Ronorable 000.

Comptrollrror Austin,Tares Dear Sir: Pebruary 15, 1939

B. Sheppard Publla &ooounta

opinionlo. o-43 Rer Claim of Rwell la110 for rent for building ge;;d to State Tax

we are in reoript or hour letter oi February 4, 1939, togother

with the follwIng enclosurrs: 1. Requisitionfor otfioe spaoe fra the State Tar Bbard to fha Stat8 Board of Control, Pated August 24, 1937, 8howIng the amount of rpaoe needed.

Call for bid8 by the State Board of Control, dated Septkber 3, 1937.

8. Bld of Rwell Xallr, dated September 7, 1937, addressedto the State Board o? Control and orferIn,g the fourth floor of the lalle Building for a period of two

r afr from September1, 1937, for an annual rent of 2400 payable at the rate of $200.00per month.

4. Letter from the State Tax Commissioner Albert I[. Daniel to Mr. J. R. Ham, Seoretaryof the State Board ot Control,4ated September 10, 1937, urging aoceptanoeof the Nalle bid.

8. copy of letter, dated September 14, 1937,irom the State Board :oi Control to the Stete Tax Board adrlalng aoceptanoeof the Nallo bid.

6. Additionalto those instruments, we have been furnishedwith the original letter, dated September14, 1937, mentioned above, and with oopy of e letter dated September 1, 1937~. rrom Albert K. Daniel, State Tax Comaissioner,to Mr. #alla advising of the desire of the State Tax Board to oontinus the lean. on the fourth floor of the Nalle Building at the same rental whloh had been paid in the past (whiohmu undqrstend was $200.00per month).Eon. 000. II. Sheppard, ?obruary L5, 1939, Page Z

7. Originallottor from Hr. Nalle to Xr. Albert X. Daniel, State TAX Oolmlasloner, dated September 4, 1937, aoknowledglng

raoelpt of said letter dated September 1, 1937, 

### end

l oo)Ptlng the offer thereinmade. ./ 0. Copy of latter dated 8eptamber 14, 1937, from tha State Board of Control to Mr. RiGelI. Nalle advising that the Board 

### had

l oaepted his bid. 9. Ph&batatio oopy of Senate Bill 80. 119 of the eurront .Laglalature.

10. Letter from Jerome Sneed, Jr., Attorney, *, to Albart II.

Daniel, 8 ate tax Commlaoloner, dated February 4 t, 1939, adrlalngthat%. lalla la standing on his rantel oontraot and la olalminga llan upon all furniture; flxturoa and 

### l

qulpmentlooated in tha leased premlaas and ~111~ hold the aaim until his 01al.m ?or rent is 

### l

atia?aotorll~ dlapoaed of.

You ask :our opinion ln response to the following questiona

: "1. 1. auoh ?urnlt&e and fixtures 

### l ubjeot to tha landlord

.la lien olaiaed by the landlord in this ease? -2. Ia the appropriationfor ofrloe rent made to the Wats Tax Board in the GeneralAppropriation tl.lll;ll aralleblafor the paymant,o?the rent

"s. I? FOU anawar the foregoingqueatlonoin the neeatlre, then plaaae advise this department tha prooedure to follow in obtainingpossessiono? the furniture



### pd l ~ulpmantna The Regular Session of the 43th Leglaletureby Seneto Bill No. MS, known es the Departmental hneral Appropriation

Bill, at page 1478, mada the biennium appropriation ror the malntenanoeof the State Tax Board, and under Item 18 of the ap roprlatlonafor that board, it reoltes: v?rioe rent, i2400 for l aoh year of the biannlum ending August 31, 1Q3Q.W-~ .

. .

,

.” .i ,!

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. I J Eon. Qeo. 8. Shepbard,February 15, 1939, Page s

The l pproprlatlono? the sum or #2400.00per year for the bienniumbeglnnl,ng September1, 1937, for ofiloe rent for the State Tax Board, unquestionably oerrledwith it the authorityfor the Board to house lta~l? ln rented ouarteraat an expensenot exoeedlng the amount approprleted. We think thla necesaarllyenvisaged the right to make some kind a? en agreementfor the renting of orfloe apeoea.

Xn the oeae or Johnson vs. Smith, 246 8. W. 1013, Supreme Court, the Comptroller, Lon A. Smith, had entered into a two year oontraotwith oertalnpersona for them to oolleot oarteln inharltanoe taxes. The law authorizing the making of the oontraot,~aaliepa&led. Thorearter, but within the term of the oontraot, oolleotIona were made and the County Tax Colleotor aid mlasIona to the oollecbora. 8 the ten per oent oomhis was a Plead=%8 aotlon broughtby Jo-on, the Tax Colleotor,to oompel the Comptrollerto oredlt his eocount with the amount thus paid the oolleotors. opinion,as ?ollowai we 00~~ peregrapha2 and & Or the

“(2) Raapondentlnalats that the artlola OS the statute under whloh the ootitreot wee medo - , did not authorizea oontreotfor any fixed or de?lnlteperiod of time, and thererorethe oontreot .“~ .~~ ran without authorityand unenforoeeble. It would be unreasonableto hold that the Leglaletureauthorized and lnatruotedthe oomptrollorto make a oontraot,rlth

some suitableperson or persona rho would render diligent aid lti the oolleotlon of lnherltanoetaxes and periormaerrloea that would entailmuoh outlay o? time, l mrgy, and expense, and yet 1Mt same to a oontreotat will. lo suitableperaon or person6would be rllllq to enter into auoh a oontreot. ‘t must be lmplied thet’theauthorltygiven lnoludedthe ~fk;~eof a oontreot for l‘glron or definite period ., 1)

. 1 “(8) The able attorneys for respondent* ‘; insist that to hold that the Leglaldtureoould :.! not repeal the law so as to tsrmlnate this end ;; l lmllar oontreota would be egalnatpub110 pol,l- ,i oy an+ ~~aaatrouato th! pub110 good. The atata, -_. ~/;:: like ~ndlrld~ala, l apeolally when ontoring into private oontraota, mu~at first roll oonalder Fhet aontraotait will, enter into or authorize,
‘with the view of having tham parf~rmed aooord-* .I

.

. Hon. Ceo. B. Sheppard, YobruarF 18, 1939, Page 4

t t

terma. when the Stats beOOm8 oontraotwith a oltlzen,tha Sam a party to a law applies to it as underllka oondltlon governs the oontreota of lndIvIduala. Andersonv. Roblson (Tex. Sup.) t29 8. W. 489, t3S S. U. eS3, and oases thorn olted, *The writ of .mndamua is grehted.* In Fort Worth Oavelry Club l V. 8hoppard, 83 8. 1. (2d) 460c Supreme Court, a mandamuswee sought to oompal the lasuanoe of a state warrant for the payment of *oartl?laateaissued ln llau of defioienoywarranta.” my The Adjutant Oonoral had purportedto ieaae an anory for flva years at #285.00 par month. The appropriation for the Adjutant (#anoral’s Department had been Wt.&d. The question raall Involved was whather the rental oontraot wee talla. 4he Buproma Court held that it was not, in the oeurae of the opinion sayings

.

“A oareful reading of the above quoted statutes olearly demonstrates that none of them oontaina any expreae lenguage authorizing the Adjutant

. Qanoral to rent or laese armories for the National Guard ?or a period o? flro yaara, or, for that matter, for any porlod. When wa oome to oonatrue l uoh a tetutea, together with the above quoted appropriation

aot, it la reasonably olear to us that the Adjutant Ganeral h&d the implied power, wlthln the reasonable llmltatIona o? such epproprlatlon, to make uontraota for the period and anb no further. This raot lllegal.W The letter from the State Tax Commlasloner to Mr. Nalle, dated September 1, 1937, an4 the reply thereto, dated September4th of the same year, would be au?flolent In themzelreato oonatltute a renewal of the then expiring lease on the fourth floor of the Nelle Building at $200.00 per month for the biennium. rurthermore, the other lnstruments end oorroapondenoo mentioned above b&eaa the Stats Tax Board end %he Board of Control and between the Board o? Control and Mr. Nelle would be sufilolent to oonatltuta a oontragt, provided the Board of Control had the’rlght to make the oontreot. Thus whether the right of oontraot raaided with the Board of Control or the Btete Tax Board is e quastlon whloh ln ltael? la not neoesaary ?or us to determine alnoe’

the above mentioned papers show that both ~3’;,. .~ euthorltiea made auoh a oontraot. .&~~.::> a:,: 7;~ ..**;~~ i ><:*,a ‘~ Tha oontraot that was made did not l xO8ed tha c, ~?*~< T a.,; ., ~, “:.:.‘.a~ i” ;,i r: anount approprlatod nor did it attempt t&go bsyond the

;~, f*$+’ ‘i.vy;;;*‘,.,i, ;:.:: ~, _.*...~ ;,r~w-/^:G ,%<, ,1‘;. ~_ : j_

,.... in

. ,_ .,.,. .~Eon. Gao. H. Sheppard,February 15, 1939, Page 6

,.fl ,/” :’ biennium for whloh the appropriation was mede. We think

the right to meke the lease agreementlnoluded the right to mike the moat advantageous **kind** of agreementthat oould be made so long a6 the State Tax Board aonflned ltsel? to the appropriation. It oould hardly be expected that a reelly advantageous oontraot oould be made whloh did not axtend to rome definiteperiod of tlms.

Our answer to your aeoond question la in the airiraative.

We understandthat you do not now desire an answer to your flr8t and third questionsin view of the above anner to pour aeoond one. Yours very truly ATTORNNY

-&IL OF TEXAS

BEL:M By (Slrnsd) Glenn R. Lewis Asslatant

APPRovm:
. (Send.) Gerald C. yIann

ATTORNEY

GENERAL

OF TEXAS