### T EXAS

Honorable J. R. Singleton Executive Director OpinionNo. M-747 Texas Parks and Wildlife Department Rer Status of a contract for John H. Reagan Eulldlng the constructionof a Austin, Texas 

### 78701 fish pass between Corpus Chrlsti Bay and the Gulf of Mexico, adjacent to Mustang Island,and reDear Mr. Singleton8 lated questions.

Your request for an opinion on the above subjectmatter asks the following questions:

"1. Does a valid, binding contract exist between Brown and Root, Inc. and the State of Texas for the work described In the document dated August 

### 28, 1970,and styled 'StateBuilding Commission ContractAward' (made on behalf of the State of Texas), in the amount of $1,300,245 for projectNo. O-069-802? “2. Have monies appropriated in Item 23, House Bill 2, 61st Legislature,Second Called Session, to the Parks and Wildlife Department for the fiscal year ending August 

### 31, 1970, been obligated? 

### "3. Are the balances remaining In Item 23 for fiscal years endingAugust 31, 1970, and August 31, 1971, avallabla for expenditure for the purpose appropriated? You have enclosedwith your request the followingdocuments! 1; A copy of the agreement of acceptancedated 29 April, 1970,which was executed following Parks andWildlife Commission approval on April 

### 28, 1970, of the budgeting of funds for construction of the pass and approaches.

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2. A portion of theminutes of the Parks and Wildllfe Commissionmeeting Indicatingapproval of the Commissfon of this project. 

### 3. The minutes of the State Building Commissionmeeting of May 

### 6 approving selection of Turner, Collie and Braden, Inc. as consultingengineers.

4. The engineeringagreementbetween the State Building Commissionand Turner, Collie, and Braden, Inc. for their services on behalf of the State of Texas.

,. 

### 5. Copies of letters on behalf of the State of Texas to various firms indicatinga need for some specific engineeringdata and inviting them to submita proposal.



### 6. A letter on behalf of the State of Texas addressed to Frank Bryant and Associates Indicatingacceptance of their proposal for the soil tests.



### 7. A copy of a letter addressed to this officeby the State Building Commissionsuggesting that funds for the fiscal year ending August 

### 31, 1971 be made available in order that the works contracted for can be better handled.



### 8. A supplementalagreement of acceptance ltidicatlng that the secondyear funds for the proJectwould be available.



### 9. A copy of a letter from the StateBuilding Commission to Turner, Col,lle, and Braden, Inc. proposingan amendment to the existing contract for engineering services.

10. A copy of a PublicNotice published on behalf of the State of Texas calling for bids to be submittedno later than 2 P.M., August 27, 1970 for constructionof the project.

The ContractAward referred to In Question 1 above dated **~uguii ’** **28,** 1970 committing $1,300,245 for the items speclflkd to Brown and Root, Inc. This Contract Award carried the Comptroller's certiflcatlonthat appropriationsare available for the contract described above.

12. A copy of a letter from Brown and Root, Inc. indlcatlng theirwillingness to hold the bids firm until November 24, 1970 pending definitive award of the job.

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13. A copy of the Comptroller'sJournalVoucher lndicating that the $1,300,245previously set aside for payment to Brown and Root, Inc. upon successful completion of their contract and $1,500,000of the 1970-71 funds plus the unexpended balance of $73,725.62 from the 1969-70 appropriationsare placed in suspense.

You further state that the following expendituresand encumbrances of funds appropriated for thls purpose for the fiscal year ending Au$;;t 31, 1970 have be? made: AMOUNT "Turner)Cxlle and Braden VOUCHERNO. 6159 01 Frank Bryant and Associates 8 g6kl The Houston Post 2 $ 12$z-?: ,8 25-12 Caller-Times PublishingCompany Turner, Collie ,andBraden Turner, Collie and Braden Frank B-zyantand Associates TOTAL ' 2$@& 88$fz: 202-01 $;'3'8:;~ 482-01 2:140:00 Encumbered to Brown and Root L:::x 1,300:2$5:00 Expended or encumbered BALANCE REMAINING ' 73:725:62 ” Item 23 of the appropriationto the Parks and Wildlife Depart ment, contained in House Bill 2, Acts 61st Leg. 1969, 2nd C.S. reads as follows: 'For the Years Ending August 31, 1970 August 31,1971

“23. For preparation of detailed plans and specifications,and all other necessary costs in connection with first phase constructionof a water exchange pass (andbridge) between Corpus Christ1 Bay and the Gulf of Mexico adjacent to Mustang Island according to preliminary,engineerlngplans. *.,,............t,

$1,,500,000 $1,500,000 ” In construing~theabove quoted provisions,we held In Attorney General's Opinion M-57&,( 1970):

"Youare therefore advised in answer to your second and third questions that If the Parks and Wildlife Department Intends to,malntaln the 'water exchangepass' as a fish pass, such fundsmay be

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Hon. J. R. Singleton,page 4 (M-747)

expended from the Special Game and Fish Fund No. 9;
. . ." In Attorney General's OpinionM-721 (1970),with regard to the constructionof the fish pass in question,we expressed the opinion that the Parks and Wildlife Departmentmay contract for the construction of the bridge and approaches with an Independent contractor . We further concluded that the State Building Commission could not contract for such construction.

Prior to the release of OpinionNo. M-721, dated November 

### 5, 1970, the State Dulldlng Commission on August 28, 1970,made an award In writing to Brown and Root, Inc., for such construction in the amount of ,$1,300,245.00. Said award was made to the lowest and best bidder of bids submittedpursuant to advertisement for bids and subsequent to the allotment of funds appropriatedby the Legislature in Item 23 for such purpose, said allotmentsbeing made by the State Building Commissionand the Parks andWildlife Department on the 29th day of April, ‘1970.~Noformal contract however has been signed by Brown and Root; Inc., and agents of the State of Texas.

All acts by the State Building Commissionhave been approved by the Parks and Wildlife Department in connectionwith the awarding of this contract. Therefore,while the State Building Commission for reasons stated in Attorney General's OpinionM-721 (1970)did not have the constitutionalpower and authority to act for the State of Texas, it is nevertheless our opinion that such acts are binding on the Parks and Wildlife Department,an agency of the State of Texas, authorized to bind the State.

It is fundamental that all contracts spring from an 'offer"and "acceptance." 13 Tex.Jur.2d 130, Contracts, §15.

Since the bid of Brown and Root, Inc. (offer)was accepted by the State Building Commissionand the Parks andWildlife Department (award of the State Building Commission accepted and approved by the Parks and Wildlife Department), it is our opinion in answer to your first question that such action constitutesa valid and binding contractbetween Brown and Root, Inc. and the State of Texas for the work described in the document dated August 

### 28?, 1970,designatedas "StateBuilding Commission ContractAward, In the amount of $1,300,245.00for ProjectNo. O-069-802, and the Parks andWildlife Department is required to execute the contract in accordancewith the bid of Brown and Root, Inc. and the award made by the State Building Commissionand the Parks and Wildlife Department.

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Hon. J. R. Singleton,page '5 (M-747)

In answer to your second question,you are further advised that monies appropriated in Item 23 under the facts submitted have been obligated in the amount of 1,426,274.38, leaving an unexpended and unencumberedbalance of $73,725,62. Since the Legislature did not appropriate the unexpended balance,you are advised that the balance remaining ln~the appropriation for the fiscalyear ending August 31, 1970, has lapsed.

In answer to your third question,you are advised that monies appropriated in Item 23 for the fiscalyear endingAugust 31, 1971, are available for expenditures for the purpose appropriated SUMMARY An award by the State Building Commission approved by the Parks and Wildlife Department legally encumberedmonies appropriated to the Parks and Wildlife Department for the construction of a fish pass. Balances remaining in funds appropriated for the fiscalyear endingAugust 31, 1970,which have not been expended or encumbered lapsed for the reason that suchbalanceswere not reappropriated for the fiscal year endingAugust 31, 1971. Monies appropriated for the fiscal year endingAugust 31, 1971, are available for expenditure for the purpose appropriated. Ve

Preparedby John Reeves AssistantAttorney (feneral APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman J. C. Davis Arthur Sandlin Houghton EQ-ownlee Max Flushe
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Hon. J. R. Singleton,page 

### 6 (M-747)

MEADE F. CtRIFFIN Staff Legal Assistant ALFREDWALKER ExecutiveAssistant NOLAWRITE First Assistant

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