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 existingheating, 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 existingheating and air conditioning system.
"This systemwas originallydesigned for residentialpenthouse 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 thatmay be in the offices.

. . .
"Your opinion as to whether ue can use State funds to make these alterations,repairs and extensions of the existingheating and air conditioning systems,Eleventh Floor, Tribune Building,Austin, Texas, is requested."

House ConcurrentResolution 38, 52nd Leg., R.S. 1951, p. 1563, provides, In patit, as follows:
"Whereas,The Legislature finds that it Is economicallyunsound to air condition State buildings, except new construction, or to purchase room air conditioningmachinery or units for use therein; and

. . .Hon. Olin Culberson,page 2 (V-1417)

"Resolvedby 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 conditioningequipment, except In new construction, In the absence of a specificappropriationfor such a purchase. There Is no such specificappropriation In the current appropriationbill Douse Bill 426, Acts 52nd Leg., R.S. 1951, ch. 495, p. 1228 to the Railroad Commission. However, "Item 4" of ti? e appropriation to "Capitol and State Office Buildings" provides funds for "miscellaneousrepairs, Includingrepairs to steam, electric, and air condltlonlngequipment," and "reconditioning cooling tower" in the Tribune Building. R.B. 426, supra, at p. 1328.

We have previouslyheld that air conditioning ln~tallatlonswhich were in use prior to the passage of House ConcurrentResolution 38 may continue to be operated, repaired, and maintained, even though no specific appropriationhas been made for thatpurpose. Att'y Gen. Op.V-1269, au ra.

91 Thus, theRailroad Commission, which was operating a r conditioningequipment In the Tribune Building before the resolutionwas passed,may continue to operate and malntaln its equipment. It remains, however, to determinewhether the proposedwork set out inyour 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 judiciallydefined in decisions too numerous to be exhaustivelyreviewedhere. "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 beenheld to embrece "repair," and It lmpl!es the upkeep of somethingalready in existencee 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:

"Theword 'repair,'as defined by Webster, means 'torestore to a sound
or good state after decay, Injury,dllapldation, or partial destruction'; and the phrase 'ingood repair' means in such state of reparation, and Implies the existence of the thing to be repaired. It has been held that thewords 'maintain' and 'repair'mean same thing.

. . . practically one and the

However, work which substantiallychanges theme character or enhances the value of property is not maintenance or repair work. The distinctionhas, 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 substitutionof modern for antiquated equipment, or that extraordinaryrepairs 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, thewords "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 propohedremodelingwork contemplatesa considerable enlargement of the air condltlonlng system presentlybslng used by the Rallroad Commission. The contractor proposes to Install newmechanical equipment,
as well as to Increase the capacity of the machinery which Is now In use, **In** short, an Installation originallydesigned 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 officeheld to be authorized under the provisions of House ConcurrentResolution 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 Oglnlonv-1269, supra, ,thls,office defined
an .alr’

condltionlngunit as “an’ apparatus used to reduce the temperatureand affect thehumidity of i&r-air inn enclosed space.” It would be unreasonableto assume that the resolutionwas passed In an effort to prohibit State agencies from purchasingheating equipment. It is our opinion, therefore, thatHouse Concurrent Resolution 38 does not In any way restrict the authority to enlarge theheating plant which Is now being used by the Railroad Commlsslon.

House Concurrent Resolution 38, .52nd Leg., R.S. 1951, prohibits a State agency from substantiallyenlargingand increasing the capacity of an air conditioning lnstallatlon which was In operationbefore the passage of the resolution. This resolution,however, has no effect on the authority of an sgellcy ,topurchase or enlarge itsheating equipment.

APPROVED:

David 8’;irons AdministrativeAssistant Yours very truly,

PRICE DANIEL AttorneyGeneral

E. Jacobson Reviewing Assistant

CharlesD. Mathews First Assistant m (!AL.-AG-4 ,!(i Calvin B. Garwood, Jr.

Assistant

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