## 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 ofincome generated byagricultural operations ofDepartment of Corrections. Dear Mr. Estelle:

You have asked our opinion concerning the proper disposition ofprison revenues which accrue when “surplus agricultural products” are authorized tobe sold by the Texas Board of Corrections pursuant toArticle 6203c, Section 9(m) ofthe Prison-Made Goods Act of 1963.

You call our attention totwo riders in the current appropriations act, (Acts 1973, 63rd Leg., ch. 659, p. 1786). The first is specifically attached tothe appropriation for the Department of Corrections. Itprovides: Itis the intention ofthe 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 ofagriculture or livestock in excess of thequantities required for consumption, shall be sold, or disposed ofthrough inter-agency contract, and the revenues accruing shall be deposited in the General Revenue Fund. Notwithstanding any other provisions ofthis Act, none ofthe 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)
pe2046The 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 toany agency ofthe 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 tobe credited tothe 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, 54(e) requires that they be credited to the lineitem which originally funded the surplus products. Ifthe latter is the proper disposition you also ask whether surplus agricultural revenues are reappropriated inthe current biennium by the Surplus Property rider, cited above.

Inour opini.on, the first rider as attached specifically toyour Department’s appropriation, controls over the Surplus Property rider. The Legislature has affirmatively expressed an intent to not appropriate revenues accruing from adisposition of surplus agricultural products by the Texas Department of Corrections. This intent is evidenced by the first sentence ofthe rider, providing that thefunds appropriated above it are the maximum available, and by the final sentence stating that

“[nlotwithstanding any other provision ofthis 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 bean exception to the Surplus Property appropriation is also indicated by the phrase identifying its subject-matter as “products and by-products p*2047The Honorable W.J. Estelle page 3 (H-444)

ofagriculture, and livestock
. . .in excess ofthat quantity required for consumption
. . .” which is substantially identical to the definition of “surplus” agricultural products given in $6ofthe Surplus and Salvage Act of 1957, Article 666, V. T. C.S.

Inaddition, 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 noneed to consider the constitutionality ofthe rider’s interagency contract limitation in any other context. However, we realize that Section 9(m) ofthe 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 ofproceeding by means ofthe Surplus and Salvage Act. The vehicle chosen toaccomplish a sale does not affect the clearly expressed intention that revenues derived from this type of property are not reappropriated.

Ifthe Texas Board of Corrections chooses to dispose of theproperty under the Surpl,us and Salvage Act, as itis authorized to do, we believe that its Section 4(e), as a matter ofgeneral law, earmarks the revenue from a sale under thatAct tothe credit ofthe line-item ofthe disposing agency from which the property was originally funded, and dedicates the revenues to theagency for its future use, contingent upon a present or future appropriation of such funds by the Legislature. Consequently, tothe 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).

Inthe meantime, eflbctmust be given to the clear import ofthe remaining portion ofthat rider which is that notwithstanding any other provision ofthe 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 2048The Honorable W.J. Dstelle page 4 (H-444)

SUMMARY Sales ofproducts ofagriculture or livestock in excess ofthat 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, butare not reappropriated in the current biennium, except for revenue from sales ofequipment, salvage, refunds and recovered damage claims. Very truly yours,

JOHN L. HILL 

# c/ Attorney General ofTexas

DAVID M. KENDALL, Chairman Opinion Committee

ps 2049