I
Honorable Price Daniel Opinion No. WW-349
Governor of Texas
Capitol Station Re: Validity of proposed
Austin, Texas contract between the
State Building Commls-
sion and the Texas State
Historical Survey
Committee and questions
relative to certain
appropriations to the
State Building Commis-
sion from which the
consideration of the
Dear Governor Daniel: contract Is to be paid.
You have aubmitted for our consideration a proposed
contract between the State Building Commission and the Texas
State Historical Survey Committee which contract, omitting
the formal parts, reads as follows:
"This CONTRACT is made and entered Into, In
quadrupllcate originals, on the day of
1958, by and between the State Building
?%%ii&lon and the Texas Historical Survey Commlt-
tee, pursuant to the authority provided in Senate
Bill No. 134, Acts of the 54th Legislature, 1955,
Regular Session, Chapter 514, (codified in Vernon's
Civil Statutes as Article 678m), Senate Bill 426
of the 55th Legislature (Regular Session) and
House Bill 62 of the 55th Legislature (Regular
Session).
"The Texas State Historical Survey Committee
agrees to perform the following services for the
State Building Commission for a period of
years, beginning , 1958 and en-on
f 193-*
"(1) Locate the graves of the Heroes of the
Texas War for Independence and prepare recommenda-
tions for properly marking them.
Honorable Price Daniel, Page 2 (WW-349).
"(2) Work with the State Buildfng Commls-
sion, as the Commission directs, In planning for
the Vicksburg monument to Texas Confederates, In
the proper designation of the new Supreme Court
Bufldfng as a Confederate Memorial and In the
restoration of the Old Land Office Building.
“(3) As needed In connection with (1) and
(2) above determine the names of Texas Heroes of
the Confederate States of America and the Texas
War ror Independence and substantiate their
Inclusion in this category,
"(4) Provide consultant servic:sand advice
as to the plas,sof the State Archives and Library
Building.
“(5) Determine the condition of memorials
and monuments erected by 'rheCammissIon of Control
for Texas Centennial CelebPatfons and make recom-
mendations for their repair and relocation where
necessary continuing to eacourage local restora-
tion and preservation of these markers and sites.
“(6) hrrom any other services necessary
to carry o-atthe histcrloal provisions 0r Senate
Bfll No. 134, Aets of the 58th Legislature, 1955,
Regular Sessfon, Chapter 514, (erudirfe’3 fn Vernon's
Civil Statutes as APtfele 678m), Senate Bfll 426
of the 55th Legislature (Regular Sessfon) and
House 1311162 of the 55th Legislatup; (Regular
Session).
"The State Building Commission agrees to pay
the Texas State Historical Survey Committee the
SW~0r per month for a perfod of
- (jgbegfnning
- on the day of
1958. Such p?qmentsBhall be
paid monthly by'warrants drawn by the Cumptpoller
or Public Accounts 9r the State or Texas upon the
State Treasurer out of funds appropriated to the
State BuuildlngCommlsslon for such pzpoae by the
Legislature of the State of Texas.
"The Texas State HfstsrZcal Survey *:ommittee
agrees to submit to the State B-&ldirigCcrpmlssion
monthly statements, in triplfcate, aecompanfed by
Honorable Price Daniel, Page 3 (W'W-349).
an affidavit that the contracted servlces have
been performed and that the monthly payment la
due. The first payment provided herein shall
be paid on 1958, and sub-
sequent payments shall Fe-i&e on the first day
of each month thereafter for the term of this
contract, or not exceeding thirty days after the
due date.
"The State Building Commission shall have
the right to cancel and terminate this contract
by giving written notice to the Texas State Hla-
topical Survey Committee at least thirty (30)
days prior to the cancellation date stated in the
notice of cancellation."
The questions you submitted for our consideration
we quote from your letter of January 16, 1958:
"Will you please inform me whether or not
this contract may legally be executed, assuming
of course, that the funds Involved do not exceed
those appropriated to the Building Commission.
"If you rind that this contract may be
executed, may the funds be paid from Item 4, 7,
8, 9, or 10 of the appropriation to the tiildlng
Commission In K.B. 133, 55th Legislature."
We have exsmlned carefully the statutes of the
State of Texas relative to the authority of the two agencies
to enter into this contract, and we find authority for this
contract In Article 678m, Vermont8 Civil Statutes; S.B. 426,
Acts 55th Leg., Regular Session, 1957, Ch. 500, p. 1460,
codified In Vernon's Annotated Civil Statutes as Article
6145a; and H.B. 62, Acts of the 55th Leg., Regular Session,
1957; Ch. 274, p. 615, codified In Vernon's Annotated Civil
Statutes as Article 678m-2. It la our opinion that the
duties which are to be performed by the Texas State Hlstorl-
cal Survey Committee constitute a part of the duties of the
State Building Commission whhichmay legally be delegated to
the Texas State Historical Survey Committee by contract.
However, we have some question as to the authority
of the State Building Commission to agree to pay to the Texas
State Historical Survey Committee a definite sum per month
for a period of years without a requirement in the contract
Honorable Price Daniel, Page 4 (WW-349).
that all of said amount be expended for the services set out
In the contract, or In the altematlve, that payment for the
services be made on the basis of the actual or estimated
cost to the Texas State Historical Survey Committee. The
contract as submitted to us does not require the performance
of services commensurate with the amount of money to be paid.
As far as the provisions of this contract are concerned, the
Texas State Historical Survey Committee could perform ser-
vices costing it $100 a month , and yet receive payment in
the amount of $500 per month from the State Building Commls-
slon. It is our opinion that when one state agency contracts
with another state agency for the performance of services,
the money to be transferred or paid in exchange for such
services should be paid on the basis of an approximation of
the actual costs of such services. The Legislature In
enacting the Inter-Agency Cooperation Act, Article 4413(32),
V.C.S., adopted this requirement for all inter-agency con-
tracts under that act. In Section 3 of the above Article,
it Is provided:
I,. . . The actual cost of rendering the
services or the nearest estimate of the cost that
Is practicable shall be reimbursed . . . *
This Act further provides that thepe must be a written agree-
ment between the two agencies specffyfng:
" . * . the bases for calculating relmburs-
able costs, and the maximum amount of the costs
during the time period covered by the agreement."
We think these requirements are sound and should be
applied to all contracts between state agencies. Accordingly,
we are of the opinion that this contract In its second and
third paragraphs from the end, should be reformed so as to
follow the requirements of the Inter-Agency Cooperation Act
even though other authority for the contract exists In
Article 678m, V.C.S. With the exception of the change
Indicated with regard to costs, we think the contract to be
valid.
Considering now which of the line-item approprla-
tlons to the Texas Building Commission mentioned by you In
your letter may be used to make the payments required under
the above contract, it Is our opinion that line-items 9 and
10 by their designations are unrelated to any service to be
performed under the proposed contract, and are, therefore,
Honorable Price Daniel, Page 5 (WW-349).
unavailable for payment of any of the sums due under such
contract. Line-item 4 fs restricted to use for salarfes or
professional services. As such, we think this appropriation
may be used for payment for each of the servfees to be
rendered under the contract, since such services are in
effect proressional services and are accomplished by payment
of salaries to professional people.
Line-item 7 is restricted to the repair and
relocation of exfstlng historical markers. It fs our opinion
that the appropriation under thfs lfne-ftem may be used for
the payment of services to be rendered ur,dez=
numbered para-
graph (5) of the contract, and ,underparagraph (1) of the
contract to the extent the services to be rendered under the
latter papagraph concern existfng markers. It 1s our further
opinion that the appropriation under line-item 8 may be used
only In the completfon of the Supreme Court Building as the
first building to be erected by the Building Commission under
the terms of Section 10 of Article 678m, V.C.S. As such,
this appropriatfon may be used only far r:a:mentfor services
rendered under numtered paragraph (2) "In ihe proper deslgna-
tlon of the new Supreme Court Building as a Confederate
Memorial", and under numbered paragraph (3) cnly Insofar as
the services described fn that paragraph pertain to the
designation of the new Supreme Court Bullding as a Confederate
Memorial.
We cannot tell what appropriations may be used for
the services to be performed under numbered paragraph (6) In
the contract because of the generality of this paragraph.
The services performed under this Section must be applied to
the authorizations for expendftures made by the Appropriation
Act, and payment made from the prcper line-item as described
above.
SUMMARY
The proposed submitted contract is valid
with the exception of the second and
third paragraphs from the end, which
such paragraphs should be rewritten to
provide for payment on a basis approxi-
mating actual cost, rather than on a
specific sum basis. Line-ftems 4, 7
and 8, Texas Building Commission App~o-
prlation, H.E. 133, Acts.55th Leg.,
Honorable tifee Daniel, Page 6 (W-349).
Regular Session, 1357, Ch. 385, p. 870,
may be used for the speefffc services
stated, but line-Items 9 and 10 are
unrelated to any duty to be perf0Ilne.d
ur,dertinecontra-t and ape not avail-
able for latent of the contract.
Yours very t.ruly,
WILL WILSON
Attorney General of Texas
JHM:wsm:jl
APPROVED:
OPINION COMMITTEZ
Geo. P. Blackburn, Cna4rman
John Reeves
J. C. aavis, Jr.
Leonar3 Passmore
FGZA'IEWED
FOR THE A?TORNEY GENER-&L
BY:
w. v. Geppert