Senator W. S. Fly Chairman of the Committee onFinance 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, 54thLeg., 1298, ch. 514,Article 6P?8m,V.A.C.S., and the effect of such Act as to the repealing ofArticle 861a, P.C.

Dear Sir:

We have received your request for our opinion dated February 12, 1957,which propounds the following questions:
"1. Was theBuilding Commission, created under Article 678m Vernons Annotated Civil Statutes, authorized tobegin construction of the State Courts Build,ingwitho,uthaving undertaken and completed the airconditioning of the halls, offices and committee rooms of theRouse of Representatives and the Senate?
"2o Was theBuilding Commission authorized toenter into a contract for the construction of the State Courts Building and pledge funds required tobe expended for such air-,conditioningproject aforesaid?
"3~ Is the Building Commission authorized toenter into a contract pledging moneys beyond aperiod of twoyears?Senator W. S. Fly, page 2 (WW-40)

I!4. Did theBuilding Commission Act, namely, Article 678mrepeal the Penal Act, towit: Article 861a of the Penal Code, lnsofar as itsdepredation of theCapitol grounds?"
1. Article III, Sec. 51b, Subdivision (c) of the Constitution prescribes thepowers and duties of the Commission as follows:

"Under such terms and conditions as are now ormay be hereafter provided by law, the Commission may acquire necessary real andpersonal 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 thepurposes herein mentioned."

Itwill 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 forState purposes. Each of the five acts enumerated arewithin themselves separate anddistinct functions of theCommission.
Article 678m, Sec.qa, V.A.C.S., authorized the Commission toengage In two acts by stating: "The first major modernizing and remodeling program tobe.

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

undertaken under theprovisions of thisAct shall be the air conditioning of thehalls, offices and committee rooms of theHouse ofRepresentatives 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 theCommission from pursuing,any of the other three func,tionsenumerated byArticle III, Sec. 51b, subdivision (c) of the Constitution. The last sentence ofArticle 678m, Sec. ga, does not serve tobroaden the scope of the language used in the first sentence of said Sec. ga, but mereiy indica~testhat thismodernization and remodeling to 'befirst ,undertakenshould be completed with all dispatch.

It follows then that theBuilding Commission was authorized tobegin theState Courts Building prior to the undertaking and completion of the air conditioning of thehalls, offices and committee rooms of the House of Representatives and the Senate in the Capitol Building.
2. Article III, Sec. 5lb, Subdivision (b) of theConstitution provides, "TheState 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 Fundwithout a legislative appropriation. This appropriation must be specific innature, inview of Article VIII, Sec. 6 of the Constitution. Examination of the appropriations made inArt. 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,thermanner, any of the funds appropriated for the specific purpose of air conditioning "thehalls, offices and committee rooms of theHouse of Representatives and Senate in the Capitol Building."

3. Following the authority as set outby the Constitu,tion,Article 678m, Section 5,V.A.C.S., provides:Senator W. S. Fly, page 4 (WW-40)

"TheCommission is authorized to take any action and enter into any contracts necessary toprovide for the obtaining of sites and theplanning, designing, md construction of buildings and memorials provided forby Section 51b, Article III of the Constitution.

. . .'

Thus having been authorized tomake contracts, both by the Constitution and by Statutes, any contracts made by theCommission, within the limits of the legislative appropriations, are effective tobind the State.

The restrictive nature ofArticle VIII, Section 6 of theConstitution, which limits the legislative appropriations tonot more than twoyears and provides that State money must be drawn from theTreasury by pursuance of specific appropriations made by law, has been interpreted asbeing a restriction on one Legislature making appropriations out of fundswhich will come into theTreasury during the sessions of subsequent Legislatures, and thus obliging every-new Legislature todetermine the object forwhich State money is spent. Thus, an appropriation made by the Legislature can remain subject touse, 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 theperiod of the appropriation may not be paid by theTreasury after theexpiration of such period. If, in fact, a claim isbased upon obligations incurred or contracted during the period of the appropriation, such claim may legally be paid, subject only toArt.4357, V.A.C.S.

Art. 4357, V.A.C.S., provides inpart: "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 forwhich such appropriations were made, but any claim not presented forpayment within such period may be presented to theLegislature as other claims forwhich no appropriations are available."

As this article has been previously construed inAttorney General's Opinions Nos. V-1416 and V-1535a, the Comptroller may pay all claims arising out of avalid 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, isnot inconsistent with Article VIII, Sec. 6 of theConstitution, since It, in effect, provides that a contract which legally binds the State Is an encumbrance and Is effective towithdraw the funds from theunexpended funds of the Treasury and any valid claim presented within the two year limitation of Article 4357 can "bedrawn from the treasury inpursuance of specific appropriation made by law."

So long then as the Commission makes a contract within thebiennium of the appropriation made by theLegislature, it can effectively obligate the State topay 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 twoyears from the end of the period within which the appropriation ismade.

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'earound the Capitol inAustin any building, memorial, monument, statue or concession or other structure, without the authority of theLegislature 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 ofArt.678m, V.A.C.S., states, "the State Building Commission is hereby directed tomake a careful survey of themost suitable site in the vicinity of the State Capitol for the erectlon of the said Supreme Court Building. In keeping with the foregoing considerations, theCommission ishereby specifically authorized, if the State does not already own a suitable site, to acquire such a site." In our opinion, this is sufficient togive the Commission "the authority of theLegislature" mentioned inArt. 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 tobegin the State Courts Building prior to the undertaking and completion of the air conditioning of the halls, offices, and committee rooms of theHouse ofRepresentatives and the Senate in the Capitol Buildlng

.2. The Commission iswithout authority todivert to the State Courts Buildingby pledge, or obligate in any other manner any of the funds appropriated for the specific purpose of air conditioning thehalls, offices and committee rooms of theHouse of Representatives and Senate in the Capitol Building. 

### 3. A contract made by the State Building Commission within thebiennium 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 forpayment before the expiration of twoyears from the end of the period within which such appropriation ismade.
4. Article 678m, V.A.C.S., did not repeal Article 86la, P.C., however, itwas sufficient togive the State Building Commission the authority of the Legislature touse 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