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# 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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An Equal OppOrtunitYI Affirmative Action Employer HonorableRoy Blake, Chairman OpinionNo.MW-519 SenateCommittee 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 coordinatingboard approval Dear SenatorBlake: You have requested our opinion as to whether certain funds appropriatedfor college constructionmay be expendedwithout approval of the coordinatingboard. 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 Constitutionat the November 2, 1982 election. Acts 1982, 67th Leg., 2d called session, ch. 1, at 1,provides, inpertinentpart:

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, togetherwith details regarding the purpose of the expenditures. The first two appropriations,for example,provide as follows:

1. The Universityof Texas at Arlington New Construction:

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a. Thermal Energy Plant b. ArchitectureBuilding c. EngineeringBuilding Major Repairs and Rehabilitation: d. Renovationof Cooper Center TOTALAPPROPRIATION $25.000.000 2. Texas Tech University New Construction:
a. Library Basement Alterations for Computer Center b. SouthUtilitiesTunnel Interconnect c. Completionof SubbasementinArt Major Repairs and Rehabilitation d. IndustrialEngineeringBuilding e. Civil and Mechanical Engineering TOTAL APPROPRIATION $ Section 2 of House BillNo. 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 initiateduntil the governingboard of the institution has determined tha; there are sufficient funds available to complete the project. (Emphasisadded). Section 3 of thebill states:

Part of each institution'sappropriationunder this Act represents a distribution of the undistributedbalance 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 distributedunder -. -

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this Act bears to the total appropriated and distributedunder thisAct 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 CoordinatingBoard." Section 61.058 of the EducationCode provides, in pertinentpart:

To assure efficient use of construction funds and the orderly development of physical plants to accommodate projected college student enrollment, theboard shall:

. . . . (8) approve or disapproveallnew construction and repair and rehabilitationof 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 requirementof 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 appropriationsdescribedherein 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 situationyou present. e JessenAssociates, Inc.v. Bullock, 531 S.W.2d 593 (Tex. 1975). Each of the 17 appropriations is categorizedby 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 legislaturehas "specificallyapproved" each of the "new construction" and "major repair and rehabilitation"projects funded by House Bill No. 1. As a result, in accordancewith subsection (8)(D) of section

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61.058 of the Education Code, coordinating board approval is not required for any of theprojects. SUMMARY In accordance with section 61.058 of the EducationCode, approvalby the CoordinatingBoard 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 institutionsof higher education. Very trulyyours,

. &ai&&!d MARK WHITE Attorney General of Texas JOHNW. FAINTER, JR. FirstAssistantAttorney General RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby Rick Gilpin AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Lance Beversdorff Rick Gilpin PatriciaHinojosa JimMoellinger

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