OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

GROVER SELLERS 

ArrOlNI” GCNC”AL 

IIon. C. H. Cavness 

State Auditor 

Stat8 Capitol 

Austin, Texas 

Dear Mr. Cavneaa: 

Opinion No. O-7023 

Re: Validity of an item oonteined in 

House Bill 701 appropriating 

$629.05 to pay olaim of Port Worth 

National Bank of Fort l,forth, Texas. 

! ‘, 

Legislature to be paid out of 

ing its inclusion therein in the Wsaullaneoua Claims Bill. 

Xe further stated In our prior opinion, that the olaimant must 

await appropriate aoflon by the Legislature for payment out of 

the dghwap Fund. In the light of the 

.-t” 

ews we now have and 

herein express, while we atUl‘qdh8re o the prlnoiples of 

law set out.? our\,former op~inlon, those views now become 

aoademi6. \I \ ,’ i 

f ” 

\ ,, ,/” 

/’ 

I’ I’ /I&l be he&l *if we review the history of this 

olbim brlefly~~atql thla~.f9llowar In 1929, the State Highway 

Comm.ission, acting in pursuanoe of the legal authorlty which 

the Legialsturd,had oonferred upon it, made a oontraot with 

the Tibbetts Construction Company for the oonstruotfon of a 

porticn,,of”wState highway in Hudapeth County. The highway 

was construeted and the Highway Commission withheld from the 

amount due..the contraotor under the contraot an amount slightly 

in excess of ;lOOO. beoauae of certain expenses inourred by 

the HizJrway Departaent in conneotion with a detour made neoessary in the construction of the highway. This gave rise to a 
Xon. C. 3. Cavness, page 2 

controversy between ths State and the oontractor. The Ft. 

A'orth National Bank beoame the owner of the claim of the 

oonatruotlon company by appropriate assignment. 

ail1 No, 381 (Ch. 148, R. S., 

By Houee 

44th L8giSlatur8, pp. 388-389) 

the 3. :Ilorth National Bank of Ft. ?lorth, Texas, was granted 

consent to sue the Stat8 upon the item her8 involved, and 

pursuant to this authority suit was instituted by the bank, 

and Ultimat8ly reduoed t0 an agrebd judgment in 1943. S80. 2 

of said Houee Bill 381,granting the oonsent of the State to 

be Sued, proTided in part as follows: 

"And any judgment reoovered against the Stat8 of 

Texas shall be paid out of the State Highway Fu3d.l 

It la now our view that at the time the State 

granted consent to sue in this oaas there was a pr88XiSting 

appropriation out of whioh a valid judgment could be paid, 

when the amount was judicially determined, from the Highway 

Fund, When the amount was agreed UpOn in 1943 and an agreed 

judgment entered, which judgment beoame final, the same could 

and should be paid by the Highway Department from the Highway 

Fund without any further appropriation. The LegiSlatUr8 every 

two years reappropriates all Stat8 Highway Funds not previously 

expended as well as all new funds ooming into the treasury; 

and we think all unexpended funds for contractual Obligations 

are reappropriated by the Legislature each two years for the 

payment of the State's obligations on auoh oontraots as the 

Highway Commission is authorized under the law to make. No 

question of the validity of the oontraot between the State 

and the oontraotor is raised. The oontraotor performed his 

oontraot, and it has now been judicially determined by the 

agreed judgment that the Stat8 erroneously withheld from the 

oontraotor'a oompensation the amount agreed upon and of which 

the Ft. Worth National Bank b8Oam8 the legal owner. 

Two prior opinions of this Department support th8 

views we now entertain, No. O-5713 and No. o-6503, ooples of 

whioh are herewith attached for your information. !Ve do not 

d86m it necessary to 18ngth8n this Opinion by inoorporating 

them in thisJopinlon, but we approve them in prinoiple and 

rely upon the authoritica therein stated. If, as stated In 

opinion No. C-5713, the disputed item for whioh an appropriation had been Fr8ViOLEZly made was withheld by the Highway 
I.05 

'ion. C. ;-I. Cavneas, page 3 

Commission, and in 8ff8Ot withheld funds belonging to the 

contractor and not to the State, no additional appropriation 

would be required to authorize the Highway Commission to pay 

same to the oontraotor'a assignee, the Ft. Worth Natiamsl 

9ank. And if it has not been withheld by the Highway Commlasion, there is neYerthel8as authority to pay it under the 

holding of opinion No. 0-6503, in that it is supported by a 

legal appropriation. 

The law as prOnOUnO8d in the National Blaouit Co. 

v. State, 135 S. W. (26) 687, and in State v. Hale, I46 9. ‘8. 

(2d) 740,is not applioable to the faota in this 0868, for 

the obvious reason, as we hare h8r8tOfOr8 pointed out, it 

-?a6 not neoeaaary for the Legislature, wh8n it granted its 

consent to SU8, to make another appropriation st that time 

or any subsequent tinie, for a legal spprOpriatiOn had theretofore been made, and reappropriated eaoh two years, h8nC8 

sea. 6 of Art. VIII of the State Constitution is not YioIated, 

whloh Is as follows: 

*No money shall be drawn from the Tr8RSUry but in 

pursuanoe of apeolflo appropriations made by law; nor. 

shall any appropriation of money be made for a longer 

term than two years, eXO8pt by the first Legislature 

to assemble Under this Constitution which may make the 

neoeaaary SpprOprfatiOnS to carry on the government 

until the assemblage of the 16th Legls1ature.n 

The statute gave the Highway Commlaaion authority 

to make this oontraot and to disoharge the obligations arising 

thereunder out of an appropriation from the Highway Funds. 

The Legislature granted oonsent to sue, and oonsistent with 

the provisions of the oontraot provided that the liability 

when aaoertained should b8 paid out of the Highway Fund, 

and there being in 0U.r view a speoifia appropriation to pay 

the liability which was each two years reappropriated, this 

claim oan be paid out of the Hlghway Fund, and the inclusion 

of this amount in the Miao8llan8oua Claims Bill passed by 

the 49th Legislature, providing for its payment out of the 

General Fund do86 not repeal or nullify the obligation and the 

appropriation to pay it out of the Highway Fund. ID Other 

words, we hold that it was not neoeaaary for the 49th Leglalature to make an appropriation out of either fund for the reason 

that a legal appropriation had theretofore been made and now 

exists for its payment out ol the iIlghway Fund. 
106 . 

iIon. C. ii. Cavneas, page 4 

From the foregoing it follows that we are of the 

oninion that this olalm in the amount of .;629.05 in favor 

of the Ft. North National Bank la valid, and that payment 

ther6Of should be made from the Highway Fund, and not the 

General Fund, and you are aooordlngly so advised. Our 

?xmer opinion la withdrawn and this one substituted 

th6refOr. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

ATTOF3iEY G