Honorable Frsnk C. Clemens, C.“.airman

Houston Light .GuardEmory Eoard of Control', Eouston, Texas ‘5
Eear 13. Clemens: / ‘--*

. _...b- -.,.~ Opinion :%To. 

### 0-24~7
\ Re: Texas National Guard

.irciory Board -- S. 3. 427, 

### 46thLegislature

-- 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 GuardArmory Board, i!rith respect to t:?e expenditure of item 

### 6 of the maintenance andmiscellaneous zppropriation for Texas Xational GuardArmory 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 Armorywhen purchases are contracted for under the approval and management OSthe 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 managementof 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. Kaythe 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 andv;ha

t Board’s a_n~roval is necessary before vouchering for payment?Hon. Prank C. Clemens - Page 2

. . .. probably be sufficient, but wewould 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 vrhatthe proper procedure would be in order that the premiummaybe promptly paid.

I I 

### "6. ‘Yhenpolicies of insurance are to. be written, will it be proper to write andpay 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 GuardVeterans 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, moneyto 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 GuardVeterans Association, Inc. for armory purposes; the resolution furthermore sets upwhat is knoiin as the Rouston Light Guard Armory Board of Control, i-;ith certain defined powers andduties. The d.nty of the Texas National Guardkrmory 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 andfit condition for occupancy in use as an armory by the Eouston Light Guara., nowdesignated as Company G, 143d Infantry, Texss Xational Guard, andits successor military cor~panies.‘1

Item 

### 6 of the Kaintenance andMiscellaneous Appropriation for Texas Mational Guardizmory Board, as madeby the 46th LegisLg,ture, is as follovis:



### "6. Repsi-r, tpkeep and maintenance of Armory knownas Houston Light Guard Armory, as contemplaged by Youse Concurrent Resolution 

### 30of the 46th Legislature; provided that this appropriation is not transferable*f--YW :j1,140.00 for the fiscal years ending’ August 

### 31,1940;. andJugust 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 andL:echanical Collage, University of Texas, andeach and all other State Schools or Departments of the State Government heretofore or hereafter created. Such supplies to include furniture and fixtures, .technicel instruments .'andbooks, and all other things required by the different departments or institutions, except strictly perishable goods.” Thepowers 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’roma 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 comewithin 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, 20Pac. (2) 643, where it is said:

“This court in the case of NewYork

Life Insurance Co..v. Deer Lodge County, 43Kant. 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 bythe la$ter. These contracts are not articles of commerce in any proper-meaning of the word. Theyare not subjects of trade.and,barter offered in the market as something having anexistence andvalue independent of the parties to them. They are not*commoditiee to be shipped or fori~~ardedfrom 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 considera

### tion.' ’ ‘&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, 288Pa. 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, 

### 173YLS. ~329, 181 IT.I!. 298, electric current furnished to the city was held not to be included within the term *supplies, 1in the statute requiring a contract that all supplies should ‘oe*l$t*after bids or proposals were received. If* * *vteheld, 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.” \Ieare inclined to follow the ZIontanacase. Promthis conclusion it follows the Texas Rational Guard Armory Eoard? byvirtue 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.

TheArmory 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 rcaybe unvIi.sefor 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 andnot the Judicial or Administrative Departments of t+heState.

Ye have several tines held that it is the policy of the State .to carry its ownf?.re insurance. See Opinions 110s. O-184, O-201, 

### O-342,O-1762andO-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.?Avnl--Q ++ +hnHon. fisck C. Clemens - Page 

### 5,

duty,of the Texas National Guard2rmory Zoard and its successors "to nrovide for * * * insurence'1 upon said property donated by the ;-IoustonLife GuardVeterans 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, weare Very truly yours

By /s/ Ocie Speer

Ocie Speer Assistant APPPOEDcJlJ-EX

14, 1940 /s/ Gerald C. Kann ATTOl?XEY

GEKQ?ALOFTEAS OS-5R:jrb

. ~:~PROVXD OPIXIOX CO;I.IIT?EE BYDJB, Chairman