December 3, 1965

Honorable Robert 8. Calvert Comptroller OSPublic 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 P agenoy .’

“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 maybe pa,id.out of the appropriations quoted under question #2?”

-269217

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$aseeking to. purchase such equipment as refrigerators, ranges, sinks, ‘perculato?a &ridcups, 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 equlpmi3ntmakes 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$. bxtra compenaatlon to any tifflcer, agent, ~aervant, or public contractora, after such ptibllc service shall have biien D&formed or contra& entered Into, for +he pei.?oriance of the same; nor by approprlatlon or otherwise, t fgrantr enyanoun o money out of the Treasury of the State, to q ‘indlvldual, on a claim, real or pretended, when the same shall not have been provided for by pre-exlatlng law; nor ,employ any one in the name of the State, unless authorized by pro ’ existing law. ’ .(Emphaalaidded). The foregoing constitutional provision haa ~bt$en con&fied by the Courts of thib State to meanthat the Legislature cannot appropriate State money to any individual unleaa at the tiZ the .aooroarlatlon la madethere la already a force homevall" 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, 123Tex. 352, 71 s.wi:d’-%-?%)~ Port Worth Cavalry Club v. Sheppard, 125 Tex. bO (1933) . State v. Steck company, 236 S.W.2d3 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 BUche 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 maybe paid out of appropriations for the SollowIng:

“Consumable supplies end materials,’ current and recurring operating expenses (excluding travel. expense) and capital outlay.

Weare of the opinion that the purchase of &uohItems as listed above could be paid out of a apeclflc approprlatlon

. forkthe 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 maybe 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 OScon’aumeble auppllea would 

### be thaw used for the aare end maintenance of the equipment sought tob .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 makeany 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’Ior 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 

### forthe 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 memberthat the Governor, under the guise Of maintaining the Oovernor 

### 'amansion, wouldbe voted grooeriea to maintain his houa~~~~ be vot,ed food end care of the Governor a 

### ah 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 madefor that purpose by;yt;&L; %

%al&ine was directly in the face of II6, 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, 

### cream3sugar. 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- _THon. 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 

### ormaterials to be tieed in the car;&andmaintenance 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 ,111of 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.rwhloh would ‘ultimately be coneumedby.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

FORTEEATTORNEYQENERAL BY: T. B. Wright

m---c- .

l