Untitled Texas Attorney General Opinion

Hon. John H. Winters Executive Director State Department of Public Welfare Austin, Texas Opinion No. v-1357. Re: Availability of funds appro- priated to the Waco State Home in the general approprla- tion bill for the rental of pasture land and for the pur- chase of livestock for the bi- Dear Sir: ennium ending August 31, 1953. You have requested the opinion of this of- fice relating to the authority of your department to expend certain moneys appropriated to the Waco State Home in the general appropriation bill for the bien- nium ending August 31, 1953. Your specific questions are as follows: (1) Is there an appropriation to the Waco State Home which may be expended for the rental of 200 acres of pasture land? (2) Is there an appropriation which may be expended for the purchase of cows ma a bull for the dairy herd? In 1951 the Legislature transferred the con- I trol and supervision of the Waco State Home from the Board for State Hospitals and Special Schools to the Department of Public Welfare. This act provides In part: “Sec. 5. The State Department of Public Welfare is hereby directed to set up a school and training program for the children in the institution named in this Act so as to enable the children to become self-supporting through training and edu- cation in accordance with the capability Hon. John H. Winters, page 2 (V-1357) of the individual child. Such training program may be set up within the insti- tution or it may require maintenance and support of the children in one of the State institutions of higher learning. The moneys appropriated for the mainten- ance and support of the institution may be used for this purpose in accordance with rules and regulations and limlta- tions as prescribed by the State Depart- ment of Public Welfare. “Sec. 6. Nothing in this Act shall be construed to delimit the responslblli- ties of the institution named herein for the care of the children entrusted to it as provided in the General Statutes creat- ing the institution and as provided in subsequent amendments prescribing the du- ties and responsibilities of the institu- tion for the care of such children.” H.B. 540 Acts 52nd Leg., R.S. 1951, ch. 485, p. 860. The following line item appropriations to the Waco State Home (H.B. 426, Acts 52nd Leg., R.S, 1951 ch. 499, p. 1228, at ,p. 1273) are necessarily involved in a determination of the questions asked: “For the Years Ending August 31, August 31, 1952 1953 27. Stationery, printing, gasoline, 011, grease, recreation, amusement, drugs, medical, hospi- tal and laboratory supplies, clothing, dry goods furnishings, feed, see d , groceries, meats, perishables, and miscellaneous sup- plies (out of General Revenue Funds) $112,700.00 $112,700.00 Hon. John H. Winters, page 3 30. Bond premiums, post- age, telephone tele- graph, heat, ljght, water power and trave i expenses, out of local funds 14,500.00 14,5oom 31. Maintenance and re- pairs, out of local 10,000.00 20,000.00 funds 32. Capital Outlay--Im- provements and Equip- ment, out of local funds 6.000.00 2.OOO.OQ 33. Total--Out of Local Funds 30,500.00 36,500.00" Both of your questions are related to the authority of the Home to acquire and maintaina dairy herd for the use and benefit of the children of the Home. The authority of eleemosynary Institutions to maintain dairy herds or carry on other agricultural pursuits for the purpose of economical operation as well as providing constructive labor and vocational instruction for inmates of the institutions is well established. Att’y Gen. Ops. O-2738 (1940) and O-5439 (1943). The Waco Home has maintained a dairy herd for several years for the benefit of the Home and since 1945 has rented the pasture land here involved. That the Legislature approved the maintenance of a dairy herd Is shown by the fact that in 1949 it appro- priated $lO,COO to be expended for an addition to and equipment for a creamery. H.B. 321 Acts 51st Leg., R.S. 1949, ch. 553, p. 1068 at p. $075. You state that on September 1, 1951, ihe Comptroller approved a warrant for a pasture rent Installment and charged it to the appropriation in Line Item 27, sunra. In prior years the Comptroller has approved the pasture rental warrants, although there has never been a specific “pasture rental” appropriation. This past department; al construction has oersuasive value. Isbell v. ~Gulf Union Oil Co., 147 Tex. 6, 209 S.W.2d 7'62 (1948). However, you state the Comptroller Is now of-the opln- ion that there is no appropriation from which the pas- ture rental may be paid. Hon. John H. Winters, page 4 (V-1357) You state that the 200 acres of pasture land are necessary to maintain a herd which will supply sufficient milk and milk products for the normal requirements of the Home and that these products are necessary to the health and welfare of all the children in the Home. In view of the above facts, we must as- certain if any of the line Item appropriations to the Waco State Home may be expended for pasture rental. Section 10(d) of the General Provisions following the appropriations to the various State hospitals and special schools provides: l’(d) All items herein appropri- ated to the several institutions in- cluding the Central Office, for bond premiums, post office box rent m rental, postage, telephone, telegraph, heat, water, light, power, travel ex- penses, maintenance of structures and equipment, and capital outlay expendi- tures for improvements ana equipment, shall be paid from the Board Local Fund. It is further provided that the items herein enumerated shall not be supplemented from any other funds ap- propriated in this Article, except as provided in Section 7(a) and (b) and Section 9, as provided in this Article.” (Emphasis added.) It will be noted that the appropriations out of local funds, Line Items 30, 31, 32, sunra, do not include a “land rental” appropriation. There- fore, the rental expense cannot come from local funds. Unless Line Item 27, subra, makes provision for the payment of pasture rental, there Is no appropriation from which pasture rental may be paid. The only categories in Line Item 27 which might include pasture rental are “feed” and “miscel- laneous supplies.” l’Pasturage’l is a proper, but now obsolete, meaning for the noun “feed.” Webster’s New International Dictionary (2d Ed. 1938). Article 5502, V.C.S., gives livery stable owners a lien for “feed” and also a lien for “pasturage.” However, this dis- tinction is not controlling here, since it grew out . Hon. John H. Winters, page 5 (v-1357) of the common-law theory that a livery stable owner did not hava an agist-er’s or ‘“pasturage” lien. 3 C.J.S. 1118, Animals, Sec. 21. This statute was adopted to give a liens in either s.ituation. In a situation other than for the enforcement of a stat- utory lien, which is to be strictly construed, the word llf eed” might includes “pasturage.” El Paso Cat- L n Co. of El Paso. Tag.. v. Bug&, 228 Pac. (ir Mex. Sup. 1924). The other category, “miscellaneous .mJpplies,ll is one of a.very general nature, Its inclusiveness depending primarily upon the history, fact situation, and type of.buslness’or operation in connection with which, it is used. Conner v. Littlefield, 79 Tex. 76, I5 S.W. 217 (1890). Our’Texas courts have approved the following, definition of l’supplylt: “One def inl- tion of ‘supply1 is to ‘furnish with what is wanted.’ Webster’s Dictionary. Other definitions are: ‘AWIl- able aggregate of things needed or demanded; . o . anything yielded or afforded to meet a want; the act of furnishing what is wanted. I 37 cyc. 607." Qp ton Brldseuort Mach. CQ., 33 S.W.2d 787, 789 (Texy&v.App. 1930, error ref.). The provision is thus seen to be very broad and general, but it was intentionally made so by the Legislature so that the ‘necessary items for the health, welfare, and school- ing of the children in the Home could be purchased when the need for the. items arose and such items were not within some other specific appropriation. From the foregoing, we think the Leglsla- ture, Intended for the pasture rental to be paid from Line Item 27 funds. In view of the past history of the Waco State Home’s maintenance of a dairy herd, of the creamery building and equipment appropriation, and the departmental construction which authorized the issuance of warrants for the payment of pasture rental we can not hold that the Legislature has change d its policy upon the sole basis of its failure to make a specific “pasture rental” appropriation, there having been no prior practice so to specify, The answer to your second question depends upon whether livestock may be purchased from either Line Item appropriations 31 or 32, sunra. Section 10 (d) sunra, of the General Provisions provides in par 4.. Hon. John H. Winters, page 6 (V-1357) n . . . maintenance of structures and equipment, and capital outlay ex- penditures for improvements and equip- ment, shall be paid from the Board Local Fund.” This definition more specifically enumer- ates the Items for which Line Items 31 and 32 may be expended, and by its terms eliminates the possi- bility that livestock may be purchased from Line Item 31 maintenance funds. However, we are of the opinion that Line Item 32 funds may be expended for livestock necessary to develop a herd capable of producing the milk necessary for the requirements of the Home. The dairy herd is a permanent asset and therefore a capital asset of the Home, and the contemplated expenditures are, in our opinion, wlth- in the scope of the capital outlay appropriation. The appropriation made to the Waco State Home by Line Item 27 (H.B. 426, Acts 52nd Leg. R.S. 1951, ch. 499, p. 1228 at p. l2+3) may be expended for “pas i ure rental,” and the a propriation made by Line Item 32 (H.B. f:26, supra, at p. 1273) may be expended for the pur- chase of livestock necessary to develop a dairy herd capable of supplying the needs of the Home. Yours very truly, APPROVBp : PRICE DANIEL Attorney General C. K. Richards Trial & Appellate Division Jesse P. Luton, Jr. By I: v$$*u Reviewing Assistant E. Way Thode Assistant Charles D. Mathews First Assistant RWT:wb