April 14. 1939

Honorable E. H. Thornton, Jr. Chairman. Appropriations Committee Hous~eofRepresentatives Forty-sixth Legislature Austin, Texas

., Dear Sir: t Opinibn~No. O-632 ore: ,Authority of Legislatur,e toappropriate money in payment of deficiency warrant issued by

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.Governor for purpose oferecting a major building onthe campus of Texas institution ofhigh-

‘er learning. By your letter ofApril 13, 1939.you request of this Department an opinion upon the following question:

~-Under the Constitution and laws of this State, particu

### larreference being made toArticle 3. Sections 44 and 49 of the Constitution and Article 4351 ofthe Revised Civil Statutes

‘of this State, does the Legislature have the authority toappropriate money for the payment ofa deficiency warrant issued by the Governor for the purpose of erecting a **major** building onthe campus of one ofthe institutions ofhigher learning of this state 7” Your request does not seek to have ~thisDepartment render an opinion upon the validity ofa particular enactment and does not convey to the Department information ofthe particular circumstances surrounding the issuance of such deficiency warrant. so that .theDepartment must, in reply toyour question, necessarily be content ‘topoint out toyou the general rulers governing such matters.

,Article 3, Section 44 of the Constitution ofthe State of Texas, provides as follows:

“The Legislature shall provide by law for the compensation ofall officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation toany 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 ofthe same; nor grant, by appropriation or otherwise. any amount of money out of the Treasury ofthe State. to any individual. ona claim, real or pretended, when the same shall not have been provided for by pre-existing law; nor employ any one in the name ofthe State. unless authorized byepre-existing law.” Article 3. Section 49 of the Constitution ofthe State ofTexas. provides as follows:

“No debt shall be created by or onbehalf ofthe 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.” Itis settled law that Section 44 ofArticle 3prohibits the Leg- ~islature from appropriating State money toany~person or corporation onany claim, unless, at the very time the appropriation 

### ismade. there is alreadyiinlomrsome pre-existing vaIid law constituting the claim the appropriation is made topay a legal and valid obligation against the State. And by legal obligation is meant such obligation as would be enforced by the 

### courtsagainst the State, in the event the Legislature should permit the State tobe sued. Fort **Worth** Cavalry Club vs- Sheppard (Supreme Court), 83S. W. (2) 660.

Public offices and officers being peculiar ,creatures of law, 

### theirpowers 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 tobind the State, and in making such contract, he exceeds the limits ofthe 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 ajudgment against the,State in event the State should permit itself tobe sued.

Illustrations ofthe applications ofthe above principles are to be found in many cases passed upon by the courts ofthis State. Inthe caste ofFort Worth Cavalry Club vs. Sheppard, cited supra. the Supreme Court, appIying the principles above set out, held that theAdjutant Genera1 ofthe State was without express or implied authority to contract for a five yearlease~ **to**-theState ofrealty **to** be used as an aimory. and that. therefore,~ instruments issued by the Adjutant General in lieu ofdeficiency 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 

### theLe+gislature was therefore 

### unauthorized toappropriate money : in payment there’of,-. h

_- _

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

Inthe case of State vs. Haldeman, 163SW. 1020, (writ refused). the Legislature had appropriated $47,500 for the construction oftwo 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 toapproximately $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 thebuildings in the original Act was a limitation upon the power **of** the officers of the State tocontract **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, theact ofthe Governor inapproving 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 ofthe Governor is limited, both by the cons’titutional provision and by the provisions of Article 4351, Revised Statutes, 1925, to the approval ofdeficiency warrants toan amount not exceeding $200,000. and such deficiency warrants as may be approved above the amount of.$200. - 000are invalid both by the constitutional provision and by the provisions ofArticle 4351, Revised Statutes.
lows : You are,therefore. advised in answer toyour question as folIfauthority, express or implied, to contract for the erection of ~thebuilding towhich you refer was not conferred by some pre-existing valid law, the officers ofthe State contracting for the erection ofsuch building acted in excess oftheir authority. The contract, under such circumstances, did not constitute the making ofa legal and valid obligation against the State. The act ofthe governor in approving the issuance ofa deficiency warrant in payment of suc~hcontract could not render that contract valid. The contract out ofwhich the claim’arose. therefore, not having been provided for by pre-existing law, the Legislature. by virtue of the pr~ovisions of Section 44 ofArticle 3of the Constitution. is without authority to appropriate money ofthe State in payment ofsuch deficiency warrant.

Inany event, if the Governor had approved deficiency warrants to theamount of $200.000 at the time this deficiency warrant was approved ~byhim, under the provisions ofArticle 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 ofthe Department directed to the determination ofthe validity ofa 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 toadvise us ofall ofthe circumstances attending and surrounding the making ofthe 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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