Honorable Frsnk C. Clemens, C.“.airman 

Houston Light .Guard Emory Eoard of Control', 

Eouston, Texas ‘5 

Eear 13. Clemens : / 

‘--* . _...b - -., .~ 

Opinion :%To. 0-24~7 

\ Re 

: Texas National Guard 

.irciory Board -- S. 3. 

427, 46th Legislature 

-- General Decartmental Appropriation Bill 

-- hepair, upkeep and 

maintenance IIouston 

Life Guard Armory -- 

Kanner of Expending. 

This will acknoaledge receipt of your letter 

of ?!ay 11, 1940, written on behelf of yourself as act-. 

ing Chairman, Eouston Light Guard Armory Board of Control, and on behalf of i.r. C. 1;. Ninon, Secretary Texas 

National Guard Armory Board, i!rith respect to t:?e expenditure of item 6 of the maintenance and miscellaneous 

zppropriation for Texas Xational Guard Armory Board 

contained in the biennial appropriation of the 46th 

Legislature, S. B. 30. 427, in :;hicti you propound the 

following questions: 

“1 * Is the Texas Xational Guard Armory 

Board authorized to pay out of the above mentioned 

approprietion for the costs of maintenence, repair, 

insurance and operating expenses of said Armory when 

purchases are contracted for under the approval and 

management OS the Armory Board of Control but not 

that of the Stste Board of Control? 

“2 . If question #l is ansvcered in the negative, is it necessary that such purchases be contracted 

for under the aTprova1 and management of the State Board 

of Control? 

,;3. If question’*%‘1 is ansv:ered~ in the negative, whzt duty, authority CR’ function? if any, must 

the Armory Boerd of Control e;:ercise ?nth respect to 

such purchases? 

“4. Kay the exgenditres for t%e months of 

September and October be paid out of the above mentioned appropriation and, if so, ii&t” si;o;:ing s:hould be 

ma de and v;ha t Board’s a_n~roval is necessary before 

vouchering for payment? 
Hon. Prank C. Clem ens - Page 2 

. . . . 

probably be sufficient, but we would like to be certain 

with reference to your opinion as to which Roard Ml1 

have the duty of renewing or rewriting suchinsurance 

and as to vrhat the proper procedure would be in order 

that the premium may be promptly paid. 

I I 

"6. ‘Yhen policies of insurance are to. be written, will it be proper to write and pay premiums out of 

such appropria~tion or similar .appropriations for a term 

that extends: 

“(a) Beyond the State fiscal year 

to which the appropriation applies; 

l’(b) Beyond the State biennium for 

which the applicable appropriation is 

available. 

"7. Kay the Armory 3oard pay to Houston Light 

Guard Veterans Association, Inc., as rental of the Armory 

for the months of September and October out of Item #3 of 

its appropriations from the last Legislature (Special 

Laws, 46th Leg. p. 148) sufficient, money to pay said expenses on condition that said Association will pay the expenses’ 16th the money so received?” 

iIouse Concurrent Resolution No. 3.0 of the lt6th 

Legislature on behalf of the State accepts certain property in the City of Eouston donated, with certain’reservations, by the Houston Light Guard Veterans Association, 

Inc. for armory purposes; the resolution furthermore sets 

up what is knoiin as the Rouston Light Guard Armory Board 

of Control, i-;ith certain defined powers and duties. The 

d.nty of the Texas National Guard krmory Roard, as set 

forth in the resolution, is “to have charge of and provide for the maintenance, repair, insurance and operating 

expenses of the said armory, and to keep the said property I 

in a good and fit condition for occupancy in use as an 

armory by the Eouston Light Guara., now designated as Company G, 143d Infantry, Texss Xational Guard, and its 

successor military cor~panies.‘1 

Item 6 of the Kaintenance and Miscellaneous 

Appropriation for Texas Mational Guard izmory Board, 

as made by the 46th LegisLg,ture, is as follovis: 

"6. Repsi-r, tpkeep and maintenance 

of Armory known as Houston Light Guard 

Armory, as contemplaged by Youse Concurrent Resolution 30 of the 46th Legislature; provided that this appropriation 

is not transferable*f--YW :j1,140.00 for 

the fiscal years ending’ August 31, 1940;. 

and Jugust 31, 1941, respectively. _ 
Hon. Frank C. Clemens - Page 3: 

scribing the duties of the Board of Control provides: 

“The Board of’ Control shall purchase all the supplies used by each 

Department of the State Government, 

including the State Prison System, 

and each eleenosynary institution, 

Rorrral school, Agricultural and L:echanical Collage, University of Texas, 

and each and all other State Schools 

or Departments of the State Government heretofore or hereafter created. 

Such supplies to include furniture 

and fixtures, .technicel instruments 

.' and books, and all other things required by the different departments 

or institutions, except strictly perishable goods.” 

The powers of the 3oard of Control as thus prescribed are broad and comprehensive and confer upon the 

Board the power and duty to purchase all the supplies used 

by each department of the State government, except such 

supplies as are specially excepted in subsequent Articles, 

and the Te;ras National Guard Armory Doard comes within the 

purview of this statute, 

F’rom a consideration of the statute and the wellestablished policy of the State to constitute the Zoard of 

Control as its purchasing agent for institutional and departmental supplies for the Stcte, we beg to advise: 

Ve are of the %opinion the item of insurance 

does not come within the term %uppliesll contained in 

Article 634. The precise point seems to have been determined by the Supreme Court of Montana in Filler Insurance Agency vs. Porter, 20 Pac. (2) 643, where it 

is said: 

“This court in the case of New York 

Life Insurance Co. .v. Deer Lodge County, 

43 Kant. 243, 115 P. 911, 912, in considering the nature of a policy of fire insurance, da: .I 'The policies are simply 

contracts of in>er:nity against loss (by 

fire), entered i3to between the corporations and the assured, for a consideration paid by the la$ter. These contracts 

are not articles of commerce in any proper-meaning of the word. They are not 

subjects of trade.and,barter offered in 

the market as something having an existence and value independent of the parties 

to them. They are not*commoditiee to be 

shipped or fori~~arded from one state to _ 

. _ 
Hon. Prank C. Clemens - Page l+ 

are like other parsonal contracts between 

parties which are completed by their signature and the transfer of the consideration.' 

’ ‘&he term ‘supplies1 has not been 

hold to include everything that is furnished to the state or a municipality. 

In the case of “!hite v. Koore, 288 Pa. 

i,c~l~, 136 A. 218, coal for the use of a 

school house was held not to be included 

vtithin the expression ‘school supplies. t 

Again, in the case of Xilwaukee Electric 

Railway Co. v. City of Yilwaukee, 173 YLS. 

~329, 181 IT. I!. 298, electric current furnished to the city was held not to be included within the term *supplies, 1 in the 

statute requiring a contract that all supplies should ‘oe*l$t*after bids or proposals 

were received. 

If* * *vte held, that fire insurance 

policies are not included within the term 

‘supplies. t St was, therefore, unnecessary to procure bids or proposals before 

entering into the .contracts of insurance.” 

\Ie are inclined to follow the ZIontana case. 

Prom this conclusion it follows the Texas Rational Guard 

Armory Eoard? by virtue of Xouse Concurrent Resolution 

No. 30 creating it, is charged with the duty of providing the insurance, and there being no strtute to the 

contrary, it is charged‘with the further duty of contracting for it. 

The Armory Board, however, would have no authority to create such a charge beyond the provisions of the 

Appropriation Act; that is to say, beyond the fiscal year 

to which the appropriation applies, and in no event beyond the biennium for which the applicable appropriation 

is available. Fort Yorth Cavalry Club v. Sheppard, 83 

s. ‘.!. (2) 6668. 

As a matter of economy it rcay be unvIi.se for the 

State to deny to its repi%sentstives the power to contract for insurance upon a-three or five year basis, but 

that is for the Legislature and not the Judicial or Administrative Departments of t+he State. 

Ye have several tines held that it is the policy 

of the State .to carry its own f?.re insurance. See Opinions 110s. O-184, O-201, O-342, O-1762 and O-2130. ‘i’his 

general policy is indicated by a legislative. resolution 

referred to in t3.e opinions. In the present case, however. House Concurrent~Resoli1t.i nn 1Jn. ?A vnl--Q + + +hn 
Hon. fisck C. Clemens - Page 5, 

duty,of the Texas National Guard 2rmory Zoard and its 

successors "to nrovide for * * * insurence'1 upon said 

property donated by the ;-Iouston Life Guard Veterans Association, Inc. The general rule of State policy, resting 

as it does in resolution only, is not applicable to the 

present case, since I:ouse Concurrent Pesolution X0. 30 

evidences a contrary.?ule as to this particular property. 

TrustinS that this general reply &ill have enswered your questions satisfactorily, we are 

Very truly yours 

By /s/ Ocie Speer 

Ocie Speer 

Assistant 

APPPOED cJlJ-EX 14, 1940 

/s/ Gerald C. Kann 

ATTOl?XEY GEKQ?AL OF TEAS 

OS-5R:jrb . ~:~PROVXD OPIXI OX CO;I.IIT?EE 

BY DJB, Chairman