Dr. George J. Beto Director Department of Corrections Huntsville, Texas
Dear Dr. Beto: Opinion No. M-999
Re: Purchase of airplane by the Department of Corrections.

Your request for an opinion reads as follows: "Some twomonths ago the Department of Corrections lost itsplane. The Board of Corrections authorized its immediate replacement under the authority found in Senate Bill 11, Page 111-48, Paragraph 22,and Section 18 ofArticle V,Acts of the 62nd Legislature, Regular Session, 1971. The Board had previously purchased an airplane under identical language found inprior appropriation bills.
"Wewould point out that this plane isused for the return of prisoners from other states to the Department of Corrections. Under the law, the Department of Corrections is required to return parolees and prisoners to this State in the event they owe Texas time. Our log reveals that 75% of theplane's usage is involved in the return ofprisoners; 25% of the time is spent in travel fordepartmental executives. "The above-mentioned plane was purchased in accordance with the law andwhen the claim was presented to the Comptroller of PublicAccounts for approval andpayment, he refused topay the same. It

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isour position that Section 22ofArticle IIIand Section 18ofArticle V of S.B. 11, appropriations for the Department of Corrections, Clearly authorizes our department topurchase this plane. Not only do we believe this expenditure is legalbut the ownership of aplane by the Department of Corrections effects agreat savings of the taxpayers money of this State.
"Does the Texas Department of Corrections, under the legislation referred to above, have the authority to purchase andpay for an airplane?" Subdivison (a)of Section 18 ofArticle V of Senate Bill 11, Acts 62nd Legislature, R.S. 1971, as amended by Senate Bill 7, Acts 62nd Legislature, 1st C.S. 1971, provides:

"None of themoneys appropriated inthisAct may be expended for thepurchase, maintenance or operation of apassenger car or of airplanes designed forpassenger transportation unless authority to do so is statedby the language of thisAct. Where such authority is stated, thepurchase of an airplane, or the repair of an airplane, the cost ofwhich is inexcess of five thousand dollars ~$5.000), inany one fiscal year shall have the prior written approval of the Governor, and notice of such approval shallbe filed with theLegislative Budget Board." (Atp.V-43)
Item 22of the appropriation to the Department of Corrections contained in the above cited General Appropriation Act provides:

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Dr. George J. Beto. page 3 (M-999)

"For theYears Ending August 31, August 31, 1972 1973 "22. Consumable supplies and materials: current and recurring operating expense, including rewards; inquests: uniforms: medical expense of employees injured in line of duty: reimbursement of revolving funds;maintenance and operation of one airplane: capital outlay, including passenger cars: and contingencies $7,755,340" (Atp-111-48) Section 18 ofArticle V of the current General Appropriation Act above quoted is substantially identical, insofar as the same relates to your question, as Sections 20and 21 ofArticle V of House Bill 12,Acts 59thLeg., R.S. 1965. Likewise Item 22 above quoted is substantially identical to Item 12 of the appropriation to the Parks andWildlife Department contained in the 1965 Appropriation Act. In construing theprovisions of the 1965 Appropriation Act above cited, itwas held inAttorney General's Opinion C-559 (1965):

II

. . . Funds may be expended fromparagraph 12,Article 111-108, House Bill No. 12,Acts 59th Legislature, 1965, for thepurchase, maintenance and operation of the airplane." The language construed inAttorney General's Opinion C-559 (1965) is substantially identical to the language contained in the current General Appropriation Act applicable to the Department of Corrections. Our opinion is that under the facts submitted the Department of Corrections has the authority to purchase and pay for an airplane. The approval of the Governor is required if the purchase price is in excess of $5,000.00.

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: SUMMARY Funds may be expended from Item 22 of the appropriation to the Department of Corrections contained in the current General Appropriation Act for thepurchase, maintenance and operation of an airplane by the Department of Corrections; provided that if thepurchase price is in excess of $5,000.00 thewritten approval of the Governor is required. Ve&ruly yours,

Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman J. C. Davis James McCoy Marietta Payne Jack Goodman SAMMCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE FirstAssistant

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