August 29, 1952 

Hon. Homer Garrison. Jr., Director 

Texas Department of Public Safety 

Austin, Texas Opinion No, V-1521 

Re: Authority of Texas ,Department 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 of certain 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. In order to properly 

understand the question presented,it is necessary to discuss the 

background material leading to the facts out of which your question arises. 

Senate Bill 439, Acts 51st Leg., R.S. 1949, ch, 439, p0 882, 

authorized the Texas Department of Public Safety to construct a 

new building to house the various divisions of that department. In 

letting the contracts for this new building.consideration was given 

to the normal expansion of the divisions and sections of the Department. but you state: 

1, D 0 D No provision was made for the inclusion 

of finished space for additional sections or divisions 

of the Department, except there were excavated areas 

in the unfinished parts of the north and south wings of 

the building on the basement level. These areas were, 

of course, 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 it was apparentat 

the time that this section of the building would not be 

occupied? 

Subsequently, in order to comply with House Bill 219, supra, 

it became necessary to establish a Motor Vehicle Safety-Responsi- 

: bility Division of the Texas Department of Public Safety,and it is your 

desire that this division be provided space in the new building. In 

order to provide this space,it will be necessary to finish a part of the 
, : 

Hon. Homer Garrison, Jr., page 2 (V-1521) 

north wing of the 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 of an attempt to secure funds with which to perform 

this necessary finishing work. 

As originally introduced.House Bill 219, supra, provided 

that the act was to become effective on September-l. and 

$300,000 was appropriated for defraying the expenses of operation from the effective date to August 31. 1952. House Journal, 

52nd Leg.. R.S. 1951, pm 3133. 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 of this,’ 

you state, is to provide $100,000 in excess of the actual operating 

expenses of the Motor Vehicle Safety-Responsibility Divisionwhich 

could be used in providing quarters for the division in the newbuifding. Concerning the use to be made of this money you state: 

Y 0 0 D 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 

‘the building by providing lighting, plumbing, heating, 

cooling and by the construction of a 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 of the Operator% and Chauffeur’s License Fund such money as 

may be necessary for the purpose of defraying the 

expenses of this 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, 1952 and 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 to administer this Act shall be used 

for the employment of necessary clerical and administrative help and for defraying the necessary expenses incident to travel, rental and any judicial 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 of all necessary furmture. fixtures and 
Hon. Homer Garrison, Jr., page 3 (V-1521) 

equipment of any,nature; provided the number of 

employees and the salaries of each shall be consistent with the number of employees and the salaries~ of each as ,fixed by the Legislature in the 

Biennial Departmental Appropriation Bill ,for like 

service. The Director of the Department shall 

prepare a budget covering operations through August 31, 1953, and submit the same for ~approval of 

the Legislative Budget Board and no warrants 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 to the Legislatimd- 

‘get Board for its approval the proposed budget of the 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 of which 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 in the 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 of the 52nd Legislature.’ 

Thus, it is to be ,seen that the Legislative Budget Board, composed 

of members of the 52nd Legislature which enacted House Bill 219, 

supra, undoubtedly construed the enactment as authorizing the expenditure .of the $IOO.OOO.OO in question for the purpose of providing adequate office space for the Safety-Responsibility Division in 

the Headquarters Building of the Department of Public Safety. 

It being 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 of the funds appropriated for the purposes stated in your 

opinion request. It is well settled that no particular form of 

wording is required to make an appropriation,and all that is 

necessary i 

“2 

authority for the expenditure and specification of 

the purpose. 

A reading of the appropriating section of the Motor 

Vehicle Safety-Responsibility Act reveals that the appropriated 

funds may be used to purchase “fixtures ,and equipment of any 

nature.* The term “fixture” has been often defined in the law. 

It is said to be a general ruIe with regard to fixtures that things 

personal in their nature which are fitted and prepared to be used 

with real estate, and ar’e essential to its beneficial enjoyment, 

become part of the soil and pass with it under a deed of conveyance, provided they are once annexed to the land and continue to 

be so used.3 

In Hutchins 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 of modern authorities 

establish the doctrine that the true criterion for 

determining whether a chattel has become an immovable fixture, consists in the united application of the following tests: 

“~1st. Has there been a real or constructive 

annexation of the article in question to the realty? 

“2d. Was there a fitness or adaptation of such 

article to the uses or purposes of the realty with 

which it is connected ? 

“3d. Whether or not it was the intention of the 

party making the annexation that the chattel should 

2/ National Biscuit Co. v. State, 134 Tex. 293. 135 S.W.2d 

687 @40); Pickle V* Finley, 91 Tex. 484, 44 S.W. 480 (1898). 

3/ Citizens’ Nat. Bank of Abilene 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 to the freehold? 

-7 this intention being inferable from the nature 

of the article, the relation and situation of the 

parties interested, the policy of the law in respect thereto, the mode of annexation, and the 

purpose or use for which the annexation is made.” 

The tests set out in the Hutchins case have been applied 

in Texas and other jurisdictions many times. As a result, there 

are decisions dealing with almost every type of property which 

can become fixed to the realty in such a manner as to become a 

part of the realty and hence a ‘“fixture.” We,therefore,mustlook 

to these cases with particular .regard to the 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 of House Bill 219. supra. 

It has been held that wiring which is used to convey electricity into a building is so attached to the realty as to become a 

part thereof.4 Based upon the reasoning of the decisions with regard to those materials necessary to provide lighting for a building, it becomes obvious that wiring and other materials which are 

placed in a building so as to provide proper lighting are fixtures 

within the le,gal definition of that term. They are ordinarily placed 

in the walls or attached to the real estate in such a manner as to 

necessitate damage both to them as well as to the real property 

in any attempt to remove the lighting facilities from a building. 

Plumbing, when installed in a building. has been held to 

be a fixture and to become a part of the real estateo5 We think it 

is necessary to apply this general holding to the fact situation presented here and on the basis of the reasoning of the 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 of the new building for the Department of Public Safety. 

4/ Keating Implement & Machine Co. v. Marshall Electric 

Lighrand Power Co., 74 Tex. 605. 12 SW. 489 (1889). 

5/ Johnson v0 Pacific Land Co., 84 Ore. 356, 164 Pac. 564 

(1917r In this case the court determined that the pipes and other 

materials necessary to supply water to a building were fixtures 

based upon: first, an annexation to the realty; second. their adaptation to use in the building; and third. the implied intention to 

make the annexation permanent, See also. Annotation 81 A.L.R. 

1440 (1932). 
Hon. Homer Garrison, Jr., page 6 (V-1521) 

There are numerous decisions to the effect that the annexation of heating apparatus to the realty causes it to become a 

part of the realty. Similarly, a unified heating plant knstalled in 

a building is considered to be a permanent part of it. It has also been held that the installation of pipes 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 of the realty in the absence of some 

contract to the contrary. js 

Air conditioning equipment has been held to be a fixture 

which, when installed in a building, becomes a part of the realty.8 

Similarly, it has been held in numerous cases that structures and 

improvements, in the nature of paving, platforms, and flooring, are 

fixtures and become a part of the 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 to the real property become a part thereof. We.therefore. 

conclude that the items which you enumerate in your request are 

within the term “fixtures and equipment of any 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 of finishing an unfinished section in the north 

6/ Young v. Hatch, 99 Me. 465, 59 Atl. 950 (1905); Capeheart 

V. Foster, 61 Minn. 132. 63 N.W. 257 (1895). 

7/ Harris V~ Harris, 174 S.W.2d 996 (Tex. Civ. App. 1943). 

?;/ Nine Hundred Main, Inc. v. City of Houston, 150 S.W.2d 

460 vex. Civ. App. 1941, error dism.). 

9/ City of Savannah v. Standard Fuel Supply Co.. 151 Ga. 145. 

106 SaE. 178 (1921). See also. Annotation 13 A.L.R. 1454 (1921). 
Hon. Homer Garrison, Jr., page 7 (V-1521) 

wing of the new Department of Public Safety Building by providing lighting, plumbing. heating, cooling, and by the construction of a floor and necessary partitions since that construction comes within the term “fixtures and equipment of any 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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