April 14. 1939 

Honorable E. H. Thornton, Jr. 

Chairman. Appropriations Committee 

Hous~e of Representatives 

Forty-sixth Legislature 

Austin, Texas 

., 

Dear Sir: 

t Opinibn~No. O-632 

ore: ,Authority of Legislatur,e to appropriate money in payment of 

deficiency warrant issued by 

.‘. Governor for purpose of erecting a major building on the campus of Texas institution of high- 

‘er learning. 

By your letter of April 13, 1939. you request of this Department an opinion upon the following question: 

~-Under the Constitution and laws of this State, particular reference being made to Article 3. Sections 44 and 49 of 

the Constitution and Article 4351 of the Revised Civil Statutes 

‘of this State, does the Legislature have the authority to appropriate money for the payment of a deficiency warrant issued 

by the Governor for the purpose of erecting a major building 

on the campus of one of the institutions of higher learning of 

this state 7” 

Your request does not seek to have ~this Department render an 

opinion upon the validity of a particular enactment and does not convey 

to the Department information of the particular circumstances surrounding the issuance of such deficiency warrant. so that .the Department must, 

in reply to your question, necessarily be content ‘to point out to you the 

general rulers governing such matters. 

,Article 3, Section 44 of the Constitution of the State of Texas, 

provides as follows: 

“The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, 

not provided for in this Constitution, but shall not grant extra 

compensation to any officer, agent, servant, or public contractors, 
Hon. E. H. Thornton, Jr.. April 14. 1939, Page 2 

after such public service shall have been performed or contract entered into, for the performance of the same; nor 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 pre-existing law; nor employ any one in the name of the 

State. unless authorized bye pre-existing law.” 

Article 3. Section 49 of the Constitution of the State of Texas. 

provides as follows: 

“No debt 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 pay 

existing debt; and the debt created to supply deficiencies in 

the revenue, shall never exceed in the aggregate at any one 

time two hundred thousand dollars.” 

It is settled law that Section 44 of Article 3 prohibits the Leg- 

~islature from appropriating State money to any~person or corporation 

on any claim, unless, at the very time the appropriation is made. there 

is alreadyiinlomrsome pre-existing vaIid law constituting the claim 

the appropriation is made to pay a legal and valid obligation against the 

State. And by legal obligation is meant such obligation as would be enforced by the courts against the State, in the event the Legislature should 

permit the State to be sued. Fort Worth Cavalry Club vs- Sheppard 

(Supreme Court), 83 S. W. (2) 660. 

Public offices and officers being peculiar ,creatures of law, 

their powers and duties are necessarily &fined and limited by law. It 

follows that a public officer has authority to make for the State only such 

contracts as he is expressly or impliedly authorized by law to make. If, 

therefore, a public officer makes a contract purporting to bind the State, 

and in making such contract, he exceeds the limits of the authority conferred upon him by law, the contract is void and does not give rise to 

such an obligation as would form the basis of a judgment against the,State 

in event the State should permit itself to be sued. 

Illustrations of the applications of the above principles are to 

be found in many cases passed upon by the courts of this State. In the 

caste of Fort Worth Cavalry Club vs. Sheppard, cited supra. the Supreme 

Court, appIying the principles above set out, held that the Adjutant Genera1 of the State was without express or implied authority to contract for 

a five yearlease~ to -the State of realty to be used as an aimory. and that. 

therefore,~ instruments issued by the Adjutant General in lieu of deficiency 

warrants% payment~~ofthe rent for such-property,‘approved by the Gove~rnor, we.ze..iavalid. aiace the c’ontract which was’ the.basis thereof was 

void,.and the Le+gislature was therefore unauthorized to appropriate money 

: in payment there’of, 
-. 

h 

_- _ 

Hon. E. H. Thornton, Jr., April 14, 1939. Page 3. 

In the case of State vs. Haldeman, 163 SW. 1020, (writ refused). 

the Legislature had appropriated $47,500 for the construction of two buildings and. after the contract was let. changes made in the plans and specifications resulted in the contractor furnishing at his own expense material 

and labor amounting to approximately $13.000 not included in the original 

contract. The Thirty-first Legislature appropriated $11,000 to pay the 

claim, providing that it should first be established by suit against the State. 

Suit having been brought. the Court of Civil Appeals held that the amount 

specified for the buildings in the original Act was a limitation upon the 

power of the officers of the State to contract for the construction of those 

buildings, that the contract above such appropriation was invalid, and 

therefore not a lawful claim against the State. 

of course., it is clear that if the officer was originally without. 

authority to make the contract, the act of the Governor in approving the. 

deficiency warrant is wholly ineffective to impart any validity to such unauthorized contract. 

Your attention is likewise directed to the fact that, in any event, 

the authority of the Governor is limited, both by the cons’titutional provision and by the provisions of Article 4351, Revised Statutes, 1925, to the 

approval of deficiency warrants to an amount not exceeding $200,000. and 

such deficiency warrants as may be approved above the amount of. $200. - 

000 are invalid both by the constitutional provision and by the provisions 

of Article 4351, Revised Statutes. 

lows : 

You are,therefore. advised in answer to your question as folIf authority, express or implied, to contract for the erection of 

~the building to which you refer was not conferred by some pre-existing 

valid law, the officers of the State contracting for the erection of such 

building acted in excess of their authority. The contract, under such circumstances, did not constitute the making of a legal and valid obligation 

against the State. The act of the governor in approving the issuance of a 

deficiency warrant in payment of suc~h contract could not render that contract valid. The contract out of which the claim’arose. therefore, not having been provided for by pre-existing law, the Legislature. by virtue of the 

pr~ovisions of Section 44 of Article 3 of the Constitution. is without authority to appropriate money of the State in payment of such deficiency warrant. 

In any event, if the Governor had approved deficiency warrants 

to the amount of $200.000 at the time this deficiency warrant was approved 

~by him, under the provisions of Article 4351. and under the provisions of 

the Constitution, such warrant is invalid. 

,We trust that this may answer your inquiry. If. however, it is 

not sufficient for your purposes, and if you desire an opinion of the Department directed to the determination of the validity of a particular appropriation which you may now have under consideration, we would suggest that 
.-.- 

Hon. E. H. Thornton, Jr., April 14, 1939. Page 4. 

you frame your question so as to advise us of all of the circumstances 

attending and surrounding the making of the contract upon which the deficiency warrant was based and the issuance and approval of such deficiency warrant. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ R. W. Fairchild 

R. W. Fairchild 

Assistant 

RWF:PBP:cm 

APPROVED: 

js/ Gerald c. M~IIII 

-ATTOm EY GENERAL OF TEXAS 

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