I:MAwPoRD c. MARTlN AUUTXN. TEUAU 78711 

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. 

In your 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) In Section 5(d) of Article 4413(39), was 

it the intent of the Legislature to make the 

Building Materials and Systems Testing Laboratory 

subject to the policies, controls and direct:,on of 

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) of Article 4413(39) defines 

the "Department" as "the Division of State-Local Relations, Office 

of the Governor or any successor agency to that Division", The,refore, under Section 5(d) of Article 4413(39), the B.uilding 

Materials and Systems Testing Laboratory, through ,their Techn:icai 

Testing and Evaluation Council, is subject to the policies, controls 

-6304- 
Honorable B. R. Fuller, page 2 (M-1285) 

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

(2) If the Laboratory is assigned to the 

Texas Department of Community Affairs, can the 

executive director of the Department authorize 

the Comptroller's Office to issue warrants 

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 all moneys entrusted to the department" and I'. _. . 

expend for its purposes 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 purposes D 

(3) In Section 6(b) of Article 4413(39), mention 

is made of "included upon any list of testing laboratories formulated by the board". In this instance, 

does "board", which is not 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" is not defined by the Act and 

the quoted sentence in Section 6(b) is the only place in the 

Act that this term is used. We must ascertain the intent of the 

Legislature in using the term. By the established rules of 

statutory construction we must look to the context in which the 

term is used and the intention and purpose as manifested in the 

Act as a whole. In Section 6(a) the overall standards for testing 

and evaluation are "adopted or promulgated by the council and 

approved by the department," This method 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". 

-6305- 
Honorable B. R. Fuller, page 3 (M-1285) 

(4) Section 7(b) of Article 4413(39) states that 

"All fees shall be paid to the laboratory and deposited 

for the use of the laboratory in the administration 

and enforcement of this Act." Does this restrict the 

payment of all administrative charges to those funds 

established in the State Treasury by the payment of 

fees? Or is it possible for the Texas Department 

of Community Affairs to pay necessary administrative 

charges during the start-up phase of the laboratory 

from funds budgeted for that purpose within the 

Department's regular appropriations? 

Sections '7(a) and (b) of Article 4413(39) prescribe the 

authority and purpose of the establishment and collection of 

laboratory fees, 'I . ..to pay the costs incurred in the administration and implementation of this Act." These fees should be used 

first to pay the necessary administrative costs in providing the 

testing and evaluation services, then any additional funds available to the Texas Department of Community Affairs may be used to 

pay for the administration and implementation of Article 4413(39) 

under authority of Sections 5(4) and 13 of Article 4413(201), 

The Comptroller is authorized to issue warrants out of appropriated 

funds for such purposes. 

SUMMARY 

The Texas Department of Community 

Affairs is the "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 in Article 4413(39), Section 2(4), 

-6306- 
. - 

Honorable B. R. Fuller, page 4 (M-1285) 

through its executive director, has authority 

to pay administrative expenses of the Laboratory by 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 

Sig Aronson 

Bob Lattimore 

Bill Flanary 

John Banks 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-6307-