Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Horn Homer Garrison, Jr., Director Department of Public Safety Camp Mabry Austin, Texas
Dear Sir:
Opinion No. 0-3100 Re: Authority of the Depart- ment of Public Safety to purchase suitable land you which to erect a radio station, and pay for some out of its appropriations.
Your request for an opinion on the following question:
"Would the Department of Public Safety be authorized to purchase suitable land from the appropriation to the department to erect a radio station for police broadcasting purposes?
has been received in your letter which we quote:
"In the Astereating the Department of Public Safety, provision is made for the erection and operation of police broadcasting stations. Such a station has been in operation at Camp Mabry for several years, but recently it was necessary for us to move from our location upon request of the Adjutant-General, due to the fact that the ground that we were occupying is now being used for new buildings under the supervision of the Adjutant-General.
"For efficient transmission of messages by radio, it is necessary that the serial and ground system be erected on certain types of soil that are not available at Camp Mabry. I would appreciate
*2 Hon. Homer Garrison, Jr., Page 2
It if you would advise me whether or not this Department would be authorized to purchase suitable land from the appropriation of the Department to erect a radio station."
The authority of the Department of Public Safety is found in Articles 4413 (1), 4413 (2), 4413 (4), 4413 (13), 4413 (15), Revised Civil Statutes of Texas, which read as follows:
"Art. 4413 (1), There is hereby created a Department of Public Safety of the State of Texas, hereinafter designated as 'the Depart- ment,' in which is vested the enforcement of the laws protecting the public safety and pro- viding for the prevention and detection of crime. The Department shall have its princi- pal of five and headquarters in the city of Austin, where all of its records shall be kept."
"Art. 4413 (2). The control of the Depart- ment is hereby vested in the Public Safety Commission, hereinafter designated as 'the Commission,' which Commission shall consist of three citizens of this State . . . ."
"Art. 4413 (4). The Commission shall form- ulate plans and policies for the enforcement of the criminal laws and of the traffic and safety laws of the State, the prevention of crime, the detection and apprehension of vio- lators of the laws, and for the education of the citizens of the State in the promotion of public safety and law observance."
"Art. 4413 (13). There is hereby created, as an integral part of the Department, a Head- quarters Division, consisting of the Bureau of Identification and Records, communications, Intelligence and Education. With the advice and consent of the commission, the director shall employ such chiefs, experts, operators, instructors and assistants as may be necessary for the operation of this Division and the several Bureau therein."
"Art. 4413 (15). 1. It shall be the duty of the director with the advice and consent of the
*3 Hon. Homer Garrison, Jr., Page 3
Commission to name the Chief of the Bureau of Communications.
"2. This Bureau may, when funds are provided, install and operate a police radio broadcasting system for the broadcasting information concerning the activities of violators of the law, and for the directing of the activities and functions of the law enforcement agencies of the State, the counties and the municipalities. It shall cooperate with county and municipal police authorities and with police radio stations, in this State and in other States.
"4. This Bureau shall provide for the rapid exchange of information, concerning the commission of crimes and the detection of violators of the law, between the law enforcement agencies of this State, itassounties and municipalities and other states and the national government."
The statutes above quoted authorize the installation and operation of a police radio broadcasting system for the purpose of preventing crime, detecting and apprehending law violators, and for the directing of the activities and functions of the law enforcement agencies of the State, the counties and the municipalities. Thus, the Department of Public Safety could purchase suitable land on which to install and operate said radio station as a part of said authorized broadcasting system with moneys appropriated for the installation and equipment of such a system; first, if appropriations of the department are broad enough to cover such a purchase; and second, if such a purchase could be designated a necessary and incidental expense in carrying out the power granted to the department to install such a system.
We think such a purchase is authorized by the General Appropriation Bill for the two-year period ending August 31, 1945, known as Senate Bill No. 423, p. 1231, 47th Leg., 1941, wherein it provides for an annual appropriation for the Department of Public Safety, Main Division, designated as item 106, as follows:
"106. Postage, supplies, arms, wire communication,
*4 Fon. Homer Garrison, Jr., Fage 4 radio equipment, radio supplies, printing and contingent expenses; hospitalization and medical services when injured in line of duty, funeral expenses when death results from injuries received in line of duty; surety bonds, books, all necessary expenses of operating a police training sohool at camp Mabry for training peace officers generally and members of this department, and any other necessary departmental expenses, including equipment . . . . . . . $55,950.00"
We have undersocred the words "any other necessary departmental expenses." Under the emergency circumstances quoted in your letter the purchase of suitable land appears to be necessary and incidental to the establishment of an efficient broadcasting system; suitable land in this respect might possibly be regarded as part of the necessary radio equipment, and the expense for obtaining same may properly be regarded as one of these necessary departmental expenses provided for in the above quoted item 106.
In the case of Herring v. Houston National Exchange Bank, 269 S.W. 1031, wherein there was a purchase by the Texas Prison Commission, without the approval of the Legislature, of a mill and site, part of the consideration being land on which the mill was situated, it was held and approved by the Texas Supreme Court that there was no violation of V.A.C.S. Supp. 1922, Art. 6164, forbidding the purchase of "land" for the prison system of Texas, without the Legislature's approval, the purchase of the land being only incidental to the purpose of establishing a mill and factory for the said system as authorized by law.
In the quoted Herring case, the Supreme Court of Texas, in the face of an existing statute which forbade the purchase of land by the Texas Prison Commission, unless approval of the Legislature was first secured, looked upon the forbidden purchase of land as incidental to the authority granted to the commission to establish a mill and factory and upheld the act of the Commission. There exists no similar statute which would limit the land purchasing power of the Department of Public Safety. It appears, therefore, that the proposed purchase of suitable land for the erection of an authorized radio station by the Department of Public Safety under said circumstances may with greater certainty be determined as necessary and incidental to the power given it
*5 Hon. Homer Garrison, Jr., Page 5
It to install and operate such a station.
In the case of Terrill v. Sparks, 104 Tex. 191, 135 S.W. 519, the Supreme Court of Texas, in discussing an official's authority under an appropriation bill, quoted from Sutherland on Statutory Construction, as follows:
"Whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied. It is a well-established principle that statutes containing grants of power are to be construed as to include the authority to do all things necessary to accomplish the object of the grant. The grant of an express power carries with it by necessary implication every other power necessary and proper to the execution of the power expressly granted. Where the law commands anything to be done, it authorized the performance of whatever may be necessary for executing its commands."
Furthermore, it is a well known fact, that broadcasting stations cannot be located on any sort of land. Quoting from your letter: "For efficient transmission of messages by radio, it is necessary that the serial and ground system be erected on certain types of soil. . . ." It is only reasonable to impute that the Legislature was sufficiently informed in these matters when it created the power in the Department of Public Safety to install and operate a radio station, and provided appropriations to install and operate same. In view of the fact that the Legislature did not attempt to specify where the station should be located and did not confine it to any particular ground, the Department of Public Safety was authorized necessarily to ascertain for itself suitable land for such purposes and to pay for same with appropriations granted it.
Under the emergency circumstances of the case and in the light of the statutes authorizing the establishment of a police radio broadcasting system, it is our opinion that the purchase of suitable land on which to erect a radio station for the Department of Public Safety is necessary and incidental to the purposes of preventing crime, detecting and apprehending law violators, and for proper enforcement
*6 Horn Homer Garrison, Jr., Page 6 of the powers of your department, that the same is authorized, and the money appropriated in Item 106 of the Department of Public Safety appropriation (Senate Bill 423, p. 1231, 47th Leg., 1941) may be used for the purchase of said suitable land.
You will understand, of course, that we have not considered and that it is not within our province to consider the advisibility of this purchase from a financial standpoint, but have only considered and passed upon the legal right of the Department of Public Safety to purchase suitable land in view of the circumstances set out in your letter under the law as it now exists.
Yours very truly ATTORNEY GENERAL OF TEIAS
By (s) Robert E. Repke Assistant
By (s)Chester E. Ollison
REX 1 nW
APPROVED SEP. 8, 1941 (s) Grover Sellers
Pirst Assistant Attorney General
APPROVED Opinion Committee By B. W. B. Chairman