August 29, 1952

Hon. Homer Garrison. Jr., Director Texas Department of Public Safety Austin, Texas Opinion No, V-1521

Re: Authority of Texas ,Depart**ment** of Public Safety to use appropriated funds for finishing north wing of new headDear Sir: quarters building.

You have requested an opinion of this office concerning the expenditure ofcertain funds appropriated fur placing in operation The Motor Vehicle Safety-Responsibility Act, House Bill 219. Acts 52nd Leg.. R.S. 1951.ch. 498, p- 1210. Inorder to properly understand the question presented,it is necessary to discuss the background material leading tothe facts out ofwhich your question arises.

Senate Bill 439, Acts 51st Leg., R.S. 1949, ch, 439, p0882, authorized the Texas Department of Public Safety to construct a new building to house the various divisions ofthat department. In letting the contracts for this new building.consideration was given tothe normal expansion ofthe divisions and sections ofthe Department. but you state:

1,D0D No provision was made for the inclusion offinished space for additional sections or divisions ofthe Department, except there were excavated areas inthe unfinished parts ofthe north and south wings of the building onthe basement level. These areas were, ofcourse, inclosed by walls and roof. but with dirt floors. No provision was made for the installation of electrical lines, telephone lines, plumbing facilities, heating, ventilation, or cooling. as itwas apparentat the time that this section ofthe building would not be occupied? Subsequently, in order to comply with House Bill 219,supra, itbecame necessary to establish a Motor Vehicle Safety-Responsi-
:bility Division ofthe Texas Department of Public Safety,and it isyour desire that this division be provided space inthe new building. In order to provide this space,it will be necessary to finish a part ofthe, :
Hon. Homer Garrison, Jr., page 2 (V-1521)

north wing ofthe building. which is now unfinished. The division in question is now being housed in the Department of Public Safety Headquarters Building at Camp Mabry, Austin, Texas. Your question arises out ofan attempt to secure funds with which to perform this necessary finishing work.

As originally introduced.House Bill 219,supra, provided that the act was tobecome effective on September-l. and $300,000 was appropriated for defraying the expenses of operation from the effective date toAugust 31. 1952. House Journal, 52nd Leg.. R.S. 1951,pm3133. Subsequently,the Act was amended
so that the effective date was changed to January 1,1952.but the appropriation for the first year of operation remained the same. Senate Journal, 52nd Leg.. R.S, 1951,p. 1364. The effect ofthis,’ you state, is to provide $100,000 in excess of the actual operating expenses ofthe Motor Vehicle Safety-Responsibility Divisionwhich could be used in providing quarters for the division inthe newbuifding. Concerning the use tobe made ofthis money you state:

Y00D This money, of course, will not be used to construct a building to house this division but to finish the unfinished section referred to in the north wing of

‘thebuilding by providing lighting, plumbing, heating, cooling and by the construction ofa floor and the necessary partrtrons.” (Emphases ours.)
The appropriating portion of House Bill 219,supra, is Section 37, which provides:

‘There is hereby appropriated out ofthe Operator% and Chauffeur’s License Fund such money as may be necessary for the purpose ofdefraying the expenses ofthis Act through the biennium ending August 31. 1953.not to exceed the sum of Three Hundred Thousand Dollars ($300.000) for the fiscal year ending August 31, 1952and not to exceed the sum of Two Hundred Thousand Dollars ($200,000) for the fiscal year ending August 31, 1953. So much money as is necessary toadminister this Act shall be used for the employment ofnecessary clerical and administrative help and for defraying the necessary expenses incident totravel, rental and anyjudicial hearings relative to court review, and including the printing of all necessary forms required be this Act, and including the purchase through bids taken by the Erd of Control ofall necessary furmture. fixtures andHon. Homer Garrison, Jr., page 3 (V-1521)

equipment ofany,nature; provided the number of employees and the salaries ofeach shall be consistent with the number ofemployees and the salaries~ of each as ,fixed by the Legislature in the Biennial Departmental Appropriation Bill ,for like service. The Director ofthe Department shall prepare abudget covering operations through August 31, 1953,and submit the same for ~approval of the Legislative Budget Board and nowarrants may be issued by the Comptroller until the same shall have been approved. Such budget~shall be itemized.” (Emphasis ours,) Although not controlling. we do think it significant to note that in accordance with the provisions of Section 37, supra, the Department ~of, Public Safety presented tothe Legislatimd-

‘get Board for its approval the proposed budget ofthe Department
on November 1, 1951. The Legislative Budget Board, composed of Lt. Governor Ben Ramsey. Chairman. Speaker Ruben Senterfitt, Vice-Chairman, Senators Howard A. Carney. Jimmy Phillips, Gttis E. Lock. and Keith Kelly, and Representatives Jim Lindsey, Albert Jones, Ray Kirkpatrick, and W. H. Rampy. approved the budget, one item ofwhich provides as follows:

‘“That adequate quarters and facilities may be provided for the Safety-Responsibility Division in the new Headquarters Building for the Department of Public Safety. now under construction, as authorized by Senate Bill 439. Regular Session. 51st Legislature. the Department is authorized to supplement the aforementioned building fund inthe amount of $100,000 from the funds appropriated for the fiscal year ending August 31. 1952,by House Bill 219,passed by the Regular Session ofthe 52nd Legislature.’
Thus, it is tobe ,seen that the Legislative Budget Board, composed of members ofthe 52nd Legislature which enacted House Bill 219, supra, undoubtedly construed the enactment as authorizing the expenditure .ofthe $IOO.OOO.OOin question for the purpose of providing adequate office space for the Safety-Responsibility Division in the Headquarters Building ofthe Department of Public Safety.

Itbeing fundamental that money may be withdrawn from the State Treasury only under a specific appropriation.1 the,sole

l/ Article VIII, Section 6, Texas Constitution.Hon. Homer Garrison. Jr.. page 4 (V-1521)

question is whether Section 37 contains language which permits the use ofthe funds appropriated for the purposes stated inyour opinion request. Itis well settled that no particular form of wording is required to make an appropriation,and all that is necessary i“2authority for the expenditure and specification of the purpose.

A reading ofthe appropriating section of **the Motor**  Vehicle Safety-Responsibility Act reveals that the appropriated funds may be used to purchase “fixtures ,andequipment ofany nature.* The term “fixture” has been often defined in the law. Itis said tobe a general ruIe with regard tofixtures that things personal in their nature which are fitted and prepared tobe used with real estate, and ar’e essential to its beneficial enjoyment, become part of the soil and pass with it under a deed ofconveyance, provided they are once annexed to the land and continue to be so used.3

InHutchins V*Masterson. 46 Tex. 551(1877). the court defined the term as follows:

“The word ‘fixture’ if a legal **term,** which Lord Campbell seems to doubt, it is universally conceded, is, as a substantive term, of modern origin.

. . . “It is said, the weight ofmodern authorities establish the doctrine that the true criterion for determining whether a chattel has become an immovable fixture, consists in the united application ofthe following tests:
“~1st. Has there been a real or constructive annexation ofthe article in question to the realty?
“2d. Was there a fitness or adaptation of such article tothe uses or purposes ofthe realty with which it is connected ?
“3d. Whether or not itwas the intention ofthe party making the annexation that the chattel should

2/ National Biscuit Co. v. State, 134Tex. 293. 135S.W.2d 687 @40); Pickle V*Finley, 91Tex. 484, 44 S.W. 480 (1898). 3/ Citizens’ Nat. Bank ofAbilene v. Elk Mfg. Co., 29 S.W. 2d 1062 (Tex. Comm. App. 1930).Hon. Homer Garrison, Jr., page 5 (V-1521)

become a permanent accession tothe freehold? -7 this intention being inferable from the nature ofthe article, the relation and situation of the parties interested, the policy ofthe law in respect thereto, the mode ofannexation, and the purpose or use for which the annexation is made.”
The tests set out inthe Hutchins case have been applied in Texas and other jurisdictions many times. As a result, there
are decisions dealing with almost every type ofproperty which
can become fixed tothe realty in such a manner as tobecome a part ofthe realty and hence a ‘“fixture.” We,therefore,mustlook to these cases with particular .regard tothe items which you enumerate in your letter to determine if those items **come** within the legal definition of “fixture’ as that term is used by the Legislature in Section 37 ofHouse Bill 219. supra.

Ithas been held thatwiring which is used to convey electricity into a building is so attached to the realty as tobecome a part thereof.4 Based upon the reasoning ofthe decisions with regard to those materials necessary to provide lighting for abuilding, itbecomes obvious thatwiring and other materials which are placed in a building so as to provide proper lighting are fixtures within the le,gal definition ofthat term. They are ordinarily placed in the walls or attached tothe real estate in such a manner as to necessitate damage both tothem as well as tothe real property in any attempt to remove the lighting facilities from abuilding.

Plumbing, when installed in abuilding. has been held to be a fixture and tobecome a part of the real estateo5 We think it is necessary to apply this general holding to the fact situation presented here and onthe basis ofthe reasoning ofthe decisions holding that plumbing is a fixture, reach the conclusion that the term as used in Section 37 includes the plumbing necessary to finish the north wing ofthe new building for the Department of Public Safety.

4/ Keating Implement &Machine Co. v. Marshall Electric Lighrand Power Co., 74Tex. 605. 12SW. 489 (1889). 5/ Johnson v0Pacific Land Co., 84Ore. 356, 164Pac. 564 (1917r Inthis case the court determined that the pipes and other materials necessary to supply water to abuilding were fixtures based upon: first, an annexation tothe realty; second. their adaptation to use inthe building; and third. the implied intention to make the annexation permanent, See also. Annotation 81A.L.R. 1440(1932).Hon. Homer Garrison, Jr., page 6 (V-1521)

There are numerous decisions tothe effect that the annexation ofheating apparatus tothe realty causes it tobecome a part of the realty. Similarly, a unified heating plant knstalled in
abuilding is considered tobe a permanent part of it. Ithas also been held that the installation ofpipes and other equipment used to convey the gas from a utility company’s line to the stoves, plates, and water heaters in a house makes those pipes and other equipment fixtures and a art ofthe realty inthe absence ofsome contract tothe contrary. js

Air conditioning equipment has been held tobe a fixture which, when installed inabuilding, becomes a part ofthe realty.8 Similarly, ithas been held in numerous cases that structures and improvements, in the nature of paving, platforms, and flooring, are fixtures and become a part ofthe realty.9

Based upon these authorities, we find that property necessary to provide lighting, plumbing, heating, cooling. and to construct floors and necessary partitions, are fixtures and when aftached tothe real property become a part thereof. We.therefore. conclude that the items which you enumerate inyour request are within the term “fixtures and equipment ofany nature” as contained in Section 37 of House Bill 219, supra. and consequently the funds appropriated in that section are appropriated for the purposes for which you intend their use.

SUMMARY

The Department of Public Safety may use the funds appropriated in Section 37 of H.B. 219,Acts 52nd Leg.. R.S. 1951,ch. 498, p. 1210,for the purpose offinishing an unfinished section in the north

6/ Young v. Hatch, 99 Me. 465, 59Atl. 950 (1905); Capeheart V. Foster, 61Minn. 132. 63N.W. 257 (1895). 7/ Harris V~Harris, 174S.W.2d 996 (Tex. Civ. App. 1943). ?;/ Nine Hundred Main, Inc. v. City of Houston, 150S.W.2d 460 vex. Civ. App. 1941,error dism.). 9/ City of Savannah v. Standard Fuel Supply Co.. 151Ga. 145. 106SaE. 178(1921). See also. Annotation 13A.L.R. 1454 (1921).Hon. Homer Garrison, Jr., page 7 (V-1521)

wing ofthe new Department of Public Safety Building by providing lighting, plumbing. heating, cooling, and by the construction ofa floor and necessary partitions since that construction comes within the term “fixtures and equipment ofany nature’*
as used by the Legislature in appropriating the funds.

Yours very truly,

PRICE DANIEL Attorney General

APPROVED: Mary Kate Wall Reviewing Assistant
Charles D. Mathews First Assistant **BY**
Assistant

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