. - 

Honorable T. 0. Walton, President, 

Agricultural & Mechanical College 

of Texas 

College Station, Texas 

Opinion No. O-1915 

Dear Sir: Re: Right of materlalmen who 

furnish material for construction of public buildIll@. 

Your letter of January 30, 1940, making inquiry 

of this department with respect to the claim of certain 

parties for material furnished In connection with the'construction of certain buildings at your institution, received, and the following quotation Is taken therefrom: 

"On November 7, 1938 a contract was executed by and between Curtis Eleotrlcal Company, 

(Charles E. Curtis, President) of Austin, Texas, a corporation created and operating under 

the State laws of the State of Texas, party of 

the first part and the Agricultural and Mechanlcal College of Texas of College Station, Texas, 

acting by and through Its Board of Directors, 

party>-of the second part. This Is a contract 

for furnishing and Installing electrical wiring 

and equipment in twelve dormitory buildings and 

one dining hall building on the campus of the 

A. & M. College at College Station, Texas, work 

on which was substantially completed in Seotemher, 1939. 

"We have just received a letter from The 

Okonite Company of Chicago, Illinois, notifying 

us of their claim against the Austin Electrical 

Supply Company for materials furnished the Curtis Electrical Company for this project. We attach a copy of The Okonlte Company's letter covering this claim in which it quotes a telegram 

from the Curtis Electrical Company by Charles 

E. Curtis, President, guaranteeing payment of 

the materials sold to the Austin Electrical Supply Company for the A. & M. College project. 
Honorable T. 0. Walton, President, page 2 (No. O-1915) 

You will note that The Okonlte Company flies 

Its claim against the Curtis Electrical Company 

for the unpaid account against the Austin Electrical Supply Company for materials furnished 

the former for the A. & M. College project. We 

also attach a copy of the contract provisions 

relating to liens and claims. 

"Will you please advise us at the earliest 

possible moment whether or not we should withhold payment to the Curtis Electrical Company 

for the final estimate on this contract until 

the Curtis Electrical Company furnishes the College a release or waiver of lien or a receipt 

for payment in full from The Okonite Company for 

all materials furnished for the project covered 

by the contract. We know, of course, that where 

claims are filed with the College against the 

contractor, that payment of sufficient funds to 

Dover the alalms must be withheld unti,l the 

claims have been satisfied, but we do not how 

whether this applies to claims filed against 

contractors for materials furnished to the contra&or through a third party as appears to be 

the aase in this Instance. 

"We should also like to have you advise us 

whether or not, before making final settlement 

to the contraotor on a contract of this type, 

we should require the contractor to furnish us 

with a certlfioate from the County Clerk of 

.this County to the effect that no liens or 

claims have been filed in the County Clerk's 

Office against the contractor or the College 

for materials and/or labor used in conneotlon 

with the contract." 

The letter which you enclose from The Okonlte Company to you is as follows: 

"Confirming our telephone advice we attach copy of our telegram giving $2452.55 as 

the total claim against the Austin Electrical 

Supply Company due Hazard'.~Insulated Wire Works, 

Division of The Okonite Company, and $92.18 due 

The Okonite Company. 

"The facts in the case are as follows: 
Honorable T. 0. Walton, President, page 3 (No. O-1915) 

"On May 20, 1939 we received through our 

Dallas office an order from the Austin Electrical Supply Company for electrical wires and 

cables to be used in connection with some work 

being done'at your University by the Curtis~ 

Electrical Co. We advised our Dallas office 

that we would have to have an up-to-date flnanala1 statement from the Austin Electrical Supply 

Company before we would ship the material: 

"On-May 22, 1939, we received the following 

telegram from the Curtis Electrloal Co.: 

"RECARDINO FINANCIAL STATEMENT OF TRE AUSTIN 

ELECTRICAL SUPPLY COMPANY TIDIY STATE THIS CAN BE 

SUPPLIED WITHINP'EW DAYS. WB BUST HAVE WIRE ‘A&M 

COLLEGE IMMEDIATELYTHEREFORE WE WILL QUARARTEE 

PAYBENT WITHIN CASH DISCOUNT PERIOD. SEE OUR RATINO LATESTDUN& BRADSTREETBOOK. MAKE SHIPMENT 

TODAY NOTIFY BY WESTERN UNION IMMEDIATELY. 

"&I 'the 

CURTIS ELECTRICAL COMPANY 

BY CHAS. E. CURTIS, PRESIDENT" 

strength of the guarantee oontained In _ - . the roregolng telegram we shlpped the merchandise 

direct to your University and charged same to the 

account of the Austin Electrical Supply Company. 

"We oompleted delivery of the entire order, 

and the unpaid balance at this time Is $2544.73 

which includes $2452.55 due the Hazard Insulated 

Wire Works, Division of The Okonite Company, and 

$92.18 due The Okonite Company. 

"You should understand that Hazard Insulated 

Wire Works is simply a division of The Okonite 

Company and not a separate oompany or corporation. 

'We have not been able to oolleot this balance from either the Austin Electrioal Supply ComPang or Curtis Electrical Co. and we learned last 

Saturday morning that the Curtis Electrical Co. 

has furnished your archlteats final estimates 

on this job with receipts or waivers covering 

all materials, including a waiver from the Austin Eleotrloal Supply Company. 

"We believe that with the Information we 
- . 

Honorable T. 0. W&ton, President, page 4 (No. O-1915) 

have given you, you will be in a position to 

demand that the Curtis Electrical Co. either 

furnish you a waiver or reoelpt from us, or 

give you an order to pay us our balanoe. We 

have never heard of any dispute as to this 

balance and we oannot understand why the Curtis Eleotrloal Co. or the Austin Eleotrloal 

Supply Company have not paid this aooount in 

full long ago, slnoe Mr. chas. E. Curtis, from 

the Information that he personally has given us, 

Is a partner in the Austin Electrical Supply 

Company and Is president of the Curtis Electrical Co. 

"We trust therefore that you will withhold 

payment from the Curtis Electrical Co. In the 

sum of $2544.73 until you are provided with a 

receipt or release direct from us, or until you 

reoeive an order from the Curtis Electrical Co. 

directing you to pay that sum of money to us. 

Unless the matter Is handled In that way, we do 

not feel secure in the payment of our aooount." 

You likewise enclosed the following excerpt from 

your contract with the Curtis Electriaal Company for the 

construction of the electrical work on the buildings Into 

which the 

usedr 

ment 

material furnished by The Okonlte Company was 

"EXCERPT FROM THE CONTRACT DATED NOV. 

7, 1938, BETWEEN THE CURTIS ELECTRICAL COMPANY AND THE A. & M. COLLEGE 

OF TEXAS FOR ELECTRICAL WORE ON TWELVE 

DORMITORIES AND ONE DINING HALL 

"It being understood that the final payshall be made within ten days after this 

oontract is oompletely finished, wlth.the exaeption of ten per centum of total aontract 

price which (at option of Owner.,,.) shall be 

held for 30 days, for protection of labor, as 

provided by law; provided, that in each of the 

said cases the Architect shall oertify that all 

the work upon the performance of whioh the payment Is to beoome due has been done to their 

satisfaotion; provided, further, that before 

each payment, if required, the Contractor.... 

shall give the Architect good and suffloient 

pv*rlence that the premises are free from all 
Honorable T. 0. Walton, President, page 5 (No. O-1915) 

liens and claims chargeable to the sald.Contractor...., and, further, that If at any time there 

shall be any lien or claim for which, if established, the Owner . . ..or the said premises might 

be made liable, and which would be chargeable ~to 

the said Contractor...., the Owner....shall have 

the right to retain out of any payment then due 

or thereafter to become due, an amount sufficient 

to completely Indemnify it against such lien or 

claim...., until the claim shall be effectually 

satisfied, discharged or cancelled. And should 

there prove to be any such claim....after all 

payments are made, the Contractor....shall refund to the Owner . . ..a11 moneys that the latter 

may be compelled to pay in discharging any lien 

on said premises made obligatory In consequence 

of the former's default. ,.And It Is further understood and agreed that the Contractor....shall 

and will pay off and satisfy all claims of,subcontractors or others for labor or material fur-' 

nished upon said building and which may be found 

to be justly due and owing, whether or not the 

same can be established as a lien against said 

property for which said property or the Owner... 

would be liable; it being the true Intent and: 

meaning hereof that the Contractor....shall pay, 

off and satisfy all bills incurred for labor,and 

material In the erection of said building and 

found to be justly due and owing, whether estab- 

?Hshed as liens or not." (Underscoring ours) 

It Is made very plain from the foregoing that the 

material furnished by The Okonite Company was furnished to' 

the contraator and used In the buildings aovered by its.oontract. The telegram of the Curtis Electrical Company to The 

Okonlte Company is certainly sufficient to make It liable for 

the payment of this material. When this fact Is .taken in connection with your contraot with the Curtis Electrical Company, 

and especially the underscored portion thereof) we have no' 

hesitancy in advising you that you should wlthhold'payment to 

the .Curtis Electrical Company of the final estimates on this 

contract until the Curtis Electrical Company furnishes you 

a release, or a receipt of payment in full from The.Okon1t.e 

Company for its material furnished for the projeot .covered 

by the oontract. 

Article 5472a provides: 

"That any person, firm or corporation, or 
Honorable T. 0. Walton, President, page 6 (No. O-1915) 

trust estate, furnishing any material, apparatus, fixtures, machinery or labor to any contractor for any public improvements $n this 

State, shall have a lien on the moneys, or 

bonds, 'or warrants, due or to beoome due to 

such contraotors for such lmpr+vements; provided, such person, firm, corporation, or 

stock assoolatlon, shall, before any payment 

is made to suoh oontraotor, notify in writing 

the officials of the State, county, town or 

municipality whose duty it Is to pay such contractor of his olalm." 

Article 5472b provides: 

"That no public official, when so notified 

in writing, shall pay all of said moneys, bonds 

or warrants, due said contractor, but shall re- ,. 

taln enough of said moneys, bonds ore warrants 

to pay said alaim, In case It Is establish.ed by, 

judgment In a court of proper jurisdiction." 

The foregoing Articles govern the fixing of claims 

for materials furnished in the construction of permanent lmprovements in this State. It has been held that these statutes must be given a liberal and not a strict oonstruotlon. 

smith v. Texas Co., 53 S. W. (2) 774. 

Certainly, these statutes under the above rule of 

oonstruotlon are sufficient to protect any person, firm or 

corporation who furnished material to a contractor under alraumstanoes suoh as these here under consideration. Wilson vs. 

Hlnton et ux, 1.16 S. W. (2) 365. These statutes were lntended to give additional security to the party furnishing the 

material, and should be construed to accomplish such end. 

As to the second question you ask you are advised 

that It Is the opinion of this department that you should not 

require the contractor to furnish you with a certificate from 

then County Clerk of your county to the effect that no liens 

or claims have been filed in the County Clerk's office against 

the contraotor or the college for material and labor furnished in oonneotion with the contract. The contract was for a 

public Improvement, and a party who furnishes material or 

labor would have to proceed under the above Articles to seoure a lien on the funds of the contractor. And there is no 

provision in said statutes providing for the filing with the 

County Clerk of their claims. Furthermore, it has been 
Honorable T. 0. Walton, President, Page 7 (No. O-1915) 

specifically held that no lien can be fixed against public 

property. 29 C. J. 483, &! 22, from which we quote, sustains 

this view: 

"PUBLIC PROPERTY .--Upon grounds of necessity and public polioy, buildings, grounds, lmprovements and works used for and devoted to 

public purposes are not within the operation 

of nor subject to mechanics' or materialmen's 

liens, unless, of course, they are expressly 

made subject thereto by law. Indeed the Constitution provides that 

"'The property of oounties, 

cities and towns, owned and held 

only for public purposes, such as 

publia buildings and the sites 

therefor. Fire engines and the 

furniture thereof, and all property 

used, or Intended for extlngulshlng fires, publla grounds and all 

other property devoted exoluslvely to the use and benefit of the 

public shall be exempt from forced 

sale and fran taxation, . . .I 

"Accordingly, It has been heid that a mechanic's lien cannot be fixed on a aourthouse 

and public square, a city hall, a school building, a lot In a cemetery dedicated and held for 

sepulture, or public works such as highways; 

,streets and pipe lines s 0 + *" 

Since there can be no lien created against public 

property, we can see no reason for requiring a certificate 

of the contractor that~ no such liens have been recorded before payment is made to him, 

Trusting that the above answers your questiona, 

we are 

Very truly yours, 

APPROVED FEB 9, 1940 ATTORREY GENERAL OF TEXAS 

Grover Sellers 

Grover Sellers 

Assistant