.-

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 servicesperformed in Dear Colonel Ellis: extinguishinga 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 $25,000buildfng. Unfortunately, during the fire at Ferguson, a residence burned in Huntsville. In all probability, the residencewould have been savedhad the fire department been at home." Your supplemental I,etterfurther specifies that: "The fire departments of Huntsvilleand Madisonviliewere called. The statementgl.ven.tothem was to the effect that the main building was on fire; that our equulpment was Inadequate;and that unless we had somehelp 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, inmy opinion, constitutesan implied obligation." The questionyou ask is whether 'theTexas Department of Correctionsmay pay a bill for the reasonable value of the servicesrendered 'bythe 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
. , . shallnot grant extra compensationto any . . .public contractors,after suchpublic service shallhave 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 shallnot have been provided for by pre-existing law;
. D .' The courts have uniformly adhered to a rule of strict constructionof this portion of the Constitution,and have held that "no one has authority to make a contractbinding on the State, exceptwhere he is authorized so to do by the Constitution or a pre-existing statute." Statev. Ragland ClinicHospital, 

### 159 S.W,2d 105 (S.Ct.). In that case, a Texas Liquor Control Board agent shota 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 Statewas not bound by the contract, the Supreme Court quoted and discussed the provisions of the Constitutionabove mentioned, and held that the terms of the Liquor ControlAct 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 Statev. 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 accordancewith the requirements of the statute. The stampswere delivered to and used by the State. Paymentwas declined, and this suitwas brought for the value of the stamps. The Courtheld that the fact that the State used the plaintiff'sproperty did not authorizepayment therefor in the absence of a binding contract. The Court said:

"Ifappellee had refused to make delivery of the stampsunder the contract, the State couldnot have compelled the performance.
. . .a legal obligation against the Statewas not createdby theunauthorized contract,and appellee's c;aim was not provided for by 'pre-existinglaw'.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 cannotbe bound by an implied contract. Therefore, it is our opinion that the Texas Department of Corrections is not authorized to pay the Huntsvilleand Madisonville Fire Departments for servicesperformed in extinguishinga fire on prison property,
SUMMARY
The Texas Department of Corrections is not authorized to pay the Huntsvilleand Madisonville Fire Departments for services performed in extinguishinga 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