.i

**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS**
**AUSTIN QausGYur**  **P \**  **Man ‘** **-**

**, ’** 

Honorable **Barry iinor,**  Chpirman, State ltoard

of Control Austin, Tesas
-Dear Dr. Knox)

nci various other papers and let-

,,
l l'hiti work was begun during: th, fiscal year endlnt~

August 31, 1940, anti the'State noard of Control, as the authorized sponsor or this w. P. A. projeot, ordorod tho transfer of tho sum of $13,246 from tho Iiormille Stab tinnnturium'ssupport and molntonance appropriationfor the year ,?ndir.g hug. 31,Lion. Harry Lnox - pga 2

1940, to that institutionlsappropriation **ror** general repairs and imprwements. This amount represented the Sponeor*s share in payment for this projeot,which the Federal Qoverumenthas agreed to ma%h vith $13,400~ the estimated total oost of the project Is $26,666.
'The Federal Government furnishesall common labor **.for** this prejeatfrom its 1. P. A. nolle, but this Board is required to furnish a Sponsor's Superintendent, rhlch it has done. The **rork** has neoeasarilyextended beyond tho fiscal year endlng Aug. 31, 1940, and -isetlll in progress. Thererore, this Board has submitted to the State Comptroller 8 payroll, 8 COWof vhioh is enolosed hererpith,

requestingpayment of the Sponsor*e Superintendent's salary for the month of Septonbcr,1940, out of the Ilerrrille State Sanatorium*sappropriationfor general repairs and imprwoments for the fiscal year ending Aug. 31, 1940, since the work was agreed upon and begun by the Board of Control and the Federal Gwernmont in the last fiscal year, and a oertain sum erasearmsrkeii and set aside out of appropriations ror that year to proride full payment for the sponsor's share of the prbjeot..The Oomptrollervsoffice has refused to apprwe payment 0r this payroll out of last yonr~s appropriationfor that purpose.
aIn ties or the ro4ts abwe presented, aud in view of the lmportanoe of this question In connectionwith possiblefuture building projectswhich oannot be aompletod within the term of oue fiscal year, your valued opinionIS reepeotfullyrequested on tho fOllOWing quostionst
'1. Can tho salary of the Spon80r1s Superintendent

and other neoesearyrorkmen on thiis

w. P. A, projeot for work done in the present fiscal yoar on said projootbe paid out of an appropriationfor the precod-. - Hon. Barry iinos - p8ge 3

ing fiscal year, whoro tho projectwas agroed up@n, begun, md money set aside in paynxvnt

therofor in said proceding fiscal year?
'2. In general,whera the Board of Control enters into a oonstructionor slmllar projoots,purchnsingits own materials 8nd hirlng It8 own workmem for the project,the time for completion.of which will of necessity extend beyond the term of the fiscal ye8r in which an appropriationis set aside in full payment for such project, can the workmen on such project be paid for work done in a subsequent tiscal year out 0r a preceding year's appropriation which has been so earmarked?*
ye are of the oplnlonyour questionsshould be answered in the negative.

These answers are controlledby the following considerations and opinions of this dey8rtmontt
Under Seotion 0, of ArticleVIII of the Ccnstitution,no appropriationof money my be ruzde by the Legislaturefor 8 longer torn than two years. Uorcover, the biennial appropriations by tho Lcgislaturo are **in** truth onuual a?prq3rintionsfor the term of two years, and the balance of sums appropriatedfor a given fiscal year revert to the Stat0 at ths end Of that fiscal year, in the absence of 8 specificre-nppropriation.

It is the policy and nonnin,g of the 1~ that the appropriationis to be ospsn:l~.? :iUYi.?J~ the year for which It was made.

It does **not** follow, howovor, thnt an approyriati.on

for use during the scconc1 fiscal yc3r <IT

th? biennium ray not **be** expended or committeddurlnl: the first year. In other words, 8 purchnse or contract contemplating

an expenditurefrom the npproprlation for the secotiyear of a biennial period may neverthcloss be validly onterod IntO dUriW the first ye8r, where the supplies or equipment ara not to bo delivered or used, or the servioes are not to be performeduntilBon. Sarry Knos - pogc 4

the secoxl year. Actual delivery, or performance, however, is not 81~8~s the test. See our OpinionNo. O-2631. The questionpropounded by your letter,horover, la not answeredby these consirisrations, because it opp3ars Lhs impx?scmentfor which the appropriation was made so far as tho second fisoal year la concerned has not only not bean ootuollydone, but thershas bcon no oontractfor it, nor oommitmentof any funds 8v8llablo for the second year. The Board can not by the notional lrwthod of attempting to earaabrk the funds avoid th3 lzgal effeot or the lapse of the oppropriotion for the axpirodyear. This would IIO doing IndWoct- :y what cm not bo done dlreotly,and, moreover, would bs to dafoat the very purpose of the annual fonture of the approprlatlon. See our OpinionNo. O-320,wherein we aaidt
8111

answer to the three inquirlos propounded iu your request, we hold that the nppropriationeffected under Section 18 of Article 6221~ termiuateaby llaitationof SeotionA of Article VIII **of** the Constltution of the State or" Texas two years after ths effectivedate Of the Steam iloilorInspxtion Act, 8nd that whereas the moneys in tha *Stateboiler InspectionFuud* oreated thereby 8re earmarkedfor the purpom of the dot 8nd dedioated thereto, neyerthelesathey can not be expouded after the oxpir8tionor the originalappropriation without further legislatitoaction..
The principleannouncedin the Irecedingquotat5.on gomrns the situationhare, and the sponsor superintendentand worhmen on the subject Fojcct may not **be** paid for work Cone in a subsequentfiSC81 year out Of 8 precedingyear's appropriationwhere, as here, there has been no contractWh8tSOQvQrbinding, or 8ttOmptingto bind, such procodingyear's appropriation.

the plan of the yrojeotdoes not purport to bind the **United** States, neither does it purport to bind the moard of Control to complete the task begun. It is optional with the Hoard, and thero is nothing which Could be hold.

to be an oxpendituro,commitmentor charge whataoover upon the appropriationfor the first fiscal year. ” fan. &wry laox - po@ 6

of the funas **rendmIng at**  the end of that year. This 1~ in&spensable to avolil a reversion thereof.

ATTORNfiT

GiXNERAL

OF TEXAS

BY

OS-MB