Case Information
*1 The Attorney General of Texas
December 7, 1982 MARK WHITE
Attorney General
Mr. Kenneth H. Ashworth Opinion No. MN-520 Supreme Court Building Conmlissioner
Telex P. 0. Box 12546 5121475-2501 Austin, T&co&r 9101674-1367 TX. 76711. [51214750266] [2546] Austin, Texas 78711 Coordinating Board P. 0. Box 12788, Capitol Station Texas College and University System struction project is exempt from a requirement of co- Re: Whether university con- ordinating Board approval where it is constructed partly 1607 Main St.. Suite Dallas. 2141742-6944 TX. 75201-4709 [1400] HOUSe Called Session, Sixty-seventh from funds appropriated by Legislature Bill No. 1 of 2nd 4624 Alberta Ave., Suite 160 Dear Mr. Ashworth: El Paso, TX. 79905.2793 915/533-3464
You have requested our opinion as to whether certain funds may be
expended for college construction without the approval of the 1220 Dallas Ave., Suite 202 Coordinating Board. Hou.s,on, TX. 77002.6966
7131650.0666 In Attorney General Opinion MN-519 (1982), we said that approval
by the Coordinating Board is not required in order to expend any of the funds appropriated in House Bill No. 1, Acts 1982, Sixty-seventh 606 Broadway, Suite 312 Lubbock, TX. 79401-3479 Legislature, 2d Called Session, chapter 1, at 1. The pertinent 6061747-5236 portion of the appropriation provides: Section 1. In addition to sums previously 4309 N. Tenth. Suite B appropriated, the following amounts are appropri- McAllen, TX. 76501-1665 512/662-4547 ated to the named institutions of higher education from the general revenue fund and other funds that may be specified for the purpose of constructing
200 Main Plaza, Suite 400 permanent improvements, acquisition of land, and San Antonio. TX. 76205-2797 major repair and rehabilitation projects as 5121225-4191 listed, and those or improvements are projects hereby authorized. Those institutions for which An Equal Opportunity/ new construction only is authorized may use Affirmative Action Employer appropriated funds for major repair and
rehabilitation. There follow specific appropriations for seventeen named institutions, together with details regarding the purpose of the expenditures. The first two appropriations, for example, provide as follows: *2 Mr. Kenneth I-l. Ashworth - Page 2 (MW-520)
1. The University of Texas at Arlington
New Construction:
a. Thermal Energy Plant b. Architecture Building C. Engineering Building Major Repairs and Rehabilitation: d. Renovation of Cooper Center TOTAL APPROPRIATION $25,000,000 2. Texas Tech University
New Construction:
a. Library Basement Alterations for Computer Center
b. South Utilities Tunnel Interconnect C. Completion of Subbasement in Art Building Major Repairs and Rehabilitation d. Industrial Engineering Building e. Civil and Mechanical Engineering Building TOTAL APPROPRIATION $5.900.000 Section 2 of House Bill No. 1 then states:
Funds appropriated in this Act may be expended only after the advance approval of the Coordinating Board, Texas College and University System, in accordance with the statutory responsibilities of the board. A project shall not be initiated until the aovernina board of the institution has determined that there are sufficient funds available to complete the project. (Emphasis added).
Attorney General Opinion MN-519 (1982) held that section 61.058 of the Education Code obviated the need for Coordinating Board approval in the situation presented there. That statute provides, in pertinent part:
To assure efficient use of construction funds and the orderly development of physical plants to accommodate projected college student enrollments, the board shall:
. . . .
(8) approve or disapprove all new construction and repair and rehabilitation of all building and facilities at institutions of higher education financed from any source other than ad valorem tax receipts of the public junior colleges, provided that:
. . . .
(D) the requirement of approval or disapproval by the board does not aeely to any new construction or major repair and rehabilitation project that is specifically approved by the legislature.
Since the legislature in House Bill No. 1 has specifically approved each of the "new construction" and "major repair and rehabilitation" projects funded by that statute, Attorney General Opinion MW-519 (1982) concluded that Coordinating Board approval is not required for any of the projects. You now ask whether approval is required where funding for the projects is derived in whole or in part from non appropriated funds.
Section 61.058(D) provides that Coordinating Board approval is not necessary for any "Project that is specifically approved by the 1egislature.u (Emphasis added). As we have noted, section 1 of House Bill No. 1 declares that "those projects or improvements are hereby authorized." The Supreme Court has held that a rider which authorizes a university to acquire and construct various projects is not an "item of appropriation," and therefore, is not subject to veto by the governor. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 599 (Tex. 1975). We conclude that the terms of House Bill No. 1 itself authorize the particular "projects" referred to therein and that, as a result, section 61.058(D) precludes the necessity of Coordinating Board approval in those instances.
SUMMARY Approval by the Coordinating Board of the Texas College and University System is not required for any project authorized in House Bill No. 1, Acts 1982, Sixty-seventh Legislature, 2d Called Session, chapter 1, at 1, for %ew construction" and "major repairs and rehabilitation" at any of seventeen named institutions of higher education, regardless of the source of funding of any such project.
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WHITE Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Kate Conroe
Rick Gilpin
Patricia Hinojosa
Jim Moellinger