### 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 isamap orplat showing theproposed change In the driveways providing for the entrance and exit of traffic into and out of the Capitol grounds.

Theproposed change contemplates awidening 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 thepresent 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 indesign of the outlet. The change in design would move (slightly to thewest) the ornamental stone column ad,jacentto 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 thewest 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 thewest and eastdrives. AA lnspectloA .ofthe 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 

### 86lBof the Penal Code prohibit such modification of the entrance ways under the terminology ,ofSections 1and 

### 6?Honorable Wm. J. Burke, page 3 (WW-499)



### "3

.

"4. Does Article 

### 861Bof the Penal Code abrogate any of the authority, expressed or implied, conve ed by Articles 

### 667and 

### 670 (VCS~?
Does the Board of Control now have full authority toproceed to make themodifications 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 inVernon's as Article 

### 861b,Vernon's Penal Code, provides:
"It shallbe unlawful, without theprior

express consent of the Legislature, for any officer of this state or any employee thereof or any other person to construct, build, erect ormaintain any building, structure, memorial, monument, statute, concession or any other structure including creation ofparking 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 2and 

### 3provide for the penaltieS for Violation of theprovisions of Section 1 of the Act.

Section 1 of Article II of the Constitution of Texas, provides as follows:

"Section 1. Thepowers of the Government of the State of Texas shall be divided into three distinct departments, each ofwhich shall be confided to a separate body ofmagistracy, towit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and noHonorable Wm. J. Burke, page 4 

### (w-4991

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)
Inview of theprohibition contained in Section 1 ofArticle II of the Constitution 

### abovequoted, it Is necessary that

### we first

### determinewhether theprovisions ofArticle 

### 861bofVernon's Penal Code is an attempt to exercise managerial functions (anexalusive power of the Executive Department of Government) as'dlstinguished from a lawmaking function (anexclusive power of the Leglslatlve Department of Government).

It isnoted that in enacting the provisions of Article 

### 861b,the Legislature did not attempt to state how any particular building or structure would be erected ormaintained; 

### ratherthe Legislature was providing by law the limits ofpower to construct, build, erect ormaintain certain buildings. Therefore, it is our conclusion that Article 

### 861bofVernon's Penal Code constitutes an exercise of Legislative function rather than an Executive function of government and in this respect is constitutional because it isnot an attempt by the Legislature to Itself "exercise" an executive power. We need not 

### discussthephrase "without theprior express 

### consentof 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 ofwhether the provisions of Article 

### 861battempts to limit the exercise ofpowers granted by the Constitution of Texas to officers and boards created by the Constitution and we express no opinion thereon,

Theproposed change contemplated inyour request will require the laying of additional paving on the Capitol grounds as defined by Article 

### 861b,Vernon's Penal Code. Furthermore, itwill require the removal and reinstallation of an existing structure (ornamental granit columns) on the Capitol grounds. Therefore, suchproposed change is in direct contravention to

### theexpress provisions of Article 

### 861b. Since the proposed change isproviding for paved access to the Capitol grounds, the only remaining question iswhether suchproposed change will fallwithin 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, forwhen a statute expresses apurpose, and afterwards an Inconsistent 

### particularIsexpressed, 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 1of Artiale iiiwill 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 theproposed design indicated by the attached map orplat toyour request.

2. Article 86lb, Vernon's Penal Code, prohibits suchmodification of the entrance way. 

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

### andArticle 

### 670,authorizing the Board of Control to prepare plans and specifications for the improvements and repairs ofpublic buildings orproperty of the State and to supervise the construction of saidwork, have no application to the facts presented in your request. 

### 4. The Board of Control does not have full authority toproceed tomake modifications of the drives involved inyour request.

This opinion is not to

### beconstruedaspassing 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 theprovisions of Section 1 of Article 861b ofHonorable Wm. J. Burke, page 

### 6 (w-4991

Vernon'sPenalCodefrom 

### making anymodlfTcotlonofthedrives IntoorfromtheCapitolgrounds whiahwillcallforthelayingof **additional** 

### paverent. **Yours** 

### verytruly,
WILLWILSON AttorneyGeneralofTexas

JR:zt Asellstant

APPROVED: OPINIONCOMMITTEE
Geo. P. Blackburn, 

### Chairman
Leonard Passmore Jack Goodman
REVIEWED FOR THE ATTORNEY OENERAL BY: r W.V. Geppeti