designed" as used in Section 21 of Article V, House Bill No.
12, Acts of the 59th Legislature, is synonymous with the words
"purposed" and "intended." -'Therefore the phrase may be
interpreted to.read 'I..
                       . .airplanes 'Intended' for passenger
transportation. . .'I.
          It is the intent or purpose of the Department pur,-
chasing an airplane which determines whether or not Section 21
of Article V is applicable. not the structural design of the
airplane. This construction is supported by Williams v. State,
264 S.W.2d 711 cTex.Crlm. 1954) which- while construina the
phrase ". ',poiicy book- ,- 'designed or adaptable f& use
in connection with a policy game",' defined "designed" as
follows:
          I!
               .The terms 'designed' and 'adaptable,'
     are not defined in the statute. As there used,
     the term 'designed' means       other thipgs,
     'intended', 26 C.J.S. p. i2;Tng . .
          "It is apparent therefore, that by the use-
     of the term 'designed' an Intent on the part of
     the possessor of the p&cy   book and policy slip
     is written into the offense.


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                                                        .




Hon. Robert S. Calvert, page 4 (C-559)


         "It is, therefore, immaterial that the book
    here involved was, upon its face, nothing more
    or less than a common notebook and the slip merely
    a blank piece of paper. If the notebook and slip
    of paper were,possessed by appellant with,the intent
    to use them in playing the game of policy, the
    unlawful act condemned by the statute has been
    shown."
          Other jurisdictions have reached a slmiliar result:
Bruce v. Slbeck 78 P.2d 741 Cal. Dlst. Ct. of Appeals 1938
hearing denied 6y Supreme Ct.f; City of'Akron v. Stouffis 121
N.E.2d 307; 96 OA 105, Ohio Ct. of ~A‘1.
                                     pea a;
Darriagtonj 221 Mlch. 571, 191 N.W. f;
                                     31 (1923).
          Furthermore, it would be,an impractical and uneconom-
ical limitation on the various departments to require them to
purchase automobiles and airplanes which have been specially
constructed not to transport passengers.
          Consequently it Is the opinion of this office that
since the aircraft is intended to be used by the Parks and
Wildlife Commission in connection with its statutory duties
and responsibilities as they relate to the enfordement of
the'game and fish laws and carrying out the operations of Its
park servlces, the aircraft is not designed for passenger
transporatlon'within the meaning of Section 21 of Article V,
House Bill No. 12, Acts 59th Legislature, 1965.
          Paragraph 12, Article 111-108, House Bill No. 12,
Acts 59th Legisl,ature,1965, appropriates funds for the
enumerated purposes:
          "12   Consumable supplies and materials
     current and recurring operating expense (exciud-
     ing travel), malnten&k   and operation of
     passenger cars and aircraft, capital outlay
     including passenger cars." (Emphasis addend)
The Parks and Wildlife Commission may purchase an airplane as
part of its capital outlay and may then maintain and operate
it under the above provision.




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     .    .




Hon. Robert S. Calvert, page 5 (C-559)


                        SUMMARY
              Section 21 of Article V, House Bill No. 12,
         Acts 59th Legislature 1965 does not prohibit
         the purchase of a 1963 Model Twin Cessna Aircraft
         310-J where It is the intent of the Parks and
         Wildlife Commission to use it In the performance
         of Its duties and for official State business and
         not as a-passenger plane. Funds may be expended
         from paragraph 12, Article 111-108, House Bill
         No. 12, Acts 59th Legislature 1965, for the pur-
         chase, maintenance and operation of the airplane.
                              Very truly yours,
                              WAGGONER CARR
                              Attorney General



                              BY
                                    Wade Anderson
                                    Assistant

WA:ml
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. 0. Shultz
Bob Flowers
James Broadhurst
APPROVEU FOR THE ATTORNEX GENERAL
By: T. B. Wright




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