THERT~OR~~I~Y 

OF TEXAS 

GENERAL 

AUSTIN. TSSXAE 7871X 

November 7, 1974 

The Honorable W. J. Estelle, Jr. 

Director 

Texas Department of Corrections 

Huntsville, Texas 77340 

Opinion No. H- 444 

Re: Disposition of income 

generated by agricultural 

operations of Department 

of Corrections. 

Dear Mr. Estelle: 

You have asked our opinion concerning the proper disposition 

of prison revenues which accrue when “surplus agricultural products” 

are authorized to be sold by the Texas Board of Corrections pursuant 

to Article 6203c, Section 9(m) of the Prison-Made Goods Act of 1963. 

You call our attention to two riders in the current appropriations 

act, (Acts 1973, 63rd Leg., ch. 659, p. 1786). The first is specifically 

attached to the appropriation for the Department of Corrections. It provides: 

It is the intention of the Legislature that the sums 

appropriated hereinabove shall constitute the maximum 

amounts required to operate the Department of Corrections . . . and that, except for the exchange of cottonseed for cottonseed meal and cake and the exchange of 

cotton for textiles, any other products or by-products 

of agriculture or livestock in excess of the quantities 

required for consumption, shall be sold, or disposed 

of through inter-agency contract, and the revenues 

accruing shall be deposited in the General Revenue 

Fund. Notwithstanding any other provisions of this Act, 

none of the revenues so deposited are reappropriated 

except as they apply to the sales of equipment, salvage, 

refunds and to recovered damage claims. (Emphasis 

added) (Acts 1973, 63rd Leg., ch. 659, at p. 1949) 

pe 2046 
The Honorable W. J. Estelle page 2 (H -444) 

The other rider is found among the appropriation act’s “General . 

Provisions” and relates to revenues accruing to state agencies under the 

Surplus and Salvage Act of 1957, Article 666, V. T. C. S. 

SURPLUS PROPERTY. Receipts to any agency 

of the State Government specified in this Act which 

are received from the sale of surplus property, 

equipment, livestock, commodities, or salvage 

pursuant to the provisions of [the Surplus anisalvage 

Act of 19571, are hereby appropriated to such State 

agency for expenditure during the fiscal year in 

which such receipts are received. Receipts from 

such surplus and salvage sales are to be credited 

to the appropriation item from which like property, 

equipment, livestock, or commodities would be 

purchased. (Acts 1973, 63rd Leg., ch. 659, at 

p. 2209). 

Your question is whether surplus agricultural revenues should be 

deposited in the General Revenue Fund, where they are unappropriated, 

or whether Article 666, 5 4(e) requires that they be credited to the lineitem which originally funded the surplus products. If the latter is the 

proper disposition you also ask whether surplus agricultural revenues 

are reappropriated in the current biennium by the Surplus Property 

rider, cited above. 

In our opini.on, the first rider as attached specifically to your 

Department’s appropriation, controls over the Surplus Property rider. 

The Legislature has affirmatively expressed an intent to not appropriate 

revenues accruing from a disposition of surplus agricultural products 

by the Texas Department of Corrections. This intent is evidenced by the 

first sentence of the rider, providing that the funds appropriated above 

it are the maximum available, and by the final sentence stating that 

“[nlotwithstanding any other provision of this Act” the revenues arising 

from a sale of surplus agricultural and livestock, products or by-products 

are not reappropriated “except as they apply to sales or equipment, salvage, 

refunds and to recovered damage claims. ” That your rider was intended 

to be an exception to the Surplus Property appropriation is also indicated 

by the phrase identifying its subject-matter as “products and by-products 

p* 2047 
The Honorable W. J. Estelle page 3 (H-444) 

of agriculture, and livestock . . . in excess of that quantity required 

for consumption . . . ” which is substantially identical to the definition 

of “surplus” agricultural products given in $ 6 of the Surplus and Salvage 

Act of 1957, Article 666, V. T. C. S. 

In addition, your rider also attempts to restrict the sale of 

surplus agricultural products to interagency contracts, and to deposit 

all income from these sales in the General Revenue Fund. 

Since your questions are principally concerned with revenues 

obtained when products are sold under Article 666, V. T. C. S., an 

interagency transaction, there is no need to consider the constitutionality 

of the rider’s interagency contract limitation in any other context. 

However, we realize that Section 9(m) of the Prison Made Goods Act 

gives the Texas Board of Corrections the option of selling surplus 

agricultural products directly to the public, under appropriate regulations, or of proceeding by means of the Surplus and Salvage Act. The 

vehicle chosen to accomplish a sale does not affect the clearly expressed 

intention that revenues derived from this type of property are not reappropriated. 

If the Texas Board of Corrections chooses to dispose of the property under the Surpl,us and Salvage Act, as it is authorized to do, we 

believe that its Section 4(e), as a matter of general law, earmarks the 

revenue from a sale under that Act to the credit of the line-item of the 

disposing agency from which the property was originally funded, and 

dedicates the revenues to the agency for its future use, contingent upon 

a present or future appropriation of such funds by the Legislature. 

Consequently, to the extent your rider attempts to divert to the General 

Revenue Fund revenues which are earmarked for a special purpose by 

general law it cannot be given effect. Johnson v. Ferguson, 55 S. W. 

2d 153, 157 (Tex. Civ. App., Austin 1932, writ dism’d). 

In the meantime, eflbct must be given to the clear import of the 

remaining portion of that rider which is that notwithstanding any other 

provision of the current Appropriation Act, including the Surplus 

Property rider mentioned above, no revenues derived fromthe sale of 

surplus agricul,tural products or livestock are reappropriated, “except 

as they apply to the sales of equipment, salvage, refunds and to recovered 

damage claims. ” 

po 2048 
The Honorable W. J. Dstelle page 4 (H-444) 

SUMMARY 

Sales of products of agriculture or livestock in 

excess of that required by the Department for consumption may be made under Article 666, V. T. C. S., 

the Surplus and Salvage Act of 1957. Revenues 

therefrom are earmarked for return to the appropriate 

line-item, but are not reappropriated in the current 

biennium, except for revenue from sales of equipment, 

salvage, refunds and recovered damage claims. 

Very truly yours, 

JOHN L. HILL c/ Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

ps 2049