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ATTaD)HNlcY

GECNRRAI. December 27,1972 Honorable B, R.Fuller Opinion No, M-1285 Acting Executive Director Texas Department of Community Re: Questions concerning Affairs the relationship beP. 0.Box 13166, Capitol Station tween the Building Austin, Texas Materials and Systems Testing Laboratory and the Texas Department of Community Dear Mr. Fuller: Affairs.
Inyour recent request you state that certain questions have arisen concerning the relationship between the Texas Department of Community Affairs, Article 4413(201), Vernon's Civil Statutes, and the Building Materials and Systems Testing Laboratory, Article 4413(39), Vernon's Civil Statutes.
In this connection you request our opinion on four specific questions: (1)InSection 5(d) ofArticle 4413(39), was it the intent of the Legislature tomake the Building Materials and Systems Testing Laboratory subject to thepolicies, controls and direct:,onof the Texas Department of Community Affairs, the successor agency to the Division of State-Local Relations of the Governor's Office?
Our answer i,s"yes". Section 2(4) ofArticle 4413(39) defines the "Department" as "theDivision of State-Local Relations, Office of the Governor or any successor agency to that Division", The,refore, under Section 5(d) ofArticle 4413(39), the B.uilding Materials and Systems Testing Laboratory, through ,theirTechn:icai Testing and Evaluation Council, is subject to thepolicies, controls

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and direction of the Department of Community Affairs, the successor agency.

(2)If the Laboratory isassigned to the Texas Department of Community Affairs, can the executive director of the Department authorize the Comptroller's Office to issuewarrants against department funds for the laboratory?
Our answer is "yes". Article 4413(201), Section 5(4) and Section 13 authorize the executive director of the Department to "administer allmoneys entrusted to the department" and I'._.. expend for itspurposes any appropriations or grants from the State of Texas, the federal government, or any other source . . ." This is express authority to the Department, through its executive director, to use department funds for laboratory purposesD (3)InSection 6(b) ofArticle 4413(39), mention ismade of "included upon any list of testing laboratories formulated by theboard". In this instance, does "board",which isnot defined by Article 4413(39), refer to the Council or the Department?
Our opinion is that "board" refers jointly to the Department and the Council. The term "board" isnot defined by theAct and the quoted sentence inSection 6(b) is the only place in the Act that this term isused. We must ascertain the intent of the Legislature inusing the term. By the established rules of statutory construction we must look to the context inwhich the term isused and the intention and purpose asmanifested in the Act as awhole. InSection 6(a) the overall standards for testing and evaluation are "adopted orpromulgated by the council and approved by the department," Thismethod is in essence a **joint** function of the Council and Department as a "board". Using thhi.s sense of the term then in Section 6(b) the adoption of a list of acceptable testing laboratories would be formulated by recommendation of the Council with approval of the department as the "board".

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(4)Section 7(b) ofArticle 4413(39) states that "All fees shallbe paid to the laboratory and deposited for the use of the laboratory in the administration and enforcement of thisAct." Does this restrict the payment of all administrative charges to those funds established in the State Treasury by the payment of fees? Or is itpossible for theTexas Department of Community Affairs topay necessary administrative charges during the start-up phase of the laboratory from fundsbudgeted for that purpose within the Department's regular appropriations?
Sections '7(a)and (b)ofArticle 4413(39) prescribe the authority and purpose of the establishment and collection of laboratory fees, 'I ...topay the costs incurred in the administration and implementation of thisAct." These fees shouldbe used first topay the necessary administrative costs inproviding the testing and evaluation services, then any additional funds available to the Texas Department of Community Affairs maybe used to pay for the administration and implementation ofArticle 4413(39) under authority of Sections 5(4) and 13 ofArticle 4413(201), The Comptroller isauthorized to issuewarrants out of appropriated funds for suchpurposes.
SUMMARY
The Texas Department of Community Affairs isthe "department" charged with setting policies, controls and direction for the Technical Testing and Evaluation Council of the "Laboratory" established by Article 4413(39), Vernon's Civil Statutes. The term "board" in Section 6(b) of Article 4413(39) means the Council and Department acting together. The "Department" as defined inArticle 4413(39), Section 2(4),

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through its executive director, has authority topay administrative expenses of the Laboratoryby requesting the Comptroller to issue warrants out of appropriated funds for such purposes.

Prepared by Harry C. Green Assistant Attorney General
APPROVED: OPINION COMMITTEE
W. E.Allen, Chairman SigAronson Bob Lattimore Bill Flanary John Banks
SAMUEL D.MCDANIEL Staff Legal Assistant

ALFRED WALKER Executive Assistant
NOLAWHITE First Assistant

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