T E 

XAS 

Honorable J. R. Singleton 

Executive Director 

Opinion No. M-747 

Texas Parks and Wildlife Department Rer Status of a contract for 

John H. Reagan Eulldlng the construction of 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 subject matter 

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 'State Building Commission Contract Award' (made on behalf 

of the State of Texas), in the amount of 

$1,300,245 for project No. 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 ending August 31, 1970, and 

August 31, 1971, avallabla for expenditure for 

the purpose appropriated? 

You have enclosed with your request the following documents! 

1; A copy of the agreement of acceptance dated 29 April, 

1970, which was executed following Parks and Wildlife Commission 

approval on April 28, 1970, of the budgeting of funds for construction of the pass and approaches. 

-3637- 
Hon. J. R. Singleton, page 2 (M-747) 

2. A portion of the minutes of the Parks and Wildllfe 

Commission meeting Indicating approval of the Commissfon of this 

project. 

3. The minutes of the State Building Commission meeting 

of May 6 approving selection of Turner, Collie and Braden, Inc. 

as consulting engineers. 

4. The engineering agreement between the State Building 

Commission and 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 indicating a need for some specific engineering data 

and inviting them to submit a proposal. 

6. A letter on behalf of the State of Texas addressed 

to Frank Bryant and Associates Indicating acceptance of their 

proposal for the soil tests. 

7. A copy of a letter addressed to this office by the 

State Building Commission suggesting 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 supplemental agreement of acceptance ltidicatlng 

that the second year funds for the proJect would be available. 

9. A copy of a letter from the State Building Commission 

to Turner, Col,lle, and Braden, Inc. proposing an amendment to the 

existing contract for engineering services. 

10. A copy of a Public Notice published on behalf of the 

State of Texas calling for bids to be submitted no later than 2 P.M., 

August 27, 1970 for construction of the project. 

The Contract Award 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 

certiflcatlon that appropriations are available for the contract 

described above. 

12. A copy of a letter from Brown and Root, Inc. indlcatlng their willingness to hold the bids firm until November 24, 1970 

pending definitive award of the job. 

-3638- 
Hon. J. R. Singleton, pages 3 (M-747) 

13. A copy of the Comptroller's Journal Voucher lndicating that the $1,300,245 previously set aside for payment 

to Brown and Root, Inc. upon successful completion of their contract and $1,500,000 of the 1970-71 funds plus the unexpended balance of $73,725.62 from the 1969-70 appropriations are placed 

in suspense. 

You further state that the following expenditures and 

encumbrances of funds appropriated for thls purpose for the fiscal 

year ending Au$;;t 31, 1970 have be? made: 

AMOUNT 

"Turner) Cxlle and Braden 

VOUCHER NO. 

6159 01 

Frank Bryant and Associates 8 g6kl 

The Houston Post 2 

$ 12$z-?: 

,8 25-12 

Caller-Times Publishing Company 

Turner, Collie ,and Braden 

Turner, Collie and Braden 

Frank B-zyant and 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 appropriation to 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 construction of a water exchange 

pass (and bridge) between Corpus Christ1 Bay and the 

Gulf of Mexico adjacent to Mustang Island according 

to preliminary,engineerlng plans. *.,,............t, 

$1,,500,000 $1,500,000” 

In construing~the above quoted provisions, we held In 

Attorney General's Opinion M-57&,( 1970): 

"You are therefore advised in answer to your 

second and third questions that If the Parks and 

Wildlife Department Intends to,malntaln the 'water 

exchange pass' as a fish pass, such funds may be 

-3639- 
I 

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

expended from the Special Game and Fish Fund No. 

9; . . ." 

In Attorney General's Opinion M-721 (1970), with regard 

to the construction of the fish pass in question, we expressed the 

opinion that the Parks and Wildlife Department may 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 Opinion No. 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 submitted pursuant to advertisement for bids and 

subsequent to the allotment of funds appropriated by the Legislature 

in Item 23 for such purpose, said allotments being made by the State 

Building Commission and the Parks and Wildlife Department on the 29th 

day of April, ‘1970. ~No formal contract however has been signed by 

Brown and Root; Inc., and agents of the State of Texas. 

All acts by the State Building Commission have been approved by the Parks and Wildlife Department in connection with the 

awarding of this contract. Therefore, while the State Building 

Commission for reasons stated in Attorney General's Opinion M-721 

(1970) did not have the constitutional power 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 Commission and the Parks and Wildlife 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 constitutes a valid and 

binding contract between Brown and Root, Inc. and the State of Texas 

for the work described in the document dated August 28?, 1970, designated as "State Building Commission Contract Award, In the amount 

of $1,300,245.00 for Project No. O-069-802, and the Parks and Wildlife 

Department is required to execute the contract in accordance with the 

bid of Brown and Root, Inc. and the award made by the State Building 

Commission and the Parks and Wildlife Department. 

-3640- 
, . 

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 unencumbered balance 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 fiscal year 

ending August 31, 1970, has lapsed. 

In answer to your third question, you are advised that 

monies appropriated in Item 23 for the fiscal year ending August 

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 encumbered monies appropriated to the 

Parks and Wildlife Department for the construction 

of a fish pass. Balances remaining in funds appropriated for the fiscal year ending August 31, 

1970, which have not been expended or encumbered 

lapsed for the reason that such balances were not 

reappropriated for the fiscal year ending August 

31, 1971. Monies appropriated for the fiscal 

year ending August 31, 1971, are available for 

expenditure for the purpose appropriated. 

Ve 

Prepared by John Reeves 

Assistant Attorney (feneral 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

J. C. Davis 

Arthur Sandlin 

Houghton EQ-ownlee 

Max Flushe 

-3641- 
‘ , 

Hon. J. R. Singleton, page 6 (M-747) 

MEADE F. CtRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLAWRITE 

First Assistant 

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