THEATI-ORNEY GENERAL 

OFTEXAS 

October 31, 1957 

Hon. Robert S. Calvert 

Corn troller 

f 

of Public Accounts 

Cap tol Station 

Austin, Texas 

Opinion No. WW-292 

Re: Whether the Comptroller has the legal 

authority to issue a warrant to reimburse the El Paso County Water Improvement DistrTct No. 1 for funds 

expended in the prosecution of 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 ,authority to issue my 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 claim voucher in favor of El 

Paso County Water Improvement District No, 1 of El Paso Texas, 

coverin the period from October 25, 1951 to and including Bay 

31 1955 The items contained in the claim voucher consist 

mainly 03 telephone calls, travel expenses, and fees for professional engineering services allegedly payable out of funds appropriated by 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 Revenue not heretofore 

appropriated Thirty Thousand Dollars ($30,000) to 

the Governor to be disbursed by him to defray the 

expenses incurred in the prosecution of 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 money hereby appropriated is to be used for the payment of the fee 

of any attorney who may be employed to assist in 

this case. 

"Sec. 3. The fact that the money appropriated by this Act is needed immediately to defray 

the expenses of the suit by the State of Texas 

against the State 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 expenses not to include 

attorneys fees of attorneys employed in the case, 

there is hereby appropriated from moneys in the 

General Revenue 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 therein and therefore this 

appropriation may be disregarded. 

It affirmatively appears from the items contained in 

the claim voucher for which reimbursement is claimed that a 

number of the items were 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 therein were 

paid by El Paso County Water Improvement District No. l,purportedly in behalf of the State of Texas to cover various items 

of expense theoretically incurred on behalf of the State of 

Texas by various parties as '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'against the State of 

Texas is made by the El Paso County Water Improvement District 

Nor 1 for the reimbursement of sums advanced by it in payment 

of expenses i.ncurred by third parties. 

Section kk Article III, Constitution of Texas, provides in part as follows: 

"The Legislature shall not . . . 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,not have been provided for by preexisting law; . . .II 

Section 49, Article III, Constitution of Texas, pro-' 

vides in part: 

"No debts shall be created by or on behalf 

of the State, except to supply casual deficiencies of revenue, repel invasion, suppress insurrection, defend the State in war, or pav existinq 

g&&; . . ." 

Prior to the passage of House Bill 546, Acts 53rd Legislature 1957 effective Bay 27, 1953 there ,was no pre-existing 

law which would authorize the payment Af any claim for expenses, 

$curred :L ;he prosecution of the suit of State of Texas v. State 

New Me c 

therefore und& 

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 Legislature appropriate 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 incurred during the 

period of two years from the effective date thereof for the purpose therein contained to the individual by whom the expense was 

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 incurred by individuals or parties 

other than the claimant, and we have not found any constitutional 

or statutory authority which would permit El Paso County Water 

Improvement District No, 1 to bind or obligate the State of Texas 

for the payment of a debt. incurred by another. 

In State v* Raaland Clinic-HosDital 138 Tex. 393, 159 

S.W.2d 105, 106 (1942), after referring to Sedtions 44 and 49, 
Hon. Robert S. Calvert, page 4 (W-292) 

Article III, Constitution of 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, except where he is authorized so to do by the Constitution or a preexisting statute." 

The same rule of law was again stated in State v. Steck Co., 

236 S.W.2d 866 (Civ.App. 1951, error ref.). 

Since there appears to be no constitutional or statutory provision authorizing El 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 that you are without authority to issue any 

warrant to reimburse the El Paso County Water Improvement District No. 1 for funds expended in the prosecution of the case 

of State of Texas v. State of New Mexico in the United States 

Supreme Court. 

This opinion shall not be construed as passing upon 

the validity of any claim against the State of Texas made by 

any individual, firm, or corporation for reimbursement for expenses directly incurred in the prosecution of 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 Public Accounts may not issue 

a voucher for reimbursement of El Paso County Water 

Improvement District No. 1 for sums advanced by it 

for the payment of expenses incurred by others in behalf of the State of Texas in the prosecution of the 

suit of State of Texas v. State of New Mexico in the 

Supreme Court of the United States. 

Yours very truly, 

WILL WILSON 

Attorney Gener/a\l of Texas 

,&W 

C. K. Richards 

CKR:wb Assistant 
Hon. 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