OFFICE OFTfifi AlTORNEY GRNRRALOF~ 

AUSTtN 

HOBOlY4bh Ooorge FT. SIeypar4 

Comptroller Publie .4ooouuts 

motin, texaa 

Dear Sir: 

an4 r*,latsd quis; 

an interprotatiu 

passed at the Ha 

litlm. 

ime 6eaate Bill 

salon of the 

advise this dehis ~111 will affect the 

rentals aacruing under lease 

, 1943, which la the effeotlmpoees a duty upon all Uepfirtsients 

and agenolo:: of the State (2orernment; when r@crtal 

spnoe is nea4a4 for carrylug on the eawatial funotion8 of such agencies or departments of the State 

Government, to submit to the State Board of control 

a request giving tbe type, kind, an& stzs of building needed, together with any other nroeeeary 

14s 
146 

TTO~. George F. SheFpati, page 2 

description, aad to state the purpose for nhlab 

it will be urei3 m4 the need therefor; end, if 

ln the dfrcretion of the Board ruoh epeoe tr 

needed, the Boar4 of control ray prooeed to advertise an4 let bide, eto. 

“Thie statute doer not prescribe a penalty 

for failure of ruoh departments or agenofos of the 

State Oovernment to make the request to the Boar4 

Of Control. 

*r2. Is this d*prrtment authorized to iawe 

warrant in pafPsnt OS olalm for rental where the 

deQaStI&eBt failed to COD&ply with ,4. B. 190. 2667” 

Sanati.Bill 266 warn ensoted by tha 48th Legiolature 

as C.hapt& 2S?& .&&o 194b. xeaording to 8 tootnote appearing 

on page St38 of Vernon*a Texae Sesrion Law Sex-vloe, this Act 

will be lnoluded in Vernon’@ Annotated civil Statute8 ae Artfole 6bUb. POC the plrporres of thin opinion, however, we 

shall rafer to this 1eg:isletlon hereinafter a6 senate Bill 

xo. 266, or simply as the Bill or the not. 

The portion8 of thla le(lltGatloa with rhleh your 

inquiries ora ooaoorned, being E.eetiona %, 2 and 3 of the 

Rot, rea4 aa followe: 

%eotion 1. Hereafter all departmat an4 

ag4nolea or the State Government, when rental 

epaoe Le needed for aarrylng on the l roantlal 

runotlone of suoh agenoles QT de 

the State Ootarnment, 

shsll *Ubmy%T+ttr of 

3% the State 

Soar4 of control a rqueat therefoti;-#viag the 

trpe, kfnd, an4 size of building needed,, together 

with any other neaeseary deeaription, and etatfng 

the purpose for whloh It will be used and the need 

theref or. 

*Ssotlon 2. ';'he state mar4 of control, upon 

rsoelpt of suoh requeet, an4 if the money haa been 

made available to puy the rental thereon, and if, 

in ths diucretlm of the Board euah apaoe ir neede4, 
147 

Boa. ueorge 2. Sheppard, Page 3 

shall forthwith e4vertiee in a newspaper, which 

haa been ragularly publlehed an4 QirOulb.te4 in 

the city, or town, where auah rental epeos is 

wrought, for bids cm suoh rental spaoe, for the 

uees indioated and Sor 8 period Of not to eroeed 

two yaars. After such bids have beon reoeived 

by the State Boer4 of control at its principal 

offios in Austin, Tbxaa, an4 publioly opened, 

the slward for suah rental oontract will be mmde 

to the lowset en4 beat bidder, en4 upon euoh 

other terms aa may be agreed u9on. The term0 

of the oontreat, together with the notice of 

the eward of the state Barr4 of Control wfll 

bs submitted to the .Attoraey Ueneral of Texas, 

who will oause to be prepared end ereouted in 

aocordance with the terms of the agreement 

suoh aontrsat in qua4ruplloete; one oi whaiolt 

.will be kept by eaoh party thareto, one by the 

State Boar4 of Control, cm4 one by the Attorney 

Goneral of Tesao. The partiee to such eontract 

will be thr departnent or agenoy or‘ the.government using the epaae as lessee an4 the party 

renting the space as lea8or. 

"Seotion 3. aithin thirty d4pr after thm 

effeotlre date of this Aat, all departments 8~4 

agenoies of the state Cwerrsnt at thir time 

Ieaaing or renting spa04 from any peraoa, rim3i, 

or corporation whosmoever, rrill oause to be prc 

pare4 and delivered to the &ate Board of control 

in ?.ustin, Texas, a copy of any wrttton rental or 

lease a~retment now in foroe an4 ourrent, or any 

statement of any ore1 underatendlag upon which 

any leaee or rsntal public funds em being expended, if 6uoh action has not already bsen taken.+ 

This bill wac pas844 unaniaoualy by both houses of 

the Leei mlature, and, under its emergenay olauae es you 

state4 in your letter, it beoeme effective imae4stely upon 

approval on Way 7th. 

your first inquiry raises the question of whether 

the Aot lnvalidat$s or oonditionr bxii?ititxg ~eaaes, and gives 
Xon. Gsorge R. Shei;pard, Page 4 

rise to the following two propoaltlona: (1) whether the 

Legislature by anaotmnt of the first two amotions of tba 

Bill Intended to canoal existing lease8 and rental agreawnta and thus to require Stats departments and aganoies 

lmedl8taly to socure naw ooatraota nndor the method pnscribed In these two l a o tia nal n; 4/or (E) ahrthor the 

Laglalatur8 intended to oondltian ths oontiaurd arlatonoe 

of leams end rantal agreuasnta upon a lft8rrl aompllana* 

by auoh d8partmmta and agsnol88 with the provisions of 

r,aotlon 3 of the Act. 

Ii sither ar both or three prOpo8itionS 8hOuld b8 

resolved in the affirimtlve, than the Act right oonoelrably 

affoot the paymant or current rentals under existing eontreat6 rhfoh Jmd their lnoeption prior to l&y 7th. If both 

should ba roaolred in the wgatlva, w8 would be repulrod to 

hold that the Aot has no effeot upon tha paymontr la question. 

In the abwnoa of any lnforastlon to the oontraxy, 

we aaaume that all of the oontraotm you haoe,$n tind wera 

valid agroenenta, properly mtardd into, an~~olndiag upon 

the Btatti prior to Kay 7th. v 

It 1s well srttlad tkatuhon the Stat8 m&or a 

oontraot it iu as mob bound thereby a8 a oltdeen uauld br 

bound upon a like ooatraot. 8tat8 v. IUllot (clv. App., 

&dV8StOD, 1919) 212 D. %. 69$, 8rrOr refu8sd. The aloak 

Of crorrl’dgnty does not l?S118V8 the State uf the duty to 

r8apoOt lta oontmotual obllgation8. The faot that It uaanot be eu8d without its oona8nt in no way detracts rrfm the 

propOaltlon that it la llabl8 wasr Ifs QOnbr8Ot8. 

As pointed Out by Chief SUatiO8 MOCl8ndOlI Of th0 

au&in Court af Civil Appeals, 'The lmpotenor 0r prlrat8 

lndlrlduals to enforoe ttrough thdr oourt8 thrlr Ocmtnotucrl 

rights against th8 Steie, by re8ilOn Of lnabllltjr to au8 tb0 

State without its oonaeat . . . dces not affeot the blndlng 

force Of state ObligatlOn8. . ." Stat8 V. Elliot, aupra. 

The sanctity of oontr8ota 18 aafeguanbd by both th* 

Conetltutlon of Texas and the Ooaatitution Of th8 Unft@d States. 
:l49 

Hon. George il. :;heppard, Pa&e 5 

SeOtiOn 16 of Arti I Of the State ConetitutIon, 

a part of aur Sill of Righta, provides: 

";lio bill oX attainder, ex post faoto 1au, 

retroaotlve law, or any law impairing the obligation of oontraota shall be mado." 

Ceation 10 of Art1018 1 of th8 Fadsral Constitution 

prorldeia: 

*No <itate Bhall . . . pose any . . . Law 

impairing tha Obligation of Ccintnrota . . .* 

Our Supreme Ccurt in two VigOrOUS opinions by th8 

late Chief Juetloe Cunton has doolared the right of oontreot 

to be one of the moat aaomd dgbta proteoted by the88 oanatitutlolu. See TT&V~IST~ Ine. co. v. Marshall, 124 Tsr. 43 76 

s. 8. (2) 1007, 96 k. L. R. 802, and Langswm '1. rilll8r* i24 

Tex. 80, 76 S. ii'. (2) 1025, 96 A. L. 2. 836, TOfUSIng 8TroT 

(Cir. App.) 73 S. X. (2) 634. 

Thoce with mhom the State has contracted for rental 

apcr have the right to Insist upon rtrfct oonforrunoe by th8 

State tG the provIaIon8 of its 188aea sad rental agTeeau?ntr. 

Ally lnt~rpretatlon of Sonata sill 266 which gives it the Offoot of oana8lling valid and binding laaaaa and rental agre8- 

manta or whfoh oondltiona liability upon rrquiTsPDlnt8 not 

OoIit8mp~tOd by the parties when the oontraote won rmda would 

clearly make the bill repugnant to the, quoted pTovIaIon8 In 

both Constitutiona. 

~0 do not belieV8 that the longuaga of th8 first 

thres sections of the Aot, above quoted, or of any other provision of that .Aot, Ia susceptible of the aonatruotion ruggested. however, even though it oould be 80 avnatrued, 18 

could not interpret it thus exospt In the abaenno of any 

othar possible oonatruction whioh nould not rend8r it unoonatltutlonal. 

It is ~011 settled that if an aot is fairly SUacOptIble of two ooraitxuotiona, under one of.w!'&ah It woslP be ccnatltutlonal and under the other of whlah it would be lnvalld, 

the former must prsvall. mplre Gas f4 Fuel co. v. State, 121 

Ta)x. 138, 47 %. ;f. (2) 265, efrlrmlng 21 3. F. (2d) 3761 39 
Eon. George :<. Sheppard, Page 6 

Tex. Jur. 207, and case6 cited in footnote 5. 

:;e are of the opinion that, proparly construed 

according to the plain Intent of the language used by the 

Legislature, the Act does not purport to cancel or condition liability of the State under the leases and rental 

agreements you mention. 

It will be observed that the first two sactlons 

Or the XCt are prospective in their scope and contain provisions relating to the executing or lease contracts and 

rental agreements in the future. We perceive nothing in 

these two sections which would lead us to believe that the 

Legislature Intended to cancel existing contracts and require all depzrtments and egonoies immediately to secure 

new lessee in the manner prescribed. 

Section 1 at the Act provides that whenever "rental 

space Is needed for carrying on the essential tunctlona or 

such agencies or departments or the State government . . ." 

such apace should be procured under the procedure outlined 

in the Act. Obviously, e department or agency presently ocaupying aufficieent epace under a valid lease contraot or egreement is not now in need of' rental space. or oourse, if such 

agenoy or departmeat should need additional space, or it its 

lease orrantel oontract has expired since the enactment of the 

bill, the rental space must be secured In accordance with the 

prooedure set out. 

ax 

"The pr.cscribing or e mode ol exercising 

a power by such subordinate agencies of the 

~overmant bae often been held to be E reetriotlon to th&-mode." FerguScn v. I'felaell, 47 

Tex. 421. 

Khfle it is true that Section 3 of the Act requires 

all departments and agencies occupying rental space under existing leases or rental agreements to deliver copies of such 

leases m’agreements to the Board of Control within th+rty 

days after the effective date of the Act, it is likewise tN0, 

as you have pointed out. that the Act provides no penalty for 
151 

Pon. George TT. Sheppard, Peg4 7 

failure to eonply with this providon. A dlscusilon 0r 

possible means cf enrorolng thi8 requiremsnt *auld not be 

geramne to this opinion. 

However, w4 will st4te that we rind nothing In th4 

Aot whloh would 4uthorIzo you to withhold pymaasnts ai rentals 

to lnduoe the departments or agenoios to ocmply with this provldon. 

ft is not wIthIn the power of 4 mInlsterI41 offloor 

to deolare ~016 and refuse to enforce or oaply with 4 oontraot 

that has been duly 4Bd orrloiall~ apprcwed by thosa authorized 

by law to p468 upon and to sfteot Its l teoution. Charles 

Scribnor*s 2ons Y. bmrrs, 114 Tsr. 11, 282 S. Vi. 722. 

we rI6ht 4dd that this mans or ooeroion might be 

more p4lnful to its 14ndlord than to the receloitrant agenoy 

or Q4@4rtaent. i?e are unwillIn$ to nad into the Aot suoh 4n 

lneirsotivs senctlon in the absrno4 ot sxpr488 language requlrlnd it. 

@hat we have said demonstrates that we 4r4 or tlm 

opinion that the langusgo or the Aot is pl4in and unambiguous. 

filnoo its smming is ol44r, undor settlsd rules of rtatutorr 

oonstruotlon, the dot should be oonstrued and given efi4ot aooord:n(l to its tams. 04ddy v. First National Bank, 115 fer. 

m;, 28s s. ff. 472, 4n4w4ring questions oertirlbd, 283 s. 6. 

; SQ T4X. Jr. 219. 

we therorore answer your rirst qgestlon in the negatire. You are theroforo reapaotfulQ advised, end It is ths 

opinion of this departmat, that Samto El11 No. 266 till not 

erreot the paymmt or ourr4nt rentdls aooruI,ne under a r4lld 

lease smde prior to I4y Ith, whioh Is still In etfeot. 

ihet we have 4,lready said answers in pert your Second 

questIon. we are or the opinion that rellur6 OS an a@mOy or 

department tc oomply with the provlsloas of Saotion 3 Or the 

&ot 6044 not affeot your authority to iaaua a warrant in payment of e 014im for rental against a departnant which had not 

oomplled with this providcn, and you are as fully authorized 

to issue such warrant ~4 you were before parsags of Senatr 

Bill NO. 265. 
Hon. George Ii. Sheppard, Page 0 

Any new lease or rental contract entered into 

eStsr passago of Senate Bill No. 266 must be axeoutad in 

th4 manner prasoribsd by Seotions 1 and 2 or the Act. The 

Legislature having provided e mode for the securing of rantal spaoo, the ag4noiss end departmanta atrooted are restriotod to that mod4 and must oonfone to t&see requir4mants. 

Pbrguson v. Halsell, 47 Tex. 421. This being the only method 

whereby Stat4 dopartmonts and agenoies may seoure rental spaoe, 

the Stat.4 would not ba bow@ by any oontraat not ontared into 

In strlot ooniormancre with the &Wovf4ions of Ssotionsl and 2 

Or th4 AOt. Steta 1. Perlst4In (Cit. App. Austin, 1935) 79 

9. W. (2d) 143, error dlsmIssod; Nichols v. Stats, 11 Clv. 

App. S27, 32 S. W. 452. 

In reply to your sroond pusstion you are, thsrsforr,, 

reep4otfully advised that you would not b4 authorized to -1ssu4 

warrauts in payment of olaIms for rental under lsasss or r4ntal 

agrauwnts entsred into since May 9th. unl.rss suoh leases and 

rental agroenant ware entered into la ths manner pr4sorib4d by 

SeotIOna 1 4nd 2 OS 84Mt0 Bill ?ifo. 266. 

As an aid to you in administering claims undar this 

legIsletIon, WI might add further that all rsntal ago4m4nts 

and 144ses, which have not 4xpired prcrrlously, will automatioally tsrmlnat4 on August 31, 1915, the lest day cU ths ourrent blonnlum. Th4 Suprsm4 Court has ruled that the State oannot bo bound upon e 144~x4 contmot that extends beyond th4 two 

year period oovrred by the appropriation und4r whioh rsntals 

thoreundor arc payable. Port worth Cavalry Club v. Shopgclrd, 

125 Tex. 339, 85 S. W. (26) 860. Therefore, 411 strrte departlarnts affected by this l4g1slation must snter,into nsw lsas4 

agreenwnts to take streot on Septembrr 1, 1943. 

Trusting that wo hare ruily 4uswer4a your inqtiw 

end that you will cell upon us ii wa oan be or rurther servioe, 

we am 

Yours very truly 

ATTORNW GENSRAL OF TEXAS 

mt4r ~en1soaloo 

ASSfStSflt //.--\ 

nhr0 

4 

@. c. #4?