Case Information
*1 ,-
The Attorney General of Texas
December 1, 1982 MARK WHITE
Attorney General
Honorable Roy Blake, Chairman Opinion No.MW-519 Supreme P. 0. BOX 12546 Austin, [51214752501] Telex Telecopier 9101674-1367 TX. 76711. Court Building 5121475.0266 [2546] Austin, Texas 78711 G-27-J, State Capitol Building Texas State Senate Senate Committee on Administration Re: Whether funds appropriated be expended without coordina- for college construction by second called session of the Sixty-seventh Legislature may
ting board approval 1607 Main St., Suite 1400 Dallas. TX. 75201-4709 Dear Senator Blake: 2141742a944
You have requested our opinion as to whether certain funds appropriated for college construction may be expended without approval 4624 Alberta Ave., Suite 160 El Paso, TX. 79905-2793 of the coordinating board. 9151533.3464
House Bill No. 1, was enacted in May 1982, and became effective upon the adoption of the amendment to article VII, section 17 of the 1220 Dallas Ave., Suite 202 tiouston, TX. 770024966 Texas Constitution at the November 2, 1982 election. Acts 1982, 67th 7131650-0666 Leg., 2d called session, ch. 1, at 1, provides, in pertinent part: Section 1. In addition to sums previously 606 Broadway. Suite 312 appropriated, the following amounts are Lubbock, TX. 79401.3479 8061747-5236 appropriated to the named institutions of higher education from the general revenue fund and other funds that may be specified for the purpose of 4309 N. Tenth, Suite El constructing permanent improvements, acquisition McAllen, TX. 76501-1685 of land, and major repair and rehabilitation 5121662-4547 projects as listed, and those projects or improvements are hereby authorized. Those 200 Main Plaza, Suite 400 institutions for which new construction only is San Antonio. TX. 76205-2797 authorized may use appropriated funds for major 5121225-4191 repair and rehabilitation.
An Equal OppOrtunitYI There follow specific appropriations for 17 named institutions, Affirmative Action Employer together with details regarding the purpose of the expenditures. The
first two appropriations, for example, provide as follows:
1. The University of Texas at Arlington *2 -. - Honorable Roy Blake - Page 2 @lw-519)
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
a. Library Basement Alterations for Computer Center
b. South Utilities Tunnel Interconnect Building c. Completion of Subbasement in Art Major Repairs and Rehabilitation d. Industrial Engineering Building Building e. Civil and Mechanical Engineering 5,900,000 TOTAL APPROPRIATION $ 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 governing board of the institution has determined tha; there are sufficient funds available to complete the project. (Emphasis added).
Section 3 of the bill states:
Part of each institution's appropriation under this Act represents a distribution of the undistributed balance of the state ad valorem tax fund and the remainder is appropriated from the general revenue fund. Each institution's distribution from the state ad valorem tax fund is in the same proportion that the institution's total of funds appropriated and distributed under *3 . .
Honorable Roy Blake - Page 3 (MW-519)
this Act bears to the total appropriated and distributed under this Act to all institutions.
You ask whether section 2 requires that the funds appropriated by House Bill No. 1 "be expended only after the advance approval of the Coordinating Board."
Section 61.058 of the Education Code provides, in pertinent part:
To assure efficient use of construction funds and the orderly development of physical plants to accommodate projected college student enrollment, the board shall:
. . . . approve or disapprove all new construction (8) 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 =PPlY to any new construction or major repair and rehabilitation project that is specifically approved by the legislature.
We note initially that the appropriations described herein would be invalid if they attempted to modify general law. Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); Attorney General Opinions MW-51 (1979); V-1253 (1951). Section 2 clearly states, however, that coordinating board approval is required "in accordance with the statutory responsibilities of the board." Those statutory responsibilities include an exception limiting the need for board approval in the situation you present. e Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1975).
Each of the 17 appropriations is categorized by House Bill No. 1 as either "new construction" or "major repair and rehabilitation." The items of appropriation detail the purposes for which the expenditures are to be made. In our opinion, it is clear that the legislature has "specifically approved" each of the "new construction" and "major repair and rehabilitation" projects funded by House Bill No. 1. As a result, in accordance with subsection (8)(D) of section *4 Honorable Roy Blake - Page 4 (MW-519)
61.058 of the Education Code, coordinating board approval is not required for any of the projects.
SUMMARY In accordance with section 61.058 of the Education Code, approval by the Coordinating Board of the Texas College and University System is not required to expend any of the funds appropriated in House Bill No. 1, Acts 1982, 67th Leg., ch. 1, at 1, for "new construction" and "major repairs and rehabilitation" at any of 17 named institutions of higher education.
Very truly yours, .
&ai&&!d MARK 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
Lance Beversdorff
Rick Gilpin
Patricia Hinojosa
Jim Moellinger