Untitled Texas Attorney General Opinion ( 1952 )

August 29, 1952
Hon. Homer Garrison. Jr., Director
Texas Department of Public Safety
Austin, Texas Opinion No, V-1521
Re: Authority of Texas ,Depart-
ment of Public Safety to use
appropriated funds for finish-
ing north wing of new head-
Dear Sir: quarters building.
You have requested an opinion of this office concerning
the expenditure of certain funds appropriated fur placing in opera-
tion The Motor Vehicle Safety-Responsibility Act, House Bill 219.
Acts 52nd Leg.. R.S. 1951. ch. 498, p- 1210. In order to properly
understand the question presented,it is necessary to discuss the
background material leading to the facts out of which your ques-
tion arises.
Senate Bill 439, Acts 51st Leg., R.S. 1949, ch, 439, p0 882,
authorized the Texas Department of Public Safety to construct a
new building to house the various divisions of that department. In
letting the contracts for this new building.consideration was given
to the normal expansion of the divisions and sections of the De-
partment. but you state:
1,
D 0 D No provision was made for the inclusion
of finished space for additional sections or divisions
of the Department, except there were excavated areas
in the unfinished parts of the north and south wings of
the building on the basement level. These areas were,
of course, inclosed by walls and roof. but with dirt
floors. No provision was made for the installation of
electrical lines, telephone lines, plumbing facilities,
heating, ventilation, or cooling. as it was apparentat
the time that this section of the building would not be
occupied?
Subsequently, in order to comply with House Bill 219, supra,
it became necessary to establish a Motor Vehicle Safety-Responsi-
: bility Division of the Texas Department of Public Safety,and it is your
desire that this division be provided space in the new building. In
order to provide this space,it will be necessary to finish a part of the
, :
Hon. Homer Garrison, Jr., page 2 (V-1521)
north wing of the building. which is now unfinished. The division
in question is now being housed in the Department of Public Safety
Headquarters Building at Camp Mabry, Austin, Texas. Your ques-
tion arises out of an attempt to secure funds with which to perform
this necessary finishing work.
As originally introduced.House Bill 219, supra, provided
that the act was to become effective on September-l. and
$300,000 was appropriated for defraying the expenses of opera-
tion from the effective date to August 31. 1952. House Journal,
52nd Leg.. R.S. 1951, pm 3133. Subsequently,the Act was amended
so that the effective date was changed to January 1, 1952. but the
appropriation for the first year of operation remained the same.
Senate Journal, 52nd Leg.. R.S, 1951, p. 1364. The effect of this,’
you state, is to provide $100,000 in excess of the actual operating
expenses of the Motor Vehicle Safety-Responsibility Divisionwhich
could be used in providing quarters for the division in the newbuifd-
ing. Concerning the use to be made of this money you state:
Y
0 0 D This money, of course, will not be used to
construct a building to house this division but to finish
the unfinished section referred to in the north wing of
‘the building by providing lighting, plumbing, heating,
cooling and by the construction of a floor and the neces-
sary partrtrons.” (Emphases ours.)
The appropriating portion of House Bill 219, supra, is Sec-
tion 37, which provides:
‘There is hereby appropriated out of the Opera-
tor% and Chauffeur’s License Fund such money as
may be necessary for the purpose of defraying the
expenses of this Act through the biennium ending
August 31. 1953. not to exceed the sum of Three Hun-
dred Thousand Dollars ($300.000) for the fiscal year
ending August 31, 1952 and not to exceed the sum of
Two Hundred Thousand Dollars ($200,000) for the
fiscal year ending August 31, 1953. So much money
as is necessary to administer this Act shall be used
for the employment of necessary clerical and admin-
istrative help and for defraying the necessary ex-
penses incident to travel, rental and any judicial hear-
ings relative to court review, and including the print-
ing of all necessary forms required be this Act, and
including the purchase through bids taken by the Erd
of Control of all necessary furmture. fixtures and
Hon. Homer Garrison, Jr., page 3 (V-1521)
equipment of any,nature; provided the number of
employees and the salaries of each shall be con-
sistent with the number of employees and the sal-
aries~ of each as ,fixed by the Legislature in the
Biennial Departmental Appropriation Bill ,for like
service. The Director of the Department shall
prepare a budget covering operations through Au-
gust 31, 1953, and submit the same for ~approval of
the Legislative Budget Board and no warrants may
be issued by the Comptroller until the same shall
have been approved. Such budget~shall be itemized.”
(Emphasis ours,)
Although not controlling. we do think it significant to
note that in accordance with the provisions of Section 37, supra,
the Department ~of,Public Safety presented to the Legislatimd-
‘get Board for its approval the proposed budget of the Department
on November 1, 1951. The Legislative Budget Board, composed of
Lt. Governor Ben Ramsey. Chairman. Speaker Ruben Senterfitt,
Vice-Chairman, Senators Howard A. Carney. Jimmy Phillips,
Gttis E. Lock. and Keith Kelly, and Representatives Jim Lindsey,
Albert Jones, Ray Kirkpatrick, and W. H. Rampy. approved the
budget, one item of which provides as follows:
‘“That adequate quarters and facilities may be
provided for the Safety-Responsibility Division in
the new Headquarters Building for the Department
of Public Safety. now under construction, as author-
ized by Senate Bill 439. Regular Session. 51st Legis-
lature. the Department is authorized to supplement
the aforementioned building fund in the amount of
$100,000 from the funds appropriated for the fiscal
year ending August 31. 1952, by House Bill 219, passed
by the Regular Session of the 52nd Legislature.’
Thus, it is to be ,seen that the Legislative Budget Board, composed
of members of the 52nd Legislature which enacted House Bill 219,
supra, undoubtedly construed the enactment as authorizing the ex-
penditure .of the $IOO.OOO.OO in question for the purpose of provid-
ing adequate office space for the Safety-Responsibility Division in
the Headquarters Building of the Department of Public Safety.
It being fundamental that money may be withdrawn from
the State Treasury only under a specific appropriation.1 the, sole
l/ Article VIII, Section 6, Texas Constitution.
Hon. Homer Garrison. Jr.. page 4 (V-1521)
question is whether Section 37 contains language which permits
the use of the funds appropriated for the purposes stated in your
opinion request. It is well settled that no particular form of
wording is required to make an appropriation,and all that is
necessary i authority for the expenditure and specification of
“2
the purpose.
A reading of the appropriating section of the Motor
Vehicle Safety-Responsibility Act reveals that the appropriated
funds may be used to purchase “fixtures ,and equipment of any
nature.* The term “fixture” has been often defined in the law.
It is said to be a general ruIe with regard to fixtures that things
personal in their nature which are fitted and prepared to be used
with real estate, and ar’e essential to its beneficial enjoyment,
become part of the soil and pass with it under a deed of convey-
ance, provided they are once annexed to the land and continue to
be so used.3
In Hutchins V* Masterson. 46 Tex. 551 (1877). the court
defined the term as follows:
“The word ‘fixture’ if a legal term, which Lord
Campbell seems to doubt, it is universally conceded,
is, as a substantive term, of modern origin. . . .
“It is said, the weight of modern authorities
establish the doctrine that the true criterion for
determining whether a chattel has become an im-
movable fixture, consists in the united applica-
tion of the following tests:
“~1st. Has there been a real or constructive
annexation of the article in question to the realty?
“2d. Was there a fitness or adaptation of such
article to the uses or purposes of the realty with
which it is connected ?
“3d. Whether or not it was the intention of the
party making the annexation that the chattel should
2/ National Biscuit Co. v. State, 134 Tex. 293. 135 S.W.2d
687 @40); Pickle V* Finley, 91 Tex. 484, 44 S.W. 480 (1898).
3/ Citizens’ Nat. Bank of Abilene v. Elk Mfg. Co., 29 S.W.
2d 1062 (Tex. Comm. App. 1930).
Hon. Homer Garrison, Jr., page 5 (V-1521)
become a permanent accession to the freehold?
-7 this intention being inferable from the nature
of the article, the relation and situation of the
parties interested, the policy of the law in re-
spect thereto, the mode of annexation, and the
purpose or use for which the annexation is made.”
The tests set out in the Hutchins case have been applied
in Texas and other jurisdictions many times. As a result, there
are decisions dealing with almost every type of property which
can become fixed to the realty in such a manner as to become a
part of the realty and hence a ‘“fixture.” We,therefore,mustlook
to these cases with particular .regard to the items which you
enumerate in your letter to determine if those items come with-
in the legal definition of “fixture’ as that term is used by the
Legislature in Section 37 of House Bill 219. supra.
It has been held that wiring which is used to convey elec-
tricity into a building is so attached to the realty as to become a
part thereof.4 Based upon the reasoning of the decisions with re-
gard to those materials necessary to provide lighting for a build-
ing, it becomes obvious that wiring and other materials which are
placed in a building so as to provide proper lighting are fixtures
within the le,gal definition of that term. They are ordinarily placed
in the walls or attached to the real estate in such a manner as to
necessitate damage both to them as well as to the real property
in any attempt to remove the lighting facilities from a building.
Plumbing, when installed in a building. has been held to
be a fixture and to become a part of the real estateo5 We think it
is necessary to apply this general holding to the fact situation pre-
sented here and on the basis of the reasoning of the decisions hold-
ing that plumbing is a fixture, reach the conclusion that the term
as used in Section 37 includes the plumbing necessary to finish the
north wing of the new building for the Department of Public Safety.
4/ Keating Implement & Machine Co. v. Marshall Electric
Lighrand Power Co., 74 Tex. 605. 12 SW. 489 (1889).
5/ Johnson v0 Pacific Land Co., 84 Ore. 356, 164 P. 564
(1917r In this case the court determined that the pipes and other
materials necessary to supply water to a building were fixtures
based upon: first, an annexation to the realty; second. their adap-
tation to use in the building; and third. the implied intention to
make the annexation permanent, See also. Annotation 81 A.L.R.
1440 (1932).
Hon. Homer Garrison, Jr., page 6 (V-1521)
There are numerous decisions to the effect that the an-
nexation of heating apparatus to the realty causes it to become a
part of the realty. Similarly, a unified heating plant knstalled in
a building is considered to be a permanent part of it. It has al-
so been held that the installation of pipes and other equipment
used to convey the gas from a utility company’s line to the stoves,
plates, and water heaters in a house makes those pipes and other
equipment fixtures and a art of the realty in the absence of some
js
contract to the contrary.
Air conditioning equipment has been held to be a fixture
which, when installed in a building, becomes a part of the realty.8
Similarly, it has been held in numerous cases that structures and
improvements, in the nature of paving, platforms, and flooring, are
fixtures and become a part of the realty.9
Based upon these authorities, we find that property neces-
sary to provide lighting, plumbing, heating, cooling. and to con-
struct floors and necessary partitions, are fixtures and when af-
tached to the real property become a part thereof. We.therefore.
conclude that the items which you enumerate in your request are
within the term “fixtures and equipment of any nature” as con-
tained in Section 37 of House Bill 219, supra. and consequently the
funds appropriated in that section are appropriated for the pur-
poses for which you intend their use.
SUMMARY
The Department of Public Safety may use the
funds appropriated in Section 37 of H.B. 219, Acts
52nd Leg.. R.S. 1951, ch. 498, p. 1210, for the pur-
pose of finishing an unfinished section in the north
6/ Young v. Hatch, 99 Me. 465, 59 A. 950 (1905); Capeheart
V. Foster, 61 Minn. 132. 63 N.W. 257 (1895).
7/ Harris V~ Harris, 174 S.W.2d 996 (Tex. Civ. App. 1943).
?;/ Nine Hundred Main, Inc. v. City of Houston, 150 S.W.2d
460 vex. Civ. App. 1941, error dism.).
9/ City of Savannah v. Standard Fuel Supply Co.. 151 Ga. 145.
106 SaE. 178 (1921). See also. Annotation 13 A.L.R. 1454 (1921).
Hon. Homer Garrison, Jr., page 7 (V-1521)
wing of the new Department of Public Safety Build-
ing by providing lighting, plumbing. heating, cool-
ing, and by the construction of a floor and neces-
sary partitions since that construction comes with-
in the term “fixtures and equipment of any nature’*
as used by the Legislature in appropriating the
funds.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED:
Mary Kate Wall BY
Reviewing Assistant
Assistant
Charles D. Mathews
First Assistant
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