Case Information
*1 ORNEY GENE-L OFTEXAS
Hon. Paul L. Bognton, President
Stephen F. Austin State Teachers College
Nacogdoches, Texas Opinion No. O-7352
Dear Sir: Re: Authority to expend a specific the construc- tion of a permanent improvement adequate. of August 10, 1946, where-
We acknowledge your letter in you request an opinion of this department on matters therein discussed, which reads, in substance, as follows:
The 49th Legislature to the Stephen F. Austin State Teachers College for the year ending August 31, 1946, $24,000.00 for “steam tunnels and steam pipes for main buildings.” On three occasions, bids were requested and in each instance the same had to be rejected because the bids were in excess of the amount appropriated . ComDaniea are not willing to bid more closely within the range of costs because of the uncertalntg of material and labor costs. That the college might realize the sum appropriated, we, desire to know whether we can let a contract, a cost-plus contract, with the stipulation or agreement with the bidder that the total work done would not exceed $24,000.00, and bidder would agree to complete unit in Its entirety when moneys are mad,e available. The college could get most of the work done on this basis, and a contract would be let in such a way that the bidder-company would agree
upon which it shall work to its entirety.
Under the facts stated, it is revealed that the appro- priation of $24,000.00 for steam tunnels and steam (Item 78, Acts 1945, $%Y~~f;sla- main buildings of the college ture, Regular Session, Chapter 377, page 796) Is inadequate meet the present day costs of materials and labor the con- The basic and installation of the steam system. question involved here is, we believe,, whether the college has authority to expend an appropriation made for the construc- tion or installation of the steam system contemplated by the
. , Hon. Paul L. Boynton, page 2
Legislature, in fact inadequate.
It Is elemental, of course, that all power to approprl- ate money for public purposes or to incur any debt therefor, unless given by the Constitution to some other ind,ividual or body politic, rests In the Legislature. Sec. 6 of Art. VIII of the Texas Constitution, provides that “no money shall be drawn from~ the Treasury but In pursuance of specific appropriations made by flaw .‘I This provision requires speclficness as to pur- pose as well ,as to amount.
The type, of appropriation which we are herein discussing Is a specific for a purpose which the Legislature contemplated might be accomplished within the sum appropriated therefor. In other words, we believe that the Legislature appropriating Item 78 could have and did contemplate the full complet%on of the construction or installation of a steam tunnel and pipe system for the main buildings of the college, and provided by Its appropriation that the cost of the complete system should not exceed $24,000.00 The Legislature specified by its appropriation to the college the purpose for which it. should be expended and the specific amount to be expended for the steam system In question.
It is well known that it Is the custom with the Legls- lature to appoint committees or boards to investigate the needs of public Institutions and to pass appropriation bills definite amounts for the support, maintenance and erection of bulldlngs Andy other permanent Improvements therefor. Articles 688, 689, 68qa-2, 689a-7, V.A.C.S.; State v. Hardeman, 163 S.W. 1020. We do not think the passage of the appropriation bill, above referred to wherein the specific amount of $24,000 was for ‘steam tunnels and steam pipes for maln build- ings” the College, the Legislature intended to grant trustees thereof discretion to incur liabilities on the part of the State for more than this amount.
All public offices and officers are creatures of the law. The powers and duties of public officers are defined and 22 Ruling Case Law, page 555. Public limited by law. officers may make only such contract with the government they represent as they are authorized by law to make. Fort Worth Cavalry Club In our opinion.,, the approprlatlon vs. Sheppard, 125 Texas, 339. law authorized In effect the proper officials of the College make a contract blnding upon the State for the erection, con- of the steam system in question and fixing the amount to be spent therefor, by impllcatlon, declared that the cost of the steam tunnels and steam plpes for main buildings should in no case exceed $24,000. This was a llmita- tion on the authority of the agents~representing the State, and any efforts on their part that would attempt to impose upon the *3 Hon. Paul L. Boynton, page 3
State a contract that would Increase its liability beyond the amount stipulated In the appropriation would be clearly un- and would be an act not binding on the government. authorlzed, 32 S.W. 452; State v. Halderman, 163 S.W. Nichols vs. State, 1020.
Considering the facts herein quoted, wherein It Is apparent that the College cannot contract for the construction of a completed steam system as contemplated the quoted appropriation bill at a cost of $24,000.00, or less, we are of the opinion that the College cannot let a contract stipulating with the bidder that the total work done would not exceed $24,000 and wherein the bidder would agree in its entirety when moneys are made available, the reasons hereinabove stated.
Trusting the above satisfactorily answers your quiry, we~remain
Very truly yours, ATTORNEY GENERAL OF TEXAS By s/Chester E. Ollison, Chester E. Ollison Assistant CEO:rt:wc
APPROVED AUG 19, 1946
s/Ocle Speer
(Acting) ATTORNEY GENERAL OF TEXAS Approved Opinion Committee By s/BWB Chairman