,

--

JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin, TX. 76711. 2546 5121475~2501 Telex 9101674-1367 Telecopier 51214754266

714 Jackson. Suite 700 Dallas. TX. 75202.4506 2141742.6444

4624 Alberta Ave.. Suite 160 El Paso, TX. 79905.2793 9151533.3464

- 41 Texas, Suite 700

wsto”, TX. 77002-3171 1131223.5666

806 Broadway. Suite 312 Lubbock. TX. 79401-3479 6061747-5236

4309 N. Tenth, Suite B McAllen, TX. 76501.1665 5121662.4547

200 Main Plaza, Suite 400 San Antonio. TX. 76205.2797 5121225.4191

An Equal Opportunity/ Affirmative Action Employer



### -e 

# The Attorney General of Texas

October 12, 1983

Mr. KennethH. Ashworth OpinionNo. JM-77 Commissioner CoordinatingBoard k?: Whether Coordinating Texas College andUniversity System Boardhas authority to approve 200 E. RiversideDrive collegeconstructionfunded in Austin, Texas 78741 part by ad valorem tax funds received under former article VII, section 17, of the Texas constitution
DearMr. Ashworth:
You have requested clarification of Attorney General Opinion MW-594 (1982),which holds that constructionprojects for institutions of higher education funded by state ad valorem taxes received under former article VII, section 17, of the Texas Constitution, are not subject to Coordinating Board approval. Although section 61.058 of the Education Code provides that the CoordinatingBoard shall approve or disapprove all new construction of facilities at institutions of higher education. projects funded under former article VII, section 17, of the constitutionwere held in that opinion to be exempted by the constitutionitself.
You now inquire as to what proportion of the total funding of a projectmust derive from state ad valorem taxes in order to exempt it from the requirement of Coordinating Board approval under section 61.058(B)of the EducationCode.
In our opinion, Attorney General Opinion NW-594 was incorrectly decided. ArticleVII, section 17was repealedat theNovember 2, 1982 election. Article VIII, section l-e of the Texas Constitution was amended at the same election toprovide as follows:

sec. l-e. 1. No State ad valorem taxes shall be leviedupon anypropertywithin this State. 2. All receipts from previously authorized State ad valorem taxes that are collected on or after the effective date of the 1982amendment to this section shall be deposited to the credit of the general fund of the county collecting the

p. 325Mr. KennethH. Ashworth - Page 2 (JM-77)

taxes and may be expended for county purposes. Receipts from taxes collected before that date shall be distributed by the legislature among instit"tions eligible to receive distributions under prior law. Those receipts and receipts distributed under prior law may be expended for the purposes provided under prior law or for repair and renovation of existing permanent improvements. The recently enacted constitutionalamendment changes themode of distribution of the ad valorem tax funds from that formerly dictated by article VII, section 17. See Attorney General Opinion H-1129 (1978). Under article VIII, Zion l-e, tax receipts collected before the effective date of the amendment are to be appropriatedby the legislatureand projects constructedwith those funds are subject to Coordinating Board approval to the same extent that other legislativelyappropriated funds for college constructionare subject to such approval. See JessenAssociates, Inc.v. Bullock, 531 S.W.2d 593 (Tex. 1976). - The new constitutionalamendment stateswith respect to receipts distributed under prior law, that is, article VII, section 17, that they "maybe expended for thepurposesprovidedunderprior law or for repair and renovation of existing permanent improvements." The new provisionpreserves the purposes for which funds couldbe spent under former article VII, section 17. It does not preserve the language that rendered article VII, section 17 "self-enacting." Thus, any language of article VII, section 17, which might have excepted ad valorem tax funds from the requirements of section 61.058(B) of the Education Code is no longer in effect. Constructionprojects arenot excepted from Coordinating Board approval under section 61.058(B) merely because they are funded in whole or part with ad valorem tax funds. Cf.AttorneyGeneral OpinionMW-245 (1980). Of course, if the projectz be funded by these receipts has been approved by the legislature, Coordinating Board approval will be unnecessary. See Attorney GeneralOpinionMW-520 (1982). Thus, the answer to your question is that Coordinating Board approval is required for all constructionprojects even if they are funded in whole or in part from ad valorem tax funds. Attorney General OpinionMW-594 is hereby overruled. SUMMARY Construction projects are not excepted from Coordinating Board approval under section 61.058 of the Education Code merely because they are funded in whole or in part from ad valorem tax

p. 326Mr. KennethH. Ashworth - Page 3 (JM-77)

-1
funds. Attorney General Opinion Mw-594 is overruled.

JIM MATTOX AttorneyGeneral of Texas

-- TOM GREEN FirstAssistantAttorneyGeneral DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby SusanGarrison& Rick Gilpin AssistantAttorneysGeneral APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible David Brooks Colin Carl SusanGarrison JimMoellinger Nancy Sutton

p. 327