**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: OpinionNo. O-7023 Re: Validity of an item oonteined in House Bill 701 appropriating $629.05 to pay olaim ofPort Worth National Bank of Fortl,forth, Texas. ! ‘,

Legislature tobe paid **out** of

ing its inclusiontherein in theWsaullaneoua Claims Bill. Xe further stated In our prior opinion,that the olaimant must await appropriateaoflon by the Legislature for payment out of the dghwap Fund. Inthe light of the .-t” ewswe now have and herein express,while we atUl‘qdh8re o the prlnoiples of law setout.? our\,former op~inlon,those **views now**  become aoademi6. \I \ ,’ i
f ” \ ,, ,/” /’ I’ I’ /I&l be he&l *ifwe **review** thehistory of this olbim brlefly~~atql thla~.f9llowar In 1929, theState Highway Comm.ission,acting in pursuanoe of the legal authorltywhich the Legialsturd,hadoonferred upon it,made a oontraotwith the Tibbetts ConstructionCompany for the oonstruotfon of a porticn,,of”wStatehighway 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 inourredby the HizJrwayDepartaent in conneotionwith a detourmade neoessary in the construction of the highway. This gave rise to aXon. 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

NationalBank of Ft. ?lorth,Texas, was granted consent to sue the Stat8 upon the item her8 involved, and pursuant to this authority suitwas instituted by the bank, and Ultimat8ly reduoed t0 an agrebd judgment in 1943. S80. 2 of said Houee Bill 381,grantingthe oonsent of the State to be Sued, proTided in part as follows:

"And any judgmentreoovered against the Stat8 of Texas shallbe paid out of the State Highway Fu3d.l

It lanow ourview that at the time the State granted consent to sue in this oaas therewas a pr88XiSting appropriation out ofwhioh a valid judgment could be paid, when the amountwas judiciallydetermined, from the Highway Fund, When the amountwas agreed UpOn in 1943 and an agreed judgment entered,which judgmentbeoame final, the same could and should be paidby 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; andwe think all unexpended funds for contractual Obligations
are reappropriatedby 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 thevalidity of the oontraot between the State and the oontraotor is raised. The oontraotor performed his oontraot, and ithas now been judicially determined by the agreed judgment that the Stat8 erroneously withheld from the oontraotor'a oompensationthe amount agreed upon and ofwhich 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,butwe approve them in prinoiple and rely upon the authoritica therein stated. If, as stated In opinion No. C-5713, the disputed item forwhioh an appropriation had been Fr8ViOLEZly madewas withheld by the Highway

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

Commission, and in 8ff8Otwithheld funds belonging to the contractor and not to the State, no additional appropriation would be required to authorize theHighway Commission to pay same to the oontraotor'aassignee, the Ft. Worth Natiamsl **9ank.** And if it has not been withheld by theHighway Commlasion, there isneYerthel8as authority to pay it under the holding of opinionNo. 0-6503, in that it is supported by a legal appropriation.

The law as prOnOUnO8d in theNational 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, aswe hare h8r8tOfOr8 pointed out, it -?a6not neoeaaary for the Legislature,wh8n it granted its consent to SU8, tomake another appropriation st that time
or any subsequent tinie,for a legal spprOpriatiOn had theretoforebeen made, and reappropriated eaoh two years, h8nC8
sea. 6 of Art.VIII of theState Constitution isnot YioIated, whloh Is as follows:

*Nomoney shall be drawn from the Tr8RSUry but in pursuanoe of apeolflo appropriationsmade 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 Constitutionwhich may make the neoeaaary SpprOprfatiOnS to carry on the government until the assemblage of the 16th Legls1ature.n

The **statute gave**  theHighway Commlaaion authority tomake this oontraot and to disoharge the obligations arising thereunder out of an appropriation from the Highway Funds. The Legislature granted oonsent to sue, and oonsistentwith the provisions of the oontraot provided that the liability when aaoertained shouldb8 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 passedby the 49th Legislature, providing for itspayment 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 itwas not neoeaaary for the 49th Leglalature to make an appropriation out of either fund for the reason that a legal appropriationhad theretoforebeen made and now exists for its payment **out ol**  the iIlghwayFund.

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iIon. C. ii.Cavneas, page 4

From the foregoing it follows thatwe are of the oninion that this olalm in the amount of .;629.05in favor of the Ft.North National Bank lavalid, and that payment ther6Of shouldbe 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