## THEATI-ORNEY GENERAL OFTEXAS

October 31, 

### 1957

Hon. Robert S. Calvert Corntroller f of PublicAccounts Cap tol Station Austin, Texas OpinionNo. WW-292 Re: Whether the Comptrollerhas the legal authority to issue a warrant to reimburse the El Paso County Water ImprovementDistrTct No. 1 for funds expended in the prosecutionof the case of Texas
. New Mexico in the ,, United States&preme Court. Dear Mr. Calvert:

You have requested our opinion in answer to the following question:

"Do I have ,authorityto issuemy warrant to reimburse the El Paso County Water Improvement District No. 1 for funds expended in the prosecution of the ease of Texas vs New Mexico, U. S. Supreme Court?* Your request attaches claimvoucher in favor of El Paso CountyWater ImprovementDistrictNo, 1 of El Paso Texas, coverin the period from October 25, 

### 1951 to and includingBay 

### 31 1955 The items contained in the claim voucher consist mainly 03 telephone calls, travel expenses, and fees for professional engineering servicesallegedly payable out of funds appropriatedby House Bill 546,Acts 53rd Leg., 

### 1953,Ch. 220, p. 

### 577; House Bill 140, Acts 54th Leg., 

### 1955 Ch. 

### 519,p. 

### 1518;and House Bill 

### 133,Acts 55th Leg., 

### 1957,Ch. 

### 385,p. 1071.

House Bill 5k6,Acts 53rd Leg., 1953, Ch. 220, p. 577, is in part as follows:

"Section 1. There is hereby appropriated from moneys in the General Revenuenot heretofore appropriated Thirty Thousand Dollars ($30,000)to the Governor to be disbursed by him to defray the expenses incurred in the prosecutionof the suit.

. -

Hon. Robert S. Calvert,page 2 

### (W-W-292)

by the State of Texas against the State of New Mexico for the enforcement of the Rio Grande Compact now pending in the Supreme Court of the United States. Wet. 2. None of the moneyhereby appropriated is to be used for the payment of the fee of any attorneywho may be employed to assist in this case. "Sec. 

### 3. The fact that themoney appropriated by thisAct is needed immediately to defray the expenses of the suit by the State of Texas against theState of New Mexico to enforce the Rio Grande Compact creates an emergency. . . ** House Bill 140, Acts 54th Leg., 

### 1955,Ch. 519, p. 

### 1518,is in,

part as follows: "2. To defray the expenses incurred in the prosecution of the suit by the State of Texas against the State of New Mexico to enforce the Rio Grande Compact, such expensesnot to include attorneys fees of attorneys employed in the case, there is hereby appropriated from moneys in the GeneralRevenue Fund the sum of

......... $25,OOO.* Since all of the items listed appear to have been expenses incurred prior to September 1, Bill 

### 133,Acts 55th Leg., 

### 1957,the effective date of House 1957, none of these items is payable from the appropriation contained thereinand therefore this appropriationmay be disregarded.

It affirmativelyappears from the items contained in the claimvoucher for which reimbursement is claimed that a number of the itemswere for expenses incurred prior to May 27, 

### 1953,the effective date of House Bill 546, Acts 53rd Legislature, and therefore could not be paid from the appropriation therein contained.

Moreover, it appears from the face of the claim voucher that the items of expenditure contained thereinwere paid by El Paso CountyWater ImprovementDistrictNo. l,purportedly in behalf of the State of Texas to covervarious items of expense theoretically incurred on behalf of the State of Texas by various partiesas 'expenses incurred in the prosecution of a suit by the State of Texas against the State of New Mexico to enforce the Rio Grande Compact.*Hon. Robert S. Calvert,page 3 

### (w-292)

Stated differently, the claim'againstthe State of Texas is made by the El Paso County Water ImprovementDistrict Nor 1 for the reimbursement of sums advanced by it in payment of expenses i.ncurred by third parties. Sectionkk Article III, Constitutionof Texas, provides in part as follows:

"The Legislature shallnot
. . . grant, by appropriation or otherwise, any amount of money out of the Treasury of the State, to any individual, on a claim, real or pretended,when the same shall,nothave been provided for by preexisting law;

. . .II Section 

### 49,Article III, Constitution of Texas, pro-' vides in part:

"No debts shall be createdby or on behalf of the State, except to supply casual deficiencies of revenue, repel invasion, suppress insurrection, defend the State inwar, or pav existinq g&&; . . ." Prior to the passage of House Bill 546,Acts 53rd Legislature 

### 1957 effective Bay 27, 

### 1953 there ,wasno pre-existing law which would authorize the paymentAf any claim for expenses, $curred :L ;he prosecutionof the suit of State of Texasv. State New Me c thereforeund& other than by the Attorney General of Texas, and

the provisions of both Sections 44 and 

### 49 Article III, Constitution of Texas,no debt could be incurred on behalf of the State of Texas for the payment of obligations so incurred,nor could the Legislatureappropriate any money out of the State Treasury to pay such claim.

After the effective date of House Bill 546,Acts,53rd Legislature,

### 1953,the Governor of the State of Texas was authorized to apprave the payment of any expenses incurredduring the period of two years from the effectivedate thereof for the purpose therein contained to the individualby whom the expensewas incurred from the sum so appropriated. It appears from the filed claim that the items of expense for the payment of which reimbursement is sought,were all incurredby individualsor parties other than the claimant,and we have not found any constitutional or statutoryauthoritywhich would permit El Paso CountyWater ImprovementDistrictNo, 1 to bind or obligate the State of Texas for the payment of a debt.incurredby another.

In State v* Raaland Clinic-HosDital 138 Tex. 393, 159 S.W.2d 105, 106 (1942),after referring to Sedtions44 and 49,Hon. Robert S. Calvert, page 4 (W-292)

Article III, Constitutionof Texas, the Supreme Court stated the rule as follows:

"Under these provisions it is well settled that no one has authority to make a contract binding on the State, exceptwhere he is authorized so to do by the Constitutionor a preexisting statute." The same rule of lawwas again stated in State v. Steck Co., 236 S.W.2d 866 (Civ.App.1951, error ref.).

Since there appears to be no constitutionalor statutory provision authorizingEl Paso County Water Improvement District No. 1 to incur any obligation or create any debt on behalf of the State of Texas for the benefit of a third party it is our opinion thatyou are without authority to issue any warrant to reimburse the El Paso CountyWater ImprovementDistrict No. 1 for funds expended in the prosecution of the case of State of Texasv. State of New Mexico in the United States Supreme Court.

This opinion shall not be construed as passing upon thevalidity of any claim against the State of Texasmade by any individual, firm, or corporation for reimbursementfor expenses directly incurred in the prosecutionof the suit by the State of Texas against the State of New Mexico to enforce the Rio Grande Compact by such individual,firm, or corporation. SUMMARY The Comptroller of PublicAccounts may not issue a voucher for reimbursementof El Paso County Water ImprovementDistrict No. 1 for sums advanced by it for the payment of expenses incurredby others in behalf of the State of Texas in the prosecutionof the suit of State of Texasv. State of New Mexico in the Supreme Court of the United States. Yoursvery truly, WILL WILSON Attorney Gener/a\l

of Texas 

# ,&W

C. K. Richards CKR:wb AssistantHon. Robert S. Calvert,page 5 W-292 1

APPROVED: OPINION COMMITTEE Gee, 'P.

Blackburn, Chairman J. C. Davis, Jr. John Reeves W. V. Geppert Leonard Passmore