Honorable Paul L. Boynton, President 

Stephen F. Austfn State Teachers College 

Ng!o@ioches, Texas 

Dear Sir: Opinion No. 0-6140 

Re: Construction of items for"Malntenance 

and Equipment" and "Improvements and 

Miscellaneous Repairs" as used In Apprbprlatlon Bill for,Stephen F. Austin 

State Teachers College. 

We acknowledge receipt of your opinion request reading 

as follows: 

"Senate Bill No. 333 acts of the Forty-eighth 

Legislature, and act flxlng appropriations for 

educational lnstitutlons of higher learning, etc., 

contains the follonlfig Items applicable to the 

Stephen F. Austin State Teachers College, Nacogdoches. 

"Line 72 'Mafntenance and Equipment $18,019’ 

for each year of the biennrum, and line 73 

'Improvements and Miscellaneous Repairs $2',5OQ' 

for each year of the biennium. 

"We shall appreciate your advice on the following: 

"1 . The college has contracted to repaint 

certain portions of Its classroom buildings. May 

vouchers for such painting be properly drawn against the approprtatlon for maintenance and equipment? 

"2 . May vouchers for such plastering of walls, 

together with subsequent repainting, be properly 

drawn against the appropriation for maintenance 

and equipment? 

"3 . May vouchers for sanding floors, together 

wlth subsequent refinishing, be properly drawn against the appropriation for maintenance and equlpment? 

"4 . In case the answers to questlons 1, 2 and/ 

or 3 are affirmative, and vouchers are properly 
1 i 

Hon. Paul L. Boynton, page 2 o-6140 

chargeable to the appropriation for Maintenance and 

Equipment, would Items such as roof repairs and rearrangement of the President's home, and repairs to 

the Home Economics Practice House, which requires a 

repainting job in connection therewith, be properly 

chargeable against the appropriation for 'Improvement and Repairs'?" 

That portion of the approprlation bill for Stephen F. 

Austin State Teachers College for the.blennlum beginnlng September 1, 1943 and ending September 1, 1945, Involved in your 

Inquiry read,s as follows: 

"'i-2. Maintenance and Equipment. . . .$ a,Ql9.00 $ u,Ol9.00 

Total Salaries, Summer School, 

Maintenance and Equipment. . . .$202,599.00 $204,939.00 

Improvements, Repairs and Buildings 

“73. Improvements and Miscellaneous 

Repairs. . . . . . . . . . . . . 2,500.00 2,500 

Total Improvements, Repairs and 

Buildings. . . . . . . . . . . .$2.500.00 $!2.500.00 

Section 6 of Article VIII of the Texas Constitution 

provides that: 

"No money shall be drawn from the Treasury but 

in pursuance of specific appropriations made by law." 

This provision requlres specificness as to purpose as 

well as to amount. 

If the appropriation blll~provlded only for "maintenance and equipment" under Item 72 and omitted Item 73 altogether, we would have no hesitancy in saying that all Items 

of expense which you inquire about could be properly pald out 

of Item 72 as maintenance. 

and "maintenance" 

It has been held that "equipment" 

are not synonymous. Neal v.'Cltg of Morrllton, 92 S.W. (2) 208, 209, 192 Ark. 450. It has been held 

that the term "maintenance" of schools does not include the 

cost of the construction of school houses. Love v. Rockwell 

Independent School Dlst., Civ. App. 194 S.W. 659. The word 

"maintain" is ordinarily held to include 'repairs" when there 

has been no separate provlslon made for repalrs. Words & 

Phrases, Permanent Edltlon, Vol. 26 pp. 62 to 68. When both' 

words are used In different connections In the same legislative 

act, it Is presumed that the legislature must have had a reason for their separate use. 30 Tex. Jur. 196, 202. This pre- 
c , 

Hon. Paul L. Boynton , page 3 o-6140 

sumptlon is especially strong when, as ln your lnqulrg, an 

appropriation is made for 'maintenance" and a still different 

approprlatlon 1s made for "miscellaneous repairs" ln the same 

bill. Under such circumstances our only recourse IS to find 

a difference In meaning between the words. The word "malntenance" is a broad term. 

(26) 208. 

Neal v. City of Morrllton; 92 S.W. 

In Webster's New International Dictionary, Second 

EditLon, the definition of maintain is 'to hold or keep in 

any particular state or condltlon, especially In a state of 

efficlencg or validity; to support, sustain, or uphold; to 

keep up; not to suffer to fail or decline". The definition 

of repair is "to restore to a sound or good state after decay, Injury, dilapidation or partial destruction." 

Under the limited facts that you glve us In your letter, we are of the opinion that your first three questions 

should each be answered in the affirmative. We are also of 

the opinion that your fourth question should be answered In 

the affirmative. 

Our answer to your question No. 2 is based on the assumptlon that "such plastering of walls, together wLth subsequent repaintlng" Is being done in order that the original 

walls may be preserved. Our answer to your third qusetlon is 

likewise based on the assumption that the sanding and reflnishlng of the floors is to preserve the original floors and thus 

to maintain the building as a useable part of the physical plant. 

Our ruling Is that the nature of the wdrk done will in 

each instance determine whf$ther the cost.,,is'payable out of 

"maintenance and equlflment (Item 72) of "improvements and 

miscellaneous repairs (Item 73). This IS necessarily a fact 

question and not a question of law. We cannot hold that the 

legislative intent In appropria;lng a small sum for 'lmprovements and miscellaneous repairs is that the cost of all upkeep of the physical properties of the school plant Involved 

should be payable only out of such fund. There are two reasons 

for refusing to apply the rule 'express10 unlus est exclusio 

alterlus" to this situation. We know from examination of the 

1941 appropriation bill for the same institution that heretofore the upkeep of the physical plant has been provided for 

under the Item of "maintenance and equipment". Also, we observe that In that appropriation bill the item for "maintenance and equipment" is almost ten times as large as the Item 

for "improvements and miscellaneous repairs" as provided for 

in the 1943 appropriation bill. The 1941 Legislature appropriated $23,929.00 annually for "maintenance and equipment" 

for Stephen F. Austin State Teachers College for the years 

ending August 31, 1942, and August 31, 1943, and nothing for 

"improvements and miscellaneous repairs." We are informed 

that under the prior appropriation bill the cost of upkeep for 
Hon. Paul L. Boynton, page 4 o-6140 

the physical plant known as Stephen F. Austin State Teachers 

College has been paid out of ,the appropriation for “maintenance and equipment” heretofore mentioned. We know from common knowledge that the current appropriation of $2,500.00 for 

“Improvements and miscellaneous repairs” at Stephen F. Austin 

State Teachers College is wholly inadequate to defray the 

cost of upkeep of the physical plant of that lnstltutlon for 

any one year. Rather than ascribe to the Legislature an intention which is contrary to fac,t we believe that prior appropriation bills for this institution as well as the physical 

properties to be benefitted by this appropriation may be lookea to for determining the legislative intent in the current 

bill. This is the rule applicable to the construction of other 

legislative acts and we know of no reason why it should not 

have application here. The rule is stated in Texas Jurfsprudence as follows: 

“In construing ambiguous phraseology or conflicting statutory provisions resort maybe had not 

only to the language of the particular act and that 

of other acts in pari materia, but also to clrcumstances attending its passage which bear upon the 

legislative intention. . . . Ana so when necessary 

to a correct understanding and interpretation of a 

statute, the court will take Into consideration the 

state of the law at the time of its enactment, the 

conditions designed to be dealt with, the good intended to be accomplishedand the mischief sought 

to be prevented or remedied. Furthermore, the subject-matter of the enactment and the necessity or 

occasion for it are also proper subjects of judicial 

consideration. ” 39 Tex. Jur. 214, 215, 216. 

When thus viewed we are unable to say that the 1943 legislature intended that no part of the $18,019 annual appropriation for “maintenance and equipment” for Stephen F. Austin 

State Teachers College should be used for upkeep of the physical 

plant of that institution. We, therefore, hold that only those 

Items of upkeep which are clearly for the purpose of restoration and Improvements in the sense of adding to already exlsting facilities should. be paid out of Item 73 and all other 

items of cost for upkeep should be paid out of Item 72. 

Trusting that the foregoing will aid you in passing on 

these accounts, according to your best judgment, as and when 

they are presented to you, we are 
Hon. Paul L. Boynton, page 5 o-6140 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Fagan Dickson 

Fagan Dickson 

Assistant 

FD:BT:wc 

APPROVED NOV. 16, 1944 

s/Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

This Opinion Considered And Approved In Limited Conference