EA NE GENERAL
December 6, 1965
Honorable Robert S. Calvert Opinion No. C-559
Comptroller of Public Accounts
Austin, Texas,,78711 Re: Whether a 1965 Model
Twin Cessna Aircraft
310-J may'be paid for
out of funds appropri-
ated to the Texas
sparksand Wildlife
Commission under
House Bill No, 12 ~
Acts 59th Legislaiure,
Dear Mr. Calvert: 1965.
Your request for an opinion asks the following
question:
Hay a 1965 Model Twin Cessna Aircraft
310-J be paid for out of funds appropriated
to the Texas sparksand Wildlife Commission
under House Bill No. 12, Acts 59th Legislature,
lg65?
Article V Section 21a of House Bill No. 12, Acts
of the 59th Leglslagure, provides as follows:
"Sec. 21. PASSENGER VEHICLES. a. None
of the moneys appropriated in this Act may be
expended for the purchase of a passenger car
or of airplanes designed for passenger trans-
portation unless authority to do so Is stated
by the language of this Act. Moreover, none
of the moneys appropriated in this Act may be
expended for the maintenance or operation of
any State-owned passenger car or airplane de-
signed for passenger transportation unless
the authority to do so is stated by the language
of this Act."
Section.20 of Article V of House Bill No. 12 is also
pertinent to the purchase of an airplane. It provides:
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Hon. Robert S. Calvert, page 2 (c-559)
"Sec. 20. AIRPLANES. None o,f the moneys
appropriated by this Act may be expended'for the
purchase of'an airplane, or for the repair,of an
airplane costlng~in excess of Pive Thousand Dollars
($5jooo), without the prior written ~approvalof
the Governor after obtaining the a~dviceof the
Legislative Budget Board.
"None of the funds appropriated in this,Adt
may be expended by a state agency for operation
or maintenance of a state-owned airplane unlbss
the agency files.a reportwith the Legislative
Budget Board showing the names of places-to which
flights were made, the name of the'pllot, and the
name or names Of any passengers on each such flight,
and the offlcia-lbusiness purposes of each such
flight. Such report shall be certified as to
accuracy by the executive head of the agency and
shall be filed by no later than October 1 for the
preceding fiscal year."
In accordance with Section 20 of Article V, the prior
written approval for the purchase of a Cessna 310 class air-
craft for the Parke and Wildlife Department was ~secured from
Qovernor John Connally with the express notation:
$9 .I am today:approving; upon the advice
of the'ldglslative Budget Board the purchase
of a twin-engine plane equal to'or In the
Cessna 310 class through the State Board of
Control from current funds . . ."
.that the plane will be used to
further the Parks and Wildlife Programs of the
Department and the plane will,not be used as
a passenger plane except on official state
business as approved by the Commission or the
Executive Director as to its assignment and
location."
Although, Section 20 above quoted is couched in
negative language' it necessarfly implies thit the moneys
appropriated by this Act may be expended for the purchase of
an airplane and for the repair of an airplane costing in
excess of Five Thousand Dollars ($5,000) with the prior written
approval of the Governor after obtaining the advzce of the
Legislative Budget Board.
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Hon. Robert S. Calvert, pag e 3 (C-559)
The question arises, whether Section 21 of Article
V Is applicable. In order to -determlne'this the phrase
"airplanes designed for passenger transporation" must be
analyzed. In a prior opinionof this office the above phrase
was construed'as meaning, ". . .reasonably adapted, structurally,
for carrying passengers. . . .', Letter Opinion No. MS-107
l;l.z3). This office specifically overrules this prior construc-
"Designed" Is defined by Webster's New World Dictionary
of the American Language as follows:
"designed,'adj. gp. of deslg_nT,formed or
done according to design; planned; purposed;
intended."
"Designed" ,ls de'flnedin the fourth edition of
Black's Law Dictionary as follows:
.taken to be employed for a particular
r2ruiis suppl;i;;nded, adapted or designated."
It is the opinion of this office that the word
"designed" as used in Section 21 of Article V, House Bill No.
12, Acts of the 59th Legislature, is synonymous with the words
"purposed" and "intended." -'Therefore the phrase may be
interpreted to.read 'I..
. .airplanes 'Intended' for passenger
transportation. . .'I.
It is the intent or purpose of the Department pur,-
chasing an airplane which determines whether or not Section 21
of Article V is applicable. not the structural design of the
airplane. This construction is supported by Williams v. State,
264 S.W.2d 711 cTex.Crlm. 1954) which- while construina the
phrase ". ',poiicy book- ,- 'designed or adaptable f& use
in connection with a policy game",' defined "designed" as
follows:
I!
.The terms 'designed' and 'adaptable,'
are not defined in the statute. As there used,
the term 'designed' means other thipgs,
'intended', 26 C.J.S. p. i2;Tng . .
"It is apparent therefore, that by the use-
of the term 'designed' an Intent on the part of
the possessor of the p&cy book and policy slip
is written into the offense.
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.
Hon. Robert S. Calvert, page 4 (C-559)
"It is, therefore, immaterial that the book
here involved was, upon its face, nothing more
or less than a common notebook and the slip merely
a blank piece of paper. If the notebook and slip
of paper were,possessed by appellant with,the intent
to use them in playing the game of policy, the
unlawful act condemned by the statute has been
shown."
Other jurisdictions have reached a slmiliar result:
Bruce v. Slbeck 78 P.2d 741 Cal. Dlst. Ct. of Appeals 1938
hearing denied 6y Supreme Ct.f; City of'Akron v. Stouffis 121
N.E.2d 307; 96 OA 105, Ohio Ct. of ~A‘1.
pea a;
Darriagtonj 221 Mlch. 571, 191 N.W. f;
31 (1923).
Furthermore, it would be,an impractical and uneconom-
ical limitation on the various departments to require them to
purchase automobiles and airplanes which have been specially
constructed not to transport passengers.
Consequently it Is the opinion of this office that
since the aircraft is intended to be used by the Parks and
Wildlife Commission in connection with its statutory duties
and responsibilities as they relate to the enfordement of
the'game and fish laws and carrying out the operations of Its
park servlces, the aircraft is not designed for passenger
transporatlon'within the meaning of Section 21 of Article V,
House Bill No. 12, Acts 59th Legislature, 1965.
Paragraph 12, Article 111-108, House Bill No. 12,
Acts 59th Legisl,ature,1965, appropriates funds for the
enumerated purposes:
"12 Consumable supplies and materials
current and recurring operating expense (exciud-
ing travel), malnten&k and operation of
passenger cars and aircraft, capital outlay
including passenger cars." (Emphasis addend)
The Parks and Wildlife Commission may purchase an airplane as
part of its capital outlay and may then maintain and operate
it under the above provision.
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. .
Hon. Robert S. Calvert, page 5 (C-559)
SUMMARY
Section 21 of Article V, House Bill No. 12,
Acts 59th Legislature 1965 does not prohibit
the purchase of a 1963 Model Twin Cessna Aircraft
310-J where It is the intent of the Parks and
Wildlife Commission to use it In the performance
of Its duties and for official State business and
not as a-passenger plane. Funds may be expended
from paragraph 12, Article 111-108, House Bill
No. 12, Acts 59th Legislature 1965, for the pur-
chase, maintenance and operation of the airplane.
Very truly yours,
WAGGONER CARR
Attorney General
BY
Wade Anderson
Assistant
WA:ml
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. 0. Shultz
Bob Flowers
James Broadhurst
APPROVEU FOR THE ATTORNEX GENERAL
By: T. B. Wright
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