.- 

January 3, 1958 

Colonel 0. B. Ellis 

Director, Texas Department 

of Corrections 

Huntsville, Texas 

Opinion No. W-336 

Re: Authority of the Texas 

Department of Corrections to pay the Huntsville and Madisonville 

Fire Departments for 

services performed in 

Dear Colonel Ellis: 

extinguishing a fire 

on prison property. 

Your request for an opinion states that: 

"On October 28, 1957, we had a fire at Ferguson Farm 9 . . 

mately $50,000. 

resulting in a loss of approxiThe volunteer fire departments of 

the ci,ty of Huntsville and the city of Madisonville 

came to our rescue. Without their aid, we would 

have lost another $25,000 buildfng. Unfortunately, 

during the fire at Ferguson, a residence burned in 

Huntsville. In all probability, the residence would 

have been saved had the fire department been at home." 

Your supplemental I,etter further specifies that: 

"The fire departments of Huntsville and Madisonvilie were called. The statement gl.ven .to them 

was to the effect that the main building was on 

fire; that our equulpment was Inadequate; and that 

unless we had some help we would lose everything. 

There was no mention made of a fee, but the fact 

that we urged them to go to an area outside their 

jurisdiction, in my opinion, constitutes an implied obligation." 

The question you ask is whether 'the Texas Department of Corrections may pay a bill for the reasonable value 

of the services rendered 'by the Fire Departments of the City 

of Huntsville and the City of Madisonville. 
Colonel 0. B. Ellis, page 2 (~~-336 1 

Section 44, Article III of 

provides in part as follows2 

the Constitutionof Texas 

"The Legislature . , . shall not grant extra 

compensation to any . . . public contractors, after 

such public service shall have been performed or 

contract entered into, for the performance of the 

same; nor grant, by appropriation or otherwise, any 

amount of money out of the Treasury of the State, 

to any individual, on a claim, real or pretended, 

when the same shall not have been provided for by 

pre-existing law; . D .' 

The courts have uniformly adhered to a rule of 

strict construction of this portion of the Constitution, and 

have held that "no one has authority to make a contract binding 

on the State, except where he is authorized so to do by the Constitution or a pre-existing statute." State v. Ragland ClinicHospital, 159 S.W,2d 105 (S.Ct.). In that case, a Texas Liquor 

Control Board agent shot a person during a raid and took him 

to the hospital for treatment, stating that the Liquor Board 

would pay the bill. In holding that the State was not bound 

by the contract, the Supreme Court quoted and discussed the 

provisions of the Constitution above mentioned, and held that 

the terms of the Liquor Control Act could not be expanded by 

implication, and that the doctrine of apparent authority could 

not be employed to expand the authority of the agents of the 

State. 

In State v. Steck Company, 236 S.W.2d 866, writ ref., 

the second of a series of contracts for the printing of stamps 

was not executed in accordance with the requirements of the 

statute. The stamps were delivered to and used by the State. 

Payment was declined, and this suit was brought for the value 

of the stamps. The Court held that the fact that the State used 

the plaintiff's property did not authorize payment therefor in 

the absence of a binding contract. The Court said: 

"If appellee had refused to make delivery of 

the stamps under the contract, the State could not 

have compelled the performance. . . . a legal 

obligation against the State was not created by 

the unauthorized contract, and appellee's c;aim 

was not provided for by 'pre-existing law'. 
Colonel 0. B. Ellis, page 3 (w-336) 

From these and many other authorities, we believe 

that it is an inescapable conclusion that the State cannot be 

bound by an implied contract. Therefore, it is our opinion 

that the Texas Department of Corrections is not authorized to 

pay the Huntsville and Madisonville Fire Departments for 

services performed in extinguishing a fire on prison property, 

SUMMARY 

The Texas Department of Corrections is 

not authorized to pay the Huntsville and 

Madisonville Fire Departments for services 

performed in extinguishing a fire on prison 

property, in the absence of pre-existing 

law authorizing contracts for such services. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

RRR:jl:zt 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

J. C. Davis, Jr. 

W. V. Geppert 

Leonard Passmore 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: James N. Ludlum