# The Attorney General of Texas

March 24, 1981 MARK WHITE Attorney General

Honorable MikeDriscoll Harris County Attorney 1001Preston, Suite 634 Houston, Texas 77002 Opinion No. MW-314 Re: Clarification of Attorney General Opinion MW-290 with respect to encumbrance for rental payments on Center Pavilion Hospital Project Dear Mr.Driscoll: You ask three questions seeking clarification of Attorney General Opinion MW-290 (1981). That opinion concluded that Harris County could spend bond proceeds and other county funds to improve the Center Pavilion Hospital building which the county had leased. Wealso answered several questions regarding the county auditor’s responsibility with respect to financial transactions arising from the lease, for example, payment ofrent. You ask for clarification of the following sentences in Attorney General Opinion MW-290:

Section 3 of the lease agreement provides that the leasehold estate shall commence asofthe date ofthe execution of the lease. The encumbrance for any rent payment should be set upas of that date. (Your emphasis). You inform usthat no rent wasdue in 1980,and that annual rentals in varying amounts are due, subject to the year-by-year budget appropriation by the commissioners court in 1981and the following years. The total rent due over the life ofthe lease has been estimated to be $29,592,100. Youfirst ask:

L Is the opinion to be interpreted to mean that the rent payment encumbrance is to be (a) the amount of the yeal-by-year appropriation budgeted by [the1 commissioners court (estimated to be approximately $1,400,000); or (b) the entire rental for the lease life (approximately $29,592,100)?

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The rent payment encumbrance isthe amount of the year-by-year appropriation budgeted by the commissioners court. Clearly, with a year-to-year lease such as that executed by Harris County and the Harris County Hospital Authority, anencumbrance for the entire rental for the projected lease life is inappropriate. The commissioners court may withdraw from the lease at the end of any fiscal year by falling to appropriate. Younext ask:

2. For the year 1980,when no rent waspayable, should the encumbrance, which will be carried forward, be zero or $29,592,100? For the year 1980,whennorent waspayable, the encumbrance wouldbezero. Youfinally ask.

3. For the year 1981,the first year of the rental payment liability, should the encumbrance be approximately $1,379,500 (the first year’s estimated rental) or $29,592,100? If the first amount ($1,379,500), should a similar scheduled annual basic rental amount be freshly encumbered year-by-year, pursuant to appropriation of [the] commissioners court? If the latter amount, the unexpended portion would be carried forward annually asanew encumbrance. Again, following the reasoning in our answer to your first question, the 1981 encumbrance should be for the first year’s estimated rental and the scheduled annual rental amount should be freshly encumbered year-by-year. Due to the nature of the leasehold estate herein involved there isno encumbrance lasting beyond ayear. In Attorney General Opinion MW-290 we used the term “encumbrance” in the sense that the leasehold estate was encumbered by aneed to meet arental payment. The encumbrance, however, can only ba consistent with the terms of the lease. Therefore, ayear-to-year lease clearly dictates ayear-to-year encumbrance. SUMMARY The encumbrance for rental payments for the Harris County lease on the Center Pavilion Hospital isthe amount ofthe year by-year appropriation budgeted by the commissioners court. For the year 1980,when no rent waspayable, the encumbrance would be zero. For the year 1981,the first year of rental payment liability, the encumbrance should be for the first year’s estimated rentaL The scheduled annual rental amount should be freshly encumbered year-by-year.

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MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAYIII Executive Assistant Attorney General Prepared bySusan L.Garrison Assistant Attorney General APPROVED: OPINION COMMlTTEE Susan L.Garrison, Chairman Jon Bible Rick Gilpin Susan Voss

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