Case Information
*1 14s OFFICE OFTfifi AlTORNEY GRNRRALOF~ AUSTtN Ooorge FT. SIeypar4 HOBOlY4bh
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 de- his ~111 will affect the rentals aacruing under lease , 1943, which la the effeot- lmpoees a duty upon all Uepfirtsients and agenolo:: of State (2orernment; when r@crtal spnoe is nea4a4 for carrylug on the eawatial funo- tion8 of such agencies departments of the State Government, to submit to the State Board control a request giving tbe type, kind, an& stzs of build- ing needed, together with any other nroeeeary 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 ad- vertise an4 let bide, eto.
“Thie statute doer not prescribe a penalty for failure ruoh departments agenofos of the State Oovernment to make 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 Art- fole 6bUb. POC the plrporres of thin opinion, however, we shall rafer to this 1eg:isletlon hereinafter a6 senate Bill as the Bill or the not. xo. 266, or simply
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 shsll *Ubmy%T+ttr of runotlone of suoh agenoles QT de 3% the State the State Ootarnment, 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, if, in ths diucretlm of the Board euah apaoe ir neede4, 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 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 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 agenoy or‘ the.govern- ment 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 ex- pended, 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 question of whether the Aot lnvalidat$s or oonditionr bxii?ititxg ~eaaes, and gives *4 Xon. Gsorge R. Shei;pard, Page 4
rise to the following two propoaltlona: (1) whether the Legislature by anaotmnt of the first two amotions tba Bill Intended to canoal existing lease8 and rental agrea- wnta and thus to require Stats departments and aganoies lmedl8taly to socure naw ooatraota nndor the method pn- scribed In these two l aotiana; l n4 / o r (E) ahrthor the Laglalatur8 intended to oondltian ths oontiaurd arlatonoe of leams end rantal agreuasnta upon a lft8rrl aompllana* by auoh d8partmmta and agsnol88 with the provisions of r,aotlon 3 of the Act. ar both three prOpo8itionS 8hOuld b8 Ii sither
resolved in the affirimtlve, than the Act right oonoelrably affoot the paymant or current rentals under existing eon- treat6 rhfoh Jmd their lnoeption prior to l&y 7th. If both should ba roaolred in the wgatlva, w8 would be repulrod to hold that the Aot has no effeot upon tha paymontr la question.
In abwnoa of any lnforastlon to the oontraxy, we aaaume that all of the oontraotm you haoe,$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., 1919) 212 D. %. 69$, 8rrOr refu8sd. The aloak &dV8StOD, l?S118V8 the State uf the duty to Of crorrl’dgnty does not r8apoOt lta oontmotual obllgation8. The faot that It uaa- not 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 'The lmpotenor 0r prlrat8 Appeals, 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 oontr8ota [18] aafeguanbd 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 ob- ligation of oontraota shall be mado." Ceation 10 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 oanati- tutlolu. See TT&V~IST~ Ine. co. v. Marshall, 124 Tsr. 43 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 th8 State tG the provIaIon8 of its 188aea sad rental agTeeau?ntr. Ally lnt~rpretatlon of Sonata sill 266 which gives it the Of- foot of oana8lling valid and binding laaaaa and rental agre8- manta 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 pro- vision of that .Aot, Ia susceptible of the aonatruotion rug- gested. 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 unoon- atltutlonal.
It is ~011 settled that if an aot is fairly SUacOpt- Ible of two ooraitxuotiona, under one of.w!'&ah It woslP be ccn- atltutlonal and under the other of whlah it would be lnvalld, 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 condi- tion liability 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 pro- visions 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 re- quire 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 oc- aupying aufficieent epace under a valid lease contraot or egree- ment is not now in need of' rental space. 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 such subordinate agencies of the ~overmant bae often been held to be E reetrio- tlon 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 ex- isting 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 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 pro- vldon.
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 law to p468 upon 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 re- qulrlnd it.
@hat we have said demonstrates that we 4r4 or tlm opinion that the langusgo Aot is pl4in and unambiguous. undor settlsd rules rtatutorr filnoo its smming is ol44r, the dot should be oonstrued and given efi4ot ao- oonstruotlon, 04ddy v. First National Bank, 115 fer. oord:n(l to its tams. m;, 28s s. ff. 472, 4n4w4ring questions oertirlbd, 283 s. 6. ; SQ T4X. Jr. 219.
we therorore answer your rirst qgestlon in the nega- tire. 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 pay- ment 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 ran- tal spaoo, the ag4noiss end departmanta atrooted are re- striotod to that mod4 and must oonfone to t&see requir4mants. Pbrguson v. Halsell, 47 Tex. 421. This being the only method whereby Stat4 dopartmonts 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 automat- ioally tsrmlnat4 on August 31, 1915, the lest day cU ths our- Th4 Suprsm4 Court has ruled that the State oan- rent blonnlum. not 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 depart- larnts affected this l4g1slation must snter,into nsw lsas4 to take streot on Septembrr 1, 1943. agreenwnts that wo hare ruily 4uswer4a your Trusting inqtiw
end that you will cell upon us ii wa oan be rurther servioe, we am
Yours very truly ATTORNW GENSRAL OF TEXAS mt4r ~en1soaloo ASSfStSflt //.--\ nhr0 @. c. #4?