H[E,~XTORNEY GENERAL 

OFTEXAS 

Honorable Wm. J. Burke 

Executive Director 

State Board of Control 

Austin, Texas 

Opinion No. WW-499 

Re: Authority of the 

Board of Control 

modify and alter 

State 

to 

the 

Dear Mr. Burke: 

permanent entrances lnto the Capitol grounds. 

You have requested an opinion conaernlng your authority to change the design of the drive entrances and exits 

of the Capitol grounds located addacent to the corner of Congress Avenue and Eleventh Street. Attached to your request 

is a map or plat showing the proposed change In the driveways 

providing for the entrance and exit of traffic into and out 

of the Capitol grounds. 

The proposed change contemplates a widening of that 

part of the driveways providing for the entrance and exit 

located adjacent to the corner of Congress Avenue and 

Eleventh Street in the City of Austin, and eliminating the 

ninety degree turns existing at the present time. You state 

that the purpose of this proposed change is as follows: 

"The fact that a serious bottleneck 

exists at the 11th Street &nation with 

the west drive of the Capitol creates a 

necessity for consideration of changes 

in design of the outlet. The change in 

design would move (slightly to the west) 

the ornamental stone column ad,jacent to 

the drive outlet and would necessitate 

the removal of approximately 4' of the 

iron fence In order to straighten out the 

offset In the west Capitol Drive; the 

ornamental column would be replaced on 

its foundation and the fence reconnected. 
Honorable Wm. J. Burke, page 2 (WW-499). 

We merely propose to eliminate the offsets In the west driveway and to provide 

for freer access to 11th Street. A similar 

change would be required on the east drive 

in the moving of the ornamental column 

(slightly to the east), shortening of the 

fence, and its subsequent reconnection to 

the ornamental column. Each of the changes 

proposed will involve a slight change in 

the radius of the curbs bordering 11th 

Street. 

"The changes proposed would eliminate 

the existing blockade of sidewalks on both 

the west and eastdrives. AA lnspectloA 

.of the area will reveal that the sidewalk 

terminates near the fence, that IA order 

to obtain access to the street it is 

necessary for pedestrians witbiA',the 

Capitol grounds and on the sidewalk to step 

out into the drive in order to get around 

the end of the fence and the ornamental 

column. Our proposal would provide a 

sidewalk connection with the curb area 

without the existent danger that is iAhereAt 

in the present situation. We believe that 

we should correct difficulties relating 

to pedestrian and vehicalar movements wlthin the Capitol grounds; the correction 

will improve the external appearanae of the 

grounds, particularly on the 11th Street 

side." 

"1 . 

"2 * 

Your specific questions are: 

If the ObllgatiOA to maintain, repair, 

supervlse, etc., iAClUdes the grounds 

and driveways, does the Board of 

Control have authority to modify 

the entrance to the Capitol drives 

to conform with proposed design iAdlcated on the attached print? 

Does Article 86lB of the Penal Code 

prohibit such modification of the 

entrance ways under the terminology 

,of Sections 1 and 6? 
Honorable Wm. J. Burke, page 3 (WW-499) 

"3 . 

"4. 

Does Article 861B of the Penal Code 

abrogate any of the authority, expressed or implied, conve ed by 

Articles 667 and 670 (VCS~? 

Does the Board of Control now have 

full authority to proceed to make 

the modifications of the drives in 

the event such should be necessary?" 

Section 1 of Senate Bill 437, Acts of the 55th 

Legislature, Regular Session, 1957, Chapter 313, page 758, 

codified in Vernon's as Article 861b, Vernon's Penal Code, 

provides: 

"It shall be unlawful, without the prior 

express consent of the Legislature, for any 

officer of this state or any employee thereof 

or any other person to construct, build, erect 

or maintain any building, structure, memorial, 

monument, statute, concession or any other 

structure including creation of parking areas 

or the laying of additional paving on any of 

the grounds that surrounded the State Capitol 

on January 1, 1955, and which grounds were then 

bounded by Eleventh, Brazes, Thirteenth and 

Colorado Streets, In the City of Austin, Texas, 

whether such land lay inside OP outside the 

fence enclosing part of the grounds3 provided, 

however, that paved access and underground 

utility installations may be constructed and 

m provided further, that the provisions of this Act shall not apply to the 

Supreme Court Building, according to the approved plans dated October 29, 1956, nor to 

the State Office Building, according to the 

approved plans dated November, 1956.” 

Sections 2 and 3 provide for the penaltieS for Violation of the provisions of Section 1 of the Act. 

Section 1 of Article II of the Constitution of Texas, 

provides as follows: 

"Section 1. The powers of the Government of the State of Texas shall be divided 

into three distinct departments, each of which 

shall be confided to a separate body of magistracy, to wit: Those which are Legislative to 

one; those which are Executive to another, and 

those which are Judicial to another; and no 
Honorable Wm. J. Burke, page 4 (w-499 1 

person, or collection of,persons, being of 

one of these departments, shall exercise any 

power properly attached to either of the 

others, except in the instances herein expressly permitted." (Rmphasis added) 

In view of the prohibition contained in Section 1 

of Article II of the Constitution above quoted, it Is 

necessary that we first determine whether the provisions 

of Article 861b of Vernon's Penal Code is an attempt to 

exercise managerial functions (an exalusive power of the 

Executive Department of Government) as'dlstinguished from 

a law making function (an exclusive power of the Leglslatlve Department of Government). 

It is noted that in enacting the provisions of 

Article 861b, the Legislature did not attempt to state 

how any particular building or structure would be erected 

or maintained; rather the Legislature was providing by law 

the limits of power to construct, build, erect or maintain 

certain buildings. Therefore, it is our conclusion that 

Article 861b of Vernon's Penal Code constitutes an exercise 

of Legislative function rather than an Executive function 

of government and in this respect is constitutional because 

it is not an attempt by the Legislature to Itself "exercise" 

an executive power. We need not discuss the phrase "without the prior express consent of the Legislature". 

The State Board of Control Is a statutory board, 

created by Title 20 of the Revised Civil Statutes of Texas 

of 1925, as amended, and, therefore, exercise only statutory 

powers. Therefore, we are not confronted with the question 

of whether the provisions of Article 861b attempts to limit 

the exercise of powers granted by the Constitution of Texas 

to officers and boards created by the Constitution and we 

express no opinion thereon, 

The proposed change contemplated in your request 

will require the laying of additional paving on the Capitol 

grounds as defined by Article 861b, Vernon's Penal Code. 

Furthermore, it will require the removal and reinstallation of an existing structure (ornamental granit columns) 

on the Capitol grounds. Therefore, such proposed change is 

in direct contravention to the express provisions of Article 861b. Since the proposed change is providing for 

paved access to the Capitol grounds, the only remaining 

question is whether such proposed change will fall within 

the proviso above quoted. 
Honorable Wm. J. Burke, page 5 (w-499 1 

It is our opinion that the proviso will not negate 

the express prohibition of laying additional paving on the 

Capitol grounds, for when a statute expresses a purpose, 

and afterwards an Inconsistent particular Is expressed, 

the latter is to be regarded as an exception to the former, 

and both are permitted to stand. 39 Tex. Jur., Statutes, 

Section 101, page 191. 

In our opinion the proposed than e 

the provisions of Section 1 of Artiale iii 

will contravene 

61b. Therefore, 

in answer to your specific questions you are advised: 

1. The State Board of Control does not have the 

authority to modify the entrance to the Capitol drives 

to conform with the proposed design indicated by the attached map or plat to your request. 

2. Article 86lb, Vernon's Penal Code, prohibits 

such modification of the entrance way. 

3. Article 667, Vernon's Civil Statutes, provlding that the Board of Control shall have charge and aontrol of the halls, chambers and committee rooms of the 

State Capitol Building, and Article 670, authorizing the 

Board of Control to prepare plans and specifications for 

the improvements and repairs of public buildings or property of the State and to supervise the construction of 

said work, have no application to the facts presented in 

your request. 

4. The Board of Control does not have full 

authority to proceed to make modifications of the drives 

involved in your request. 

This opinion is not to be construed as passing 

upon the validity of the Penal provisions contained in 

Sections 2 and 3 of Article 861b, Vernon's Penal Code. 

SUMMARY 

The State Board of Control is 

prohibited by the provisions 

of Section 1 of Article 861b of 
Honorable Wm. J. Burke, page 6 (w-499 1 

Vernon's Penal Code from making 

any modlfTcotlon of the drives 

Into or from the Capitol grounds 

whiah will call for the laying of 

additional paverent. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JR:zt Asellstant 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

Leonard Passmore 

Jack Goodman 

REVIEWED FOR THE ATTORNEY OENERAL 

BY: r 

W. V. Geppeti