Senator W. S. Fly 

Chairman of the Committee 

on Finance 

Senate of the State of Texas 

Capitol Station 

Austin, Texas 

Opinion No. WW-40 

Re: Scope of authority of the 

State Building Commission 

under Acts 1955, 54th Leg., 

1298, ch. 514, Article 

6P?8m, V.A.C.S., and the 

effect of such Act as to 

the repealing of Article 

861a, P.C. 

Dear Sir: 

We have received your request for our opinion 

dated February 12, 1957, which propounds the following 

questions: 

"1. Was the Building Commission, created under Article 678m Vernons Annotated 

Civil Statutes, authorized to begin construction of the State Courts Build,ing witho,ut having undertaken and completed the airconditioning of the halls, offices and committee rooms of the Rouse of Representatives 

and the Senate? 

"2 o Was the Building Commission authorized to enter into a contract for the 

construction of the State Courts Building 

and pledge funds required to be expended 

for such air-,conditioning project aforesaid? 

"3 ~ Is the Building Commission authorized to enter into a contract pledging 

moneys beyond a period of two years? 
Senator W. S. Fly, page 2 (WW-40) 

I! 4. Did the Building Commission Act, 

namely, Article 678m repeal the Penal Act, 

towit: Article 861a of the Penal Code, lnsofar as its depredation of the Capitol 

grounds?" 

1. Article III, Sec. 51b, Subdivision (c) of 

the Constitution prescribes the powers and duties of the 

Commission as follows: 

"Under such terms and conditions as 

are now or may be hereafter provided by 

law, the Commission may acquire necessary 

real and personal property, salvage and 

dispose of property unsuitable for State 

purposes, modernize, remodel, building and 

equip buildings for State purposes, and 

negotiate and make contracts necessary to 

carry out and effectuate the purposes 

herein mentioned." 

It will be noted that the Commission is empowered to: 

1. Acquire necessary real and personal 

property. 

2. Salvage and dispose of property unsuitable for State purposes. 

3. Modernize. 

4. Remodel. 

5. Build and equip buildings for State 

purposes. 

Each of the five acts enumerated are within 

themselves separate and distinct functions of the Commission. 

Article 678m, Sec.qa, V.A.C.S., authorized 

the Commission to engage In two acts by stating: "The 

first major modernizing and remodeling program to be 
. 

Senator W. S. Fly, page 3 (WW-49) 

undertaken under the provisions of this Act shall be 

the air conditioning of the halls, offices and committee 

rooms of the House of Representatives and Senate in the 

Capitol Building;" 

The restrictive language used in Sec. 9a applies 

to "modernining and remodeling" programs only and does not 

restrict the Commission from undertaking non-major modernization and remodeling projects, nor does it affect or restrict the Commission from pursuing,any of the other three 

func,tions enumerated by Article III, Sec. 51b, subdivision 

(c) of the Constitution. The last sentence of Article 

678m, Sec. ga, does not serve to broaden the scope of the 

language used in the first sentence of said Sec. ga, but 

mereiy indica~tes that this modernization and remodeling 

to 'be first ,undertaken should be completed with all dispatch. 

It follows then that the Building Commission 

was authorized to begin the State Courts Building prior 

to the undertaking and completion of the air conditioning of the halls, offices and committee rooms of the 

House of Representatives and the Senate in the Capitol 

Building. 

2. Article III, Sec. 5lb, Subdivision (b) of 

the Constitution provides, "The State Building Fund shall 

be expended by the Commission upon appropriation by the 

Legislature for the uses and purposes set forth in subdivision (c) hereof." 

This constitutional provision makes it clear 

that the Commission may not expend any of the State Building Fund without a legislative appropriation. This appropriation must be specific in nature, in view of 

Article VIII, Sec. 6 of the Constitution. Examination of 

the appropriations made in Art. 678m, V.A.C.S., Sets. 9a 

and 18, shows that these appropriations are specific in 

nature, and leave the Commission without authority to 

divert to the State Courts Building by pledge, or obligate 

in any,o,ther manner, any of the funds appropriated for the 

specific purpose of air conditioning "the halls, offices 

and committee rooms of the House of Representatives and 

Senate in the Capitol Building." 

3. Following the authority as set out by the 

Constitu,tion, Article 678m, Section 5, V.A.C.S., provides: 
Senator W. S. Fly, page 4 (WW-40) 

"The Commission is authorized 

to take any action and enter into any 

contracts necessary to provide for the 

obtaining of sites and the planning, designing, md construction of buildings and 

memorials provided for by Section 51b, 

Article III of the Constitution. . . .' 

Thus having been authorized to make contracts, 

both by the Constitution and by Statutes, any contracts 

made by the Commission, within the limits of the legislative appropriations, are effective to bind the State. 

The restrictive nature of Article VIII, Section 6 of the Constitution, which limits the legislative 

appropriations to not more than two years and provides 

that State money must be drawn from the Treasury by pursuance of specific appropriations made by law, has been 

interpreted as being a restriction on one Legislature 

making appropriations out of funds which will come into 

the Treasury during the sessions of subsequent Legislatures, and thus obliging every-new Legislature to determine the object for which State money is spent. Thus, 

an appropriation made by the Legislature can remain subject 

to use, by virtue of the foregoing Article, for only two 

years from the date such appropriation becomes law. This 

does not mean, however, that an obligation contracted 

during the period of the appropriation may not be paid 

by the Treasury after the expiration of such period. If, 

in fact, a claim is based upon obligations incurred 

or contracted during the period of the appropriation, 

such claim may legally be paid, subject only to Art.4357, 

V.A.C.S. 

Art. 4357, V.A.C.S., provides in part: "No 

claim shall be paid from appropriations unless presented 

to the Comptroller for payment within two (2) years from 

the close of the fiscal year for which such appropriations 

were made, but any claim not presented for payment within 

such period may be presented to the Legislature as other 

claims for which no appropriations are available." 

As this article has been previously construed in Attorney General's Opinions Nos. V-1416 and 

V-1535a, the Comptroller may pay all claims arising out 

of a valid contract entered into during the fiscal year 

during which such appropriation was made, at any time 
. 

“’ 

Senator W. S. Fly, page 5 (WW-40) 

within two (2) years from the end of said fiscal year. 

This article, thus construed, is not inconsistent with 

Article VIII, Sec. 6 of the Constitution, since It, in 

effect, provides that a contract which legally binds the 

State Is an encumbrance and Is effective to withdraw the 

funds from the unexpended funds of the Treasury and any 

valid claim presented within the two year limitation of 

Article 4357 can "be drawn from the treasury in pursuance 

of specific appropriation made by law." 

So long then as the Commission makes a contract 

within the biennium of the appropriation made by the Legislature, it can effectively obligate the State to pay the 

funds thus appropriated, upon valid claims arising by 

virtue of such contract, so long as they are presented 

for payment before the expiration of two years from the 

end of the period within which the appropriation is made. 

4. Article 86la, P.C., Sec. 1, provides: 

"It shall be unlawful for any officer 

of this State, or any employee thereof, or 

any other person to construct, build, or 

maintain within the Campus enclos,z'e around 

the Capitol in Austin any building, memorial, 

monument, statue or concession or other 

structure, without the authority of the Legislature theretofore given by statute Er concurrent resolution for that purpose. 

This article was not repealed by Art. 678m, 

V.A.C.S. However, it is noted that Sec. 12 of Art.678m, 

V.A.C.S., states, "the State Building Commission is 

hereby directed to make a careful survey of the most 

suitable site in the vicinity of the State Capitol for 

the erectlon of the said Supreme Court Building. In 

keeping with the foregoing considerations, the Commission 

is hereby specifically authorized, if the State does not 

already own a suitable site, to acquire such a site." 

In our opinion, this is sufficient to give the Commission 

"the authority of the Legislature" mentioned in Art. 861a, 

and exempt the Commission from the penalties provided for 

in Sec. 2, Art. 861a, P.C. 
Senator W. S. Fly, page 6 (~~-40) 

SUMMARY 

1. The Building Commission was authorized to begin the State Courts Building prior to the undertaking and completion 

of the air conditioning of the halls, offices, 

and committee rooms of the House of Representatives and the Senate in the Capitol Buildlng . 

2. The Commission is without authority to divert to the State Courts Building by pledge, or obligate in any other 

manner any of the funds appropriated for the 

specific purpose of air conditioning the halls, 

offices and committee rooms of the House of 

Representatives and Senate in the Capitol 

Building. 

3. A contract made by the State Building Commission within the biennium of the 

appropriation made by the Legislature is effective to obligate the payment of funds 

thus appropriated, upon valid claims arising 

by virtue of such contract, so long as they 

are presented for payment before the expiration of two years from the end of the period 

within which such appropriation is made. 

4. Article 678m, V.A.C.S., did not 

repeal Article 86la, P.C., however, it was 

sufficient to give the State Building Commission the authority of the Legislature 

to use any suitable part of the Capitol 

Grounds for the purposes therein stated. 

Very truly yours, 

WILL WILSON 

Attorney General 

ROS:bt 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler 

Chairman 

Bd!!?2!?* 

Assistant