.lxa*wiF(D;EalLD0% wLw.mrXN AWSTYN. TEXAS 78711

*T-xwmzNKYa3ncNRRAL November 13, 1970

Hon. John C. White Opinion No. M- 729 Commlssloner Texas Department of Agriculture Re: Whether the Texas DepartP. 0. DrawerBB ment of Agriculture may Austin, Texas 78711. legally enter Into a certain contract for payment of amonthly consultaDearMr. White: tlon fee.

Your recent letter requesting the opinion of this office concerning the referenced matter states as followsr

“TheTexas Department of Agriculture respectfully solicits your opinion onwhether or not the State of Texas can legally pay for marketing services of a former employee whois working in and consequently temporarily residing in Europe.

“It is myunderstanding that wecan because the scope of our market development work is broad based and covers services andactivities onbehalf of our farmers in domestic andforeign markets. Wehave, therefore, already done extensive work in Latln America andhave mademarket surveys In Asia: Onetrade showhas been attended in Europe.

“The former employee at present is located in Bologna, Italy, studying International marketing. Hewill be free to travel throughout Europe most of the time during the next twelve months.

“Hehas agreed to represent t,heTexas Department of Agriculture at trade shows, makesurveys to determine market potential for Texas products, study policy andprocedures for exporting these products, conduct product promotion and otherwise assist Texas shippers by providing them,with reports andInformatlon~ on a regular basis. ?-le has further agreed to report his progress in writing to this department each monthandprovide detailed reports on specially assigned projects. -3539-Hon. John C.White, page 2 (M-729)

Hewill workunder the Immediate supervlsion of the Texas Department of Agriculture Marketing Director. "The Texas Department bf Agriculture is desirous of entering Into a contract with this former employee andare agreeable to paying himamonthly consultation fee. "We,wlll appreclate'your Immediate action on this matterr"~

.~Theduties of the Commissioner of Agriculture are set forth 1n:Artlcle 51, Vernon's Civil Statutes. That Article provides, in part; as follows~

"The duties of the commissioner shall be as followsr: 11 .,~

. .:', 'i5,',Heshall Investigate andreport upon the question. of broadening,the market and of Increasing the demandfor cotton goods andall other agrlcultural andhorticultural products, both In t$e United States andin foreign countries.

. . . Line Item 9 of the current legislative approprlatlon for the Department of Agriculture, which Is found in Section 1 of Article III of House Bill 2, Acts 61st Leg., 2ndC.S. 1969 (General Appropriation Act for tha biennium ending August 31, 1971), provides, In part, as follows:

For expanding the marketing outlets for Te~a~~~gricultural~commod,lties,

. . . for salaries, wages, travel, other expenses and contingencies

. . .,
provides: $1,882,213 $2,066,487 &U.B."

Article,III,,Section 44 of the Constitution of Texas
"The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation to any officer, agent, servant, or public. -3540-. .

Hon. John C. White, page 3 (M-729)

contractors, after such public service shall have been performed or contractentered into,. for ~the performance of the same; nor grant, by appropriation or otherwise, any amountof moneyout of the Treasury_ of the State, to any lnd,ividual, ona claim, real or pretended, whenthe sames'hall not have been provided for by pre-existing law; nor employ any one in the nameof the State, unless authorized by pre-existing law." (Emphasis added.)

Theforegoing constitutional provision prohibits approprlations by the Legislature unless there Is in force a preexisting law to support such appropriation. Austin National Bank v. Sheppard, 123Tex. 272, 71 S.W.2d 242 (19341.

Weare of the opinion that Section 5 of Article 51, Vernon's Civil Statutes, which requires the Commissioner of Agriculture to investigate andreport upon the question of broadening the market and of Increasing the demand'sf agrlcul&al andhorticultural products, both in the United, States and foreign countries, constitutes a valid pre-existing law to support the appropriation for salaries, wages, travel and other expenses and contingencies In connection with expanding the marketing outlets for Texas agricultural commodities.

Unless restricted or limited by the Constitution, the State ha&the right to enter Into contracts. Texas National GuardArmory Board v. McGraw, 132Tex. 613, 126 S.W.23 b2/ (1939)

.

The'power of the State to contract exists as an Incident to the general right of sovereignty andthe State through the lnstrumentallty of its various departments to which contractual powers have been delegated by the Legislature mayenter into contracts not prohibited by law andappropriate to'the proper exercise of the State's contractual powers. ~262S.W. 722 (1924). Scribner's Sons v. Marrs, 114Tex. 11,

In view of the foregoing authorities, andunder the facts and circumstances presented, weare of the opinion that Section 5 of Article 51, Vernon's Civil Statutes, grants to the Commlssloner of Agriculture the authority to enter into a contract with an individual to perform certain market surveys i,nEurope and compensate such individual for such services bywayof amonthly consulta$ion fee. SUMMARY TheCommissioner of Agriculture, pursuant to Article 51, Vernon's,Clvil Statutes, hs(sthe authority -3541-Hon. John C.White, page 4 (M-729,)

under,the facts and circumstances presented to

a contract to pay amonthly consultation he.rendering of various marketing surveys andstudies.to an lndlyldual temporarily residing In Eur.ope.

Prepared d$..Pa.tBailey Assistant Att&i&y General neral of Texas

APPROVED: OPINIONCOMMITTEE Kerns Taybr,' Chairman W.E. Allen, Co-Chairman Roland Allen BenHarrison Arthur Sandlln JohnReeves MEADE F. GRIFFIN Staff Legal Assistant ALFREDWALKER Executive Assistant NOLA WHITE First Assistant

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