THE 

March 6, 1952 

Hon. Olin Culberson, Chairman 

Railroad Commission of Texas 

Austin, Texas Opinion FJo. V-1417 

Re: Legality of altering, repairing, and extending 

the existing air conditioning system for the 

eleventh floor of the 

Dear Sir: Tribune Building. 

Your request for an opinion reads, in part, as 

follows: 

"The existing heating, ventilating, and 

cooling system for the Eleventh Floor of the 

Tribune Building, Austin, Texas, is not adequate. We would like to make some alterations, 

repairs and extensions of the existing heating 

and air conditioning system. 

"This system was originally designed for 

residential penthouse occupancy. The ~,orlglnal 

human occupancy load for the cooling system 

was based on a maximum of three or four people. 

The present full-time employees in this space 

number approximately ten plus any v,lsltors 

that may be in the offices. . . . 

"Your opinion as to whether ue can use 

State funds to make these alterations, repairs 

and extensions of the existing heating and air 

conditioning systems, Eleventh Floor, Tribune 

Building, Austin, Texas, is requested." 

House Concurrent Resolution 38, 52nd Leg., R.S. 

1951, p. 1563, provides, In patit, as follows: 

"Whereas, The Legislature finds that it 

Is economically unsound to air condition State 

buildings, except new construction, or to purchase room air conditioning machinery or units 

for use therein; and . . . 
Hon. Olin Culberson, page 2 (V-1417) 

"Resolved by the House of Representatives, the Senate of Texas concurring, That 

the policy of the State of Texas Is not to 

permit the use of State funds for air conditioning State buildings, except new construction, or for the purchase of room air condltloniffg machinery or units; and, be it further 

. . . 

In Att'g Gen. Op. V-1269 (1951) we construed 

the above quoted provisions, holding that this resolutlon prohibits State agencies from purchasing new air 

conditioning equipment, except In new construction, In 

the absence of a specific appropriation for such a purchase. There Is no such specific appropriation In the 

current appropriation bill Douse Bill 426, Acts 52nd 

Leg., R.S. 1951, ch. 495, p. 1228 to the Railroad Commission. However, "Item 4" of ti? eappropriation to 

"Capitol and State Office Buildings" provides funds for 

"miscellaneous repairs, Including repairs to steam, 

electric, and air condltlonlng equipment," and "reconditioning cooling tower" in the Tribune Building. R.B. 

426, supra, at p. 1328. 

We have previously held that air conditioning 

ln~tallatlons which were in use prior to the passage of 

House Concurrent Resolution 38 may continue to be operated, repaired, and maintained, even though no specific 

appropriation has been made for that purpose. Att'y 

Gen. Op. V-1269, au ra. 

91 

Thus, the Railroad Commission, 

which was operating a r conditioning equipment In the 

Tribune Building before the resolution was passed, may 

continue to operate and malntaln its equipment. It remains, however, to determine whether the proposed work 

set out in your request may be carried out under the authority to repair and maintain existing air conditioning 

facilities. 

The terms "repair" and "maintain," and other 

similar terms, have been judicially defined in decisions 

too numerous to be exhaustively reviewed here. "Repair" 

contemplates the restoration of a thing to Its original 

condition or to a sound state after injury, decay, or 

any other form of depreciation. To repair is to mend. 

The word "maintain" has been held to embrece "repair," 

and It lmpl!es the upkeep of something already in existence e To maintain equipment ia to keep It In good repair. 
. ., 

Hon. Olin Culberson, page 3 (V-1417) 

These terms are discussed in M. K. & T. Ry. Co. v. Bryan, 

107 S.W. 572, 576 (Tex. Clv. App.lgOt%J, as follows: 

"The word 'repair,' as defined by 

Webster, means 'to restore to a sound 

or good state after decay, Injury, dllapldation, or partial destruction'; 

and the phrase 'in good repair' means 

in such state of reparation, and Implies 

the existence of the thing to be repaired. 

It has been held that the words 'maintain' 

and 'repair' mean 

same thing. . . . 

practically one and the 

However, work which substantially changes theme 

character or enhances the value of property is not maintenance or repair work. The distinction has, in the 

past, been recognized by this office. Att'y Gen. Op. 

O-1216 (1939). When changing conditions or the inevltable passage of time requires the substitution of modern 

for antiquated equipment, or that extraordinary repairs 

be made, theae are not "repairs" as such, but 'improvements" or "altere.tlons." Delta Cotton Oil Co. v. Lovelace, 196 SO. 644 (Miss. Sc'1940). As applied to the 

upkeep of machinery, the words "repair" and "replace" 

contemplate 0~1~ a restoration of the equipment to Its 

original condition, not the employmeiit of expertsto redesign and~reconstruct It. Alleghei. County v. Maryland_ 

~~~~~~~~~;,,,~~,";,Sup". 672 (WiD. Pt. 1941)': Under the 

there can be no enlargement or improvement except iniofar as the work of repairing necessarily enlarges and Improves. 

26 423 (Tex. Civ. App. 1933). 

Whlte v. Perkins, 65 S.W. 

The propohedremodeling work contemplates a 

considerable enlargement of the air condltlonlng system 

presently bslng used by the Rallroad Commission. The 

contractor proposes to Install new mechanical equipment, 

as well as to Increase the capacity of the machinery 

which Is now In use, In short, an Installation originally designed to care for a maximum of four persons 

Is to be enlarged to accommodate a minimum of ten. Such 

a project is not comparable to the ordinary maintenance 

and repair work which this office held to be authorized 

under the provisions of House Concurrent Resolution 38. 

Therefore, you are advised that It is our opinion that 

the Railroad Conrmlssion may not use State funds for the 

purpose of making this proposed enlargement of the air 

conditioning system for its offices on the eleventh floor 

of the Tribune Building. 
Hon. Olin Culberson,, page 4, (V&1417) 

In Oglnlon v-1269, supra, ,thls,office defined 

an .alr’ condltionlng unit as “an’ apparatus used to reduce the temperature and affect the humidity of i&r-air 

inn enclosed space.” It would be unreasonable to assume that the resolution was passed In an effort to prohibit State agencies from purchasing heating equipment. 

It is our opinion, therefore, that House Concurrent 

Resolution 38 does not In any way restrict the authority 

to enlarge the heating plant which Is now being used by 

the Railroad Commlsslon. 

House Concurrent Resolution 38, .52nd 

Leg., R.S. 1951, prohibits a State agency 

from substantially enlarging and increasing 

the capacity of an air conditioning lnstallatlon which was In operation before the passage 

of the resolution. This resolution, however, 

has no effect on the authority of an sgellcy 

,to purchase or enlarge its heating equipment. 

APPROVED: 

David 8’; irons 

Administrative Assistant 

Yours very truly, 

PRICE DANIEL 

Attorney General 

E. Jacobson 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

m (!AL.-AG-4 ,!(i 

Calvin B. Garwood, Jr. 

Assistant 

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