Ronorable 000. 

Comptrollrr or 

Austin, Tares 

Dear Sir: 

Pebruary 15, 1939 

B. Sheppard 

Publla &ooounta 

opinion lo. 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. Requisition for 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, 

addressed to the State Board o? Control and orferIn,g the 

fourth floor of the lalle Building for a period of two 

r 

afr from September 1, 1937, for an annual rent of 

2400 payable at the rate of $200.00 per month. 

4. Letter from the State Tax Commissioner Albert 

I[. Daniel to Mr. J. R. Ham, Seoretary of the State Board ot 

Control, 4ated September 10, 1937, urging aoceptanoe of the 

Nalle bid. 

8. copy of letter, dated September 14, 1937, irom 

the State Board :oi Control to the Stete Tax Board adrlalng 

aoceptanoe of the Nallo bid. 

6. Additional to those instruments, we have been 

furnished with the original letter, dated September 14, 

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 (whioh mu undqrstend was $200.00 per month). 
Eon. 000. II. Sheppard, ?obruary L5, 1939, Page Z 

7. Original lottor 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 therein made. ./ 

0. Copy of latter dated 8eptamber 14, 1937, from 

tha State Board of Control to Mr. RiGelI. Nalle advising 

that the Board h a l d 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, adrlalng that%. lalla la standing on his rantel 

oontraot and la olalming a llan upon all furniture; flxturoa and l qulpment looated 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 appropriation for ofrloe rent made 

to the Wats Tax Board in the General Appropriation 

tl.lll;ll arallebla for the paymant,o? the rent 

"s. I? FOU anawar the foregoing queatlono in 

the neeatlre, then plaaae advise this department tha 

prooedure to follow in obtaining possession o? the 

furniture p d l ~ulpmantna 

The Regular Session of the 43th Leglaleture by 

Seneto Bill No. MS, known es the Departmental hneral 

Appropriation Bill, at page 1478, mada the biennium appropriation ror the malntenanoe of the State Tax Board, 

and under Item 18 of the ap roprlatlona for that board, 

it reoltes: v?rioe rent, i 2400 for l aoh year of the 

biannlum ending August 31, 1Q3Q.W 
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. 

, 

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,! 

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.c’. 

I 

J 

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

The l pproprlatlon o? the sum or #2400.00 per 

year for the biennium beglnnl,ng September 1, 1937, for 

ofiloe rent for the State Tax Board, unquestionably 

oerrled with it the authority for the Board to house 

lta~l? ln rented ouartera at an expense not exoeedlng the 

amount approprleted. We think thla necesaarlly envisaged 

the right to make some kind a? en agreement for 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 oontraot with oertaln persona 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 

brought by Jo-on, the Tax Colleotor, to oompel the 

Comptroller to oredlt his eocount with the amount thus 

paid the oolleotors. 

opinion, as ?ollowai 

we 00~~ peregrapha 2 and & Or the 

“(2) Raapondent lnalats that the artlola 

OS the statute under whloh the ootitreot wee medo - , 

did not authorize a oontreot for any fixed or 

de?lnlte period of time, and thererore the oontreot .“~ .~~ 

ran without authority and unenforoeeble. It would 

be unreasonable to hold that the Leglaleture authorized and lnatruoted the oomptrollor to make 

a oontraot,rlth some suitable person or persona 

rho would render diligent aid lti the oolleotlon 

of lnherltanoe taxes and periorm aerrloea that 

would entail muoh outlay o? time, l mrgy, and 

expense, and yet 1Mt same to a oontreot at will. 

lo suitable peraon or person6 would be rllllq 

to enter into auoh a oontreot. ‘t must be lmplied thet’the authorlty given lnoluded the 

~fk;~eof a oontreot for l ‘glron or definite period ., 1

. 1 

“(8) The able attorneys for respondent* ‘; 

insist that to hold that the Leglaldture oould : .

not repeal the law so as to tsrmlnate this end ;

l lmllar oontreota would be egalnat pub110 pol,l- 

,

oy - _. an+ ~~aaatroua to th! pub110 good. The atata, ~/;

like ~ndlrld~ala, l apeolally when ontoring into 

private oontraota, mu~at first roll oonalder 

Fhet aontraota it 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 

a party to a oontraot with a oltlzen, tha Sam 

law applies to it as underllka oondltlon governs 

the oontreota of lndIvIduala. Anderson v. 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 mandamus wee sought to 

oompal the lasuanoe of a state warrant for the payment 

of *oartl?laatea issued ln llau of defioienoy warranta.” my 

The Adjutant Oonoral had purported to 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. 4 he 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 uo h 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 September 4th of the same year, would be au?flolent 

In themzelrea to 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 agreement lnoluded the right 

to mike the moat advantageous kind of agreement that 

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 definite period of tlms. 

Our answer to your aeoond question la in the 

airiraative. 

We understand that you do not now desire an 

answer to your flr8t and third questions in 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