,- 

The Attorney General of Texas 

December 1, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin, TX. 76711. 2546 

51214752501 

Telex 9101674-1367 

Telecopier 5121475.0266 

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Dallas. TX. 75201-4709 

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El Paso, TX. 79905-2793 

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tiouston, TX. 770024966 

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San Antonio. TX. 76205-2797 

5121225-4191 

An Equal OppOrtunitYI 

Affirmative Action Employer 

Honorable Roy Blake, Chairman Opinion No.MW-519 

Senate Committee on Administration 

Texas State Senate Re: Whether funds appropriated 

G-27-J, State Capitol Building for college construction by 

Austin, Texas 78711 second called session of the 

Sixty-seventh Legislature may 

be expended without coordinating board approval 

Dear Senator Blake: 

You have requested our opinion as to whether certain funds 

appropriated for college construction may be expended without approval 

of the coordinating board. 

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 

Texas Constitution at the November 2, 1982 election. Acts 1982, 67th 

Leg., 2d called session, ch. 1, at 1, provides, in pertinent part: 

Section 1. In addition to sums previously 

appropriated, the following amounts are 

appropriated to the named institutions of higher 

education from the general revenue fund and other 

funds that may be specified for the purpose of 

constructing permanent improvements, acquisition 

of land, and major repair and rehabilitation 

projects as listed, and those projects or 

improvements are hereby authorized. Those 

institutions for which new construction only is 

authorized may use appropriated funds for major 

repair and rehabilitation. 

There follow specific appropriations for 17 named institutions, 

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 

New Construction: 

p. 1880 
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 

New Construction: 

a. Library Basement Alterations for Computer 

Center 

b. South Utilities Tunnel Interconnect 

c. Completion of Subbasement in Art 

Major Repairs and Rehabilitation 

d. Industrial Engineering Building 

e. Civil and Mechanical Engineering 

TOTAL APPROPRIATION $ 

Section 2 of House Bill No. 1 then states: 

Building 

Building 

5,900,000 

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 

-. - 

p. 1881 
. . 

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: 

. . . . 

(8) approve or disapprove all new construction 

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 

p. 1882 
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 

p. 1883