December 3, 1965 

Honorable Robert 8. Calvert 

Comptroller OS Public Acoounta 

Opinion No. C- 557 

. 

- 

Austin, Texas 

Dear ‘Mr. Calvert t 

Rer Whether the purchase of 

refrigerators, ranges, 

slnke,~ a combination of 

the three, perculatore, 

cupe, and the like need 

statutory pre-exlstlng 

law to be paid out of .. 

funds ln the. State Treasury and ,related queatlona. 

You have requested 

the following queetlonss 

td opinion of this office concerning 

“1. Please advise if the purchase of ‘ 

refrigerators, ranges, sinks, a comb&&Ion 

of the three, perculatora, cups, and etc., 

need statutory pre-exlating law to be paid 

out of funda.lri the State Treasury. 

“2. If you find that statutory law is ’ 

not required, are the ltqna listed payable out 

of this type of appropriations or does their 

payment require a; specific appropriation? 

a. ‘Consumable auppll~a and materials, 

current and recurring operating expenses (excluding travel expense) and capital outlay.’ 

b. ‘For payment of salaries and’other 

necdaa~y expenses ln carrying out the rovlalona 

of, (Statutotiy Acts creating the agenoy P .’ 

“3. If. you find that the accounts ‘in 

question oan be.lqally~pald, please advise It 

.lnvolcea’ for consumable supplies necessary for 

the operatlon,of the purchased Items may be 

pa,id. out of the appropriations quoted under 

question #2?” 

-26921 
7 

lion; Robert S. Calve&, page 2 (C- 557) 

In addition to the foregoing, you have also stated In your 

letter that various State ageticle? ,or de’partmeri$a seeking to. 

purchase such equipment as refrigerators, ranges, sinks, ‘perculato?a &rid cups, have given as their readon why such equlpmen 

should be considered neceadary In car’rylng out the statutory 

duties of the agency the explanation that:. 

“The existence of the equlpmi3nt makes it 

poaalble for the State to gain more hours of 

prod.uctive work. 

all time‘s and 

The ,~mployeea are on stall at 

work man{ nights and weekends as 

the situation demands. 

In regard to the first question posed’, pertaining to 

the necessity of pre-exlatlng law to purchase such Items as 

refrlgeratora,~rangea, sinks, perculatora and cups with funds 

paid out of the State Treasury, Section 44 ~f.Artlcle III of the 

Constitution of Texas provides In pert that: 

“’ “The Legislature shall provide by law 

for the’ compensation of ill officers, servants, 

agents aqd public contractors, not provided for 

in t&a Constitution, but shall not gran$. bxtra 

compenaatlon to any tifflcer, agent, ~aervant, or 

public contractora, after such ptibllc service 

shall have biien D&formed or contra& entered 

Into, for +he pei.?oriance of the same; nor 

by approprlatlon or otherwise, 

t fgrantr 

enyanoun o 

money out of the Treasury of the State, to q 

‘indlvldual, on a claim, real or pretended, when 

the same shall not have been provided for by 

pre-exlatlng law; nor ,employ any one in the 

name of the State, unless authorized by pro’ 

existing law. ’ .(Emphaala idded). 

The foregoing constitutional provision haa ~bt$en con&fied by 

the Courts of thib State to mean that the Legislature cannot 

appropriate State money to any individual unleaa at the tiZ 

the .aooroarlatlon la made there la already a force home vall" 

law cbnatitutlng the alalm the appropriation I,@ made .to pti a 

legal and valld’obllgatlon of .the State. Austin Nationalv. She a+di~l23’T&x. 272, 71 S.W.2d 242 (1934 C I 

-8 v. Sheppard, 123 Tex. 352, 71 s.wi:d’-%-?%)~ 

Port Worth Cavalry Club v. Sheppard, 125 Tex. 

bO (1933) . St ate v. Steck company, 236 S.W.2d 

3 g 83 S.w.2d 

1951, erro: ref.): 

366 (Tex.civ*APP* 

Cotii&utntly, .for’a State agency to purchase refrig’ 

eratora, ranges* .alnka, perculatora, cupa_ end the like there 

muat first be a pre4xiatlng law which would authorize au+ .i i 

. . -2693-. 
:Eon. Robert S. Calvert, page 3 (C-557) 

purohaaea;,and aecpndly, there must be an appropriation to the 

State agency of funds out: of which such purcharea could be made. 

III Attorney Oeneral’a Opinion No. c-546 (1965), it 

was held thetr 

(I 

‘the authorlzatlon to the Texas State 

Board ~S’Reniatration for ProfessIonal Enulndera. 

as well aa to oth& state agencies and dO&UtmeniS, 

to maintain end oDerat offloe faeilltle8 eaITit(l. 

with it ‘the flmttik authcirlzatlon to furnish thee6 

office facllltlea ,wlth BUch e i ment, furnlahlnga 

aria decor as it a&es fit, wi~imita of its 

approprlatlona. . . .* (Emphasis added). 

In view oi the foregoing, we are of the opinion that 

,there exists aurriclent pre-exlatlng law to authorize State 

,agenclea end departments t6 purchase such refrlgeratora, ranges, 

sinks, perculatora, cups and the like as such agency or department sees fi.t, within the limits of lta apprdprlatlona. 

,Your .next question pertains to whither the purchase 

of auoh, lteme 88, refiigeretora, ranges, aUka, perculatora end 

cups by a State agency or, department must be payable out of a 

speblfic apprbprlatloh or whether such purchases may be paid 

out of appropriations for the SollowIng: 

“Consumable supplies end materials,’ current 

and recurring operating expenses (excluding travel. 

expense) and capital outlay. 

We are of the opinion that the purchase of &uoh Items 

as listed above could be paid out of a apeclflc approprlatlon . 

fork the purchase of such Items, or In the alternative such Items 

Wuld be purchased from available funds In either of the foregoing type@ of appropriations quotad above. The purchase of 

refrigerators, ranges, t+&e, perculatora end oupa would certainly fall’wlthln the terminology “capital outlay” or “other 

neceaaery 0xpen808,” aa used in the foregoing examples. 

Your last question pertains to whether consumable 

~ppllea necessary for the operation of refrigerators, ranges, 

8lnka, perculatotiti and oupa may be purchased out of the apPropriatlon examplba quoted ln connection with your aeaond 

Weatlon end set forth heretofore. 

.- 
Ron. Robert 9. Calvert, page 4 (C-5571 

In answer to this question, it should first be. nom. 

ti+t there’could well be two types of consumable auppl$ea urd 

in connect:on with refrigerators , rengea~ sinks, peroulatorr 

end cupa. The SIPat type OS con’aumeble auppllea would be thaw 

used for the aare end maintenance of the equipment sought to b 

.pur&haaed--soap, dish towels, end the like.. The second type ef 

coneumable auppllea’ would be thoa’e~ used while making use of a 

equipment sought to be purchased 

end the like. 

--rood, coffee, cream, sugar 

The first of these types of consumable supplies--tboc 

.uaed f&r the care’ end malntenence of. the.refPlgeratora, range& 

sinks, peroulatora end cups--would certainly $a11 within en 8a~ 

thorlzed expenditure from either of the types of approprlatia., 

examples referred to In your second queatlon. This tpe o? 

purchase would certainly fall within the tdrmlnology consu.+ 

supplies end materials” or “other necessary expanse.” 

However, the purchase of. such Items as food, coffeG 

’ creem or auger presents a different question. Se&ion 51 0r 

Article III of the Constitution of Texas provides in part t&t? 

.f “The Leg.l,alature shall have no power to 

make any grant or authorize the making of any 

grant of public tioney to eny individual, aaaoalation of Individuals, municipal or other corporatlona whatsoever. . . .’ 

Se&Ion 6 of Article X’V’I or the Conatitutlon,of Texas providti’ 

In pert’. that a 

“No appropriation for private or’lndlvldual 

purposes shall be made. . . .” 

In the oaae’ 0; Terre11 v. Middleton, 187 S.Y. 367 

(Tex.Clv.App: 3916, error ref ) th c t habbefore It fw ' 

consideration the foregoing c&aat&,~~~l provialona ln cM&~+i 

neation wlth.en approprlation for the Oovernor’a manaio** l 

Co@ in Its opinion stated theta 

“Conalderlng the clrcumatanoea under which 

the convention met, the evlia .aought; to be remedied8 

end the .enda to be accomplished, as well as the 

personnel of the members, It cannot reasonably 

be held that ‘it ever entered the mad of Euly 

member that the Governor, under the guise Of 

maintaining the Oovernor 'a mansion, would be 

voted grooeriea to maintain his houa~~~~ 

be vot,ed food end care of the Governor a a h 

L 2 -’ -2695- 

‘:, , 
i 

. 

.; 

Bon. Robert S. Calv&, page 5 (C-+7) 

gasoline E@ repairs for his automobile, would 

be voted emboseed oerda end printed lnvltatlona 

to hIa social functions, end liquors, meat, 

vegetables,. . ..I 

(1 

. . ; 

“Clearly,. the Items for which' the comptroller 

aou&t and dealred to laaue state warrants end 

frin! which aotlon’he was restrained, were for prlvate”and Individual purposes, ahd .not for the public 

good, end the approprltitlon made for that purpose 

by;yt;&L; 

% 

%al&ine was directly in the face of 

II 6, of the Conatltution, which commands 

that ‘ho a&s?oorlatlon for Drlvate or Individual 

purposes ahilibe ziade.’ The articles named were 

3’urnlahlng gasoline for~hl’a automobile, or b furnishing groc&lea or other luxuries for lili&hKe, ‘* (Emphasis added). 

In view or the foregoing, we are of the opinion that 

appropriated funds of e State agency or department could not be 

USed to purcbaae auch’ltema as food , coffee, cream3 sugar. and 

the like which would be ultimately consumed by employees of or 

vlaltora to the State agency or department,. 

SUMMARY 

While there must be pre-exlatlng lari to authorize the Legislature to appropriate funds fox+ 

us& by State agenclea or departments In thelr purchase of euch Items as refrigerators, ranges, sinks, 

peroul,ators and +pa, there presently exlata aufflcient pre;cxlatlng law to authorize State agenclea 

end departments to purchase such refrigerators, 

ranges, blnks, peroulators end cups ‘as they see 

fit, within the llmlta of the agenoy’a or depertme~%;~5y~giom3~ Attorney 0e~eral’a 05lnlon 

Purchases of such items as r8frlgOratOr8, 

ranges, sinks, perculatora end cups by a State 

agency or .depa.rtment could be paid out Of a 

apeclfic..approprlatlon for the purchase of such 

items, or ln the alternative such Items could 2 

-2696- _T 
Hon. Robert 9. Calvert, page 6 (C- 557) 

be pur’chaaed from available funds in either 0s~ 

the two llluatratlve appropriations set forth. 

A State agency or depertment~may purohaee 

ooneumabie supplies or materials to be tieed in 

the car;& and maintenance of such items as refrlgorators, I?an&ea, alnke,’ perculatora and cups. 

However, a State agincy or department Is prohibited 

by Section 51 of Artiole ,111 of the Constitution 

of ‘Texas and Section 6, of Article XVI of the Constitution of Texas. from purchasing with State funds 

such it.ema,ad food, ooffee, creem, and 8uge.r whloh 

would ‘ultimately be coneumed by. employees of or 

visitors to the State agency or department. 

Very truly yours, 

WAOQONER CARR 

.Attorney aeneral, 

. 

PBrmkh 

APPROVED: 

OPINION COMIUTTEE 

W. V. Qedpert, Chairman 

John Reeves 

Qrady Chandler 

Roger Tyler 

Alan Minter 

Pat Bailey 

Aaalatent 

APPROVED FOR TEE ATTORNEY QENERAL 

BY: T. B. Wright 

m---c- 

. 

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