Hon; Claude Gilmer. Chairman

Board for Texas State Hospitals and Special Schools Austin. Texas Opinion No. V-977 Re: The applicability of a city building code to construction on state property within the city limits. Dear Sir: Your letter states that:

‘At the present time. this Board is constructing two employees* residences’at the Austin State Hospital., Specifications call for a two-inch bathroom vent. An ordinance of the.City of Austin requires a four-inch vent. yThi City of Austin is threatening to sue for revocation of the~license of the contracting-plumbing firm. if they proceed with the State’s specifications.

‘Question: Does a city ordinance relative construction govern,construction on state property within the city limits?’ It is our opinion thatyour Board need not be governed .bythe city building code in regard to the plumbing specifications in the buildings mentioned. ’

The question of the applicability of municipal ordinances to buildings and facilities erected or operated by ,orunder the authority of the state has never been passed upon by any Texas court. Courts in only six states (California, Georgia, Kentucky, Missouri, Utah, and Wisconsin) have written on this question. of these states, three (Georgia, Kentucky and Wisconsin) unqualifiedly hold such ordinances inapplicable to state buildings; ,theother threes(California, Missouri and Utah) hold them applicable for some purposes but inapplicable for other purposes.Hon. Claude’ Gilmer. Page 2 (V-977)

Our conclusion from these cases is that it is a matter of statutory interpretation as to whethermuuicipal ordinances apply to buildings erected 

### or operated by or under the authority. of the State. Each case .requires an examination of the statutes to determine what powers have been given by the legislature to the particular state board or agency involved and what powers can be exercised by the municipality. If the regulatory power in question has been given by the legislature to the state board or agency, the effect is to limit the comparable regulatory power of the municipality in so far as it conflicts or is mconsistent vdth the power given the board or agency.

The case most nearly in point on this question, because of the Qpe of regulation involved, is .Board of Education of City of St. Louis.v. City of.St. Louis. 267 &lo. **Oifb, 184**  **8 TV-** 

**. .-**  **lylb)**

**. llu**  s was au action to eajom the city and its 

### super- ,$fplumbing from interfering with the co+ructioa of a - schooX’building in $.he. city. The &iaaace sought to be enforced by the city pertained, as does the one now in question, to the typz of.‘ients tobe used ip the building. for’ theplsintiff. the court said: Affirming ‘ajudgment,

aI

.. . . 

### There is no question raised as to reason: ableness of the 

### ordia+i&s of the city or.regu$atioas ‘

. of its board ,ofpublic improvements, -nor as to wheth-.. er either.system, of venting is superior: to ,theother, but the’case .$spresented and discussed upon-the broad propokitioa as to whether or not the board of education ,. ip this particuhr, is +bject to the ordinances snd regulationg of the city in this respect.

. , l

. “&ctioa 26 of article 3 of the charter then in force provided, among other things, that the mayor .a& assanibly s+aWJuive pow+r. ‘* .tlnekity,-~y4qliaaace ZlO&iUCt+SiS~’ ‘the ‘6QUr‘titatton OF .?+i;aW Of this .st&e ‘Qr.

of2t$&whkiteF, t.q4p:t+%:~i#ou&ug~s: :In ..clauae&‘tocoi&uct%nd~keep in:&@+ &I3 bridges, stmd-s, seweks;and-drains, and~~rigolate theuse., ~. ‘

. fhereod; la clause ,12,,to-.prqde for +&a safe construe-

“‘phepowers and ,duties of this board (of educatioa)~**Hoa.** Claude Gilmer, Page 3 (v-977)

were higbly specialized in the act, and included the

‘general and supervising control, 

### giweraing, aud management of the public schools, and public school property in Such’city,’ the power toappoint such officers, agents and ‘employes as it may deem necessary and proper, to make, amend, and repeal rules and by-laws for the government. regulation and management of the public schools and school property in such city, and exercise generally all powers in the administration of the public school system therein; and have all the powers of other school :districts under thelaws of the.state except as herein provided. Particularizing further, it provides for the appointment by the board of education’of a cotimissiioner of schoolbuildinge who ‘shall be charged with the care of the public school buildings of such city, andwith the responsibility for’t$e veatiJation, warming, sanitary condition and proper repair thereof, and shall ~prepare, or cause to be prepared. all specifications and drawings required, and shall superintend ‘all the construction and repair of all such buildings.’ In )he perform&e of.these duties he was requiire,d tc appoint s@ assis-’ tants as should be authorized by the’board of education, one of who&i “shall be a trained and educated enp-ineer. qualified to design and con&ruct the‘heating, lighting, ventilating, and sanitary machir.$ry and apparatus coanetted with the public school bmldmgs.
-It will be noted that this &t not only gives the board of education plenary power with reference to the construCti@; m~ntenaxice. and care of the public school buildings of the city; but descends into matters connected with the health and comfort of the pupils, including the designing as well as the construction and;maintenance of the very appliance, which are ~thesubject of this litigation, ventilating and sanitary machinery and apparatus to be ‘installed and..maint+ned’for the remov- .il from the building ~offoul and nokiqus air -necessarily generated in the use of the water.-closets. “We’have been favored by counsel on both sides with exhaustive and highly iutere$ing briefs and argumeats relating to the presumptions whkh sho.uldpre-’ vail in determining whether’L&ws ef’the character of the charter of St. Louis and ordinances passed in pursuance of its terms are applicable ,tothe sovereign, andwhether they are repealed by general laws which do not in terms mention them. We cannot appreciate the application of either of these questions to this case. The f&t does not rest upoipresumption, forsovereign-

## 4112 Hon. Claude Gilmer, Page 4 (V-977)

ty itself has dealt with the ‘subject of the construetioa and management of the property which is held aud

### used by its agents for:t.Kehighest, go&nmeatal purposes, andwe have to look no further than its legislative declarations to determine in **whom** the authority claimed by each of the-parties. to this proce,ediag.is vested; and as to the second question,so ably argued .wehave only to look to the cqaverse of @uzproposition stated by counsel for appellant. The question is notwhether a law,of gene+ appBcatioa

‘.inthe City of St. Louis impliedly repeals any of the provisions of a special **act** or charter for the goverament of that community, but it is whether the general charter yields to the prov$sions of a law ha-g special application to particular matters,and things with-. in thefield of ita operation. The statement of this question includes ita answer. ” !.t We have carefuBy examined the authorities cited by the appella& apd f*d but oaeF.Pasadena School District v. Pasadena, 166Cal.’ 7,134 Pac. **985. 47**  L.R.A. (N.S.) **892,** Ann. Gasi iSUB, x039,which seems to qkestioa the view we have taken.

. t

. *It wiil be seen that the issue, in that case was entirely different from the issue in this. Here the right to erect .abuilding within the l$mits of the city ,is.not invofved. but only the quest&onas to which of

‘those two contending municipalities is clothed by stat&a with thewright to determine interior s4tary arr’aageme+s for the veatilatioa,of-its water-ckosets, SO, as to promote the health and comfort ‘ofthe pupils and teachers who shou$dbe Sts inmates.. We t&inkit is peculiady appropriate that those chang J-y..? : Aiih the custody and central of the pupils whiSe’.in e buiM+g: should also be charged with the pr.ote@oa of tber

“. health wh+le engaged in their studies. The.Legis$r+ tqre seems tg have taken this vies-f t&ematter,. a+3 has, in our opinioti in unn$stakable terms placed, that.r.esponsibility upon.the board. !

. *v. The +er cases which &iscus.s:+.I@ appBcabi$ty of mu+ nicipsl ordinances to state agencies under the particular-:sta

‘of thejurisdiction are Kentucky Ins$itu@onfor Education 1 of.BlindHOI+ Claude Gilmer; Page 5 (V-977) 

## 413’

city, 52.Utah540,175 Pat, 654~(1918); City of Fultoa v. Sims, 106 s;wI 1094(1908); **‘ Kansas**  City v. School Dist..of Kansas City; 356 .h,fo.364, 201S.W.2d 930 (Tv47);.$red@c v. Board of Jsducationof City of St, Louis. %o, **Ul S**  **W Ld**  **-9) P**  **d** ~a004 LXS+ y. cifif PasSZi& 166k;.’ 7.’Iu4 Pac. b* and En Parte Means. 14G.2d 254, 93 P.2d 105(1939).

In this last case. Ex Parte Means, the question was 

### %ðer a state employee (plumber), working entirely on state properly, may be punished for his failure to comply withthe muuicipal requirement’ of a license. In ordering petitioner discharged fromcustody, the court said:

“There can be no question concerning the power of .thestate in its proprietary capacity to lay down the qualifications for its employees. It acts in an exciusive .fie&d(citations), and is not subject to thclegisla- ” tive enactments of subordinate goveramea~ agencies. For example. it has been held that a state has no power to re+ire employees of the United States lo obtaina. license to **operate** an automobile. ‘Such a’requirement,’ said.the Supreme Court of the United States,~‘does not me.rilytouch the Government servants remotely by a. generalmile of conduct; it lays hold of them in **their** specific al#empt to obey orders and requires qualifications in .addition’to those that the Government has’pronouuced sufficient. It is the duty of the Department to -&by persons. competent for their work and that‘dutyit mast be presumed has been performed.* Johnsonvi State of Maryiand,’ 154 U.S; 51.57.-.41 S.Ct. 16,17,65L. ed. l26.,,Furthermore, considering the language of the particular enactment now in ~questioa. it is a rule of statutory construction based upon sound public policy that the state is not bound by the provisions of a charter or **,ordi-~** nance unless it isarientioaed specifically or by aecl&e+ry

‘iaqilication. ,-(Cita..&s) Courtswill not assume. a legisIative.intention on the part of ,a.city council to interfere. wit+ the acts of the general government. In 62 C.J.S. 319-320, it is stated thatz “Property of the states, is exempt from municipal regulation in the absence of waiveron the part of the state of its right to regulate its ownproperty; ,snd such waiver will not be presumed. The municipality cannot regulate 

### or control any property which the ~state:has authorized another body or power to control. Thus it has been held under some statutes that, where the legislature has placed the control of public schools in boards

## 414 Han, Claude Gilmer, Page 6 (V-977)

. of education, .themunicipality has no power ,toregu- late the tioastructioa of public school bnildings, but a@er Other statut&s creating school districts a school building within the municipal territory must comply with the municipal requirements.*
In 9Am. Jur. 202, Buildings, Sec. 6, it is said:

:

‘The courts are not entirely agreed as to the applicability of municipal building regulations to buildings erected within the municipal limits by or ~. under the authority of the state, or by a county or other political subdivlsioa of the state. According

‘towell-reasoned cases, a county in erecting.buildings within the limita of a municipal corporation must comply.with such proper building regulations as the municipality pursuant to its police power has imposed. A lilce ru&ehas been held applicable to a s&o4 district organized by the &egislature, which includes. the municipal corpora.ioa or a part thereof viit&.iathe limits, +withsbarlinp the school district is organized 

### .mader a gene@ law, and its trustees

. are invested with powe,r to plan and build schoolhouses and control and manage a affairs of the school. However, a legislative grant of p&ice .powei to a municipal corporation will notb-deemed a cession of the ~egis~ature’s. prerogative to 

### gov.erp for. itself the *Istitutioas of the state which may be .located within such municipality, unless it may be clearly gathered from, the latter act that.such was the legislative intent. Other decisions take the position that municipal building regulations do net apply to school buildings erected within the municipal limits under l~egislative authority.,” &t$ougb:home rule cities have broad leg&tory powers, these powers ar.e limited by the foilowing cons~tution~ and statutory provisions:

u

. . . providing that no charter,.or any ordinance passed under said charter shall containany prov&ion inconsistent *th the ~oastitution of the State.~ or of.thegeneral laws enacted by the Legi&a-, tare of tbis.State

. e
. ..c (Tex. Coast.. Ark II, Sec., 5.1 *No charter or 

### aay~prwces passed under said charter, shall contain any provision incon&-,, tedwith the~Constitu~cp pr ge#era$ laws Ofthis state. .,.” U65). (Twr. Civ. ‘Stat. (Vernon, 1948)Art.**Ho&** Claude’Gilmer, Page 7 (6-977)

This limitation isnthe power of home rule cities has been recognised by the,Texas courts in-the following cases: Prescott v; City of Bor’ger, !58’S.W.2d 578 (Tex. Ci< App; 1942,**err.** r&J; City of~Houston:v.‘State, 142Tex. 190; 176S.W.2d 928~ (1943); City of Corpus Ghristi v; Texas Driverless Co., 187S.,W.td 607 (E cav. App. 1945).mod. 144Tex. cr79.rs-w ment Co. v. ‘City of Houston. 185S.‘W. . 4$5 .2d’484;%F* (Tex. Civ.

‘r - et **v. Uv+ltle.**  **LO** S.W.2d 493 (Tex. **Civ. ‘** **App. 1929,**  **err.** dis&; *;x parte N. (194!3). ewberg, 140Tex. C&m. tll. 143S.W.2d 786

‘In examining the statutes relating to the Board for **Texas** State l-Joi:pitalbandSchools, we find thefoilowing provision in the a&creating theboard:

: Sec. 2.
~‘Uponthe effective date ofthis Act, theGi%&npr shall appoint ths Board @rovided in this tit dnd,the~

Board sliall &&eed toorgariise as required by Section 5 of this Act and employ the J$xecutiveDirector and such other personnel necess* 4mqdrq out the provisions ‘ofthis Act. :“ectivc September 1.1949; the control and’manasemenf. of. a&aU’rfghts, privileges, powers. and duties in- ;‘designs and con-

..~.s.* (Empbasjs 5s. 1949, ch:316,..p.
Thus, to determine what powers over the desigri’and construction of state hospitals and special schools are now vested in theBoardfor Texas-fXateHoepituls and Schools. we must ~amiue .the:atdute~ to+ee~-what powers, were possessed .bythe Board of Control over such buildings. of %e ~&at&es are s.8follows: Ths pertinent provisions

‘T.hes&t~:Board of Control shall have charges and eontrol.of.~aD public buildin s, grounds and~proper* of~the State; ‘

. ; .* (Art. 685) 9 “The Board shall prepare plans and specificstions for improvement and repairs to public buildings or property of the state, &d shall superintend through its -diVi&in ‘ofpublic buildings and grounds,, the construction of said ‘work when such .supervision ‘is not otherwise especially provided for by law.” (Art. 670).Hon. Claude Gilmer, Page 8 (v-977)

Vhe 

## Boardshall inspect all plans 

## ana specifications for the public buildings and the additions .thereto to be constructed for the State before such plans and specifications are adopted. The Board may reject any and sll such plans and specifications, ad it shall have full and final 

## superiatendence over all buildings, structures or additions thereto that may be constructed for the State.’ (Art. 671)

‘The Board s&U carefully examine and inspect the material andworkmanship, of e&h buiiding,’structure and addition thereto built for the State out of,brick or stone or substitutes’therefor, 

## aa shaJlsee 

## that the

## same are 

## 00?8tructeain accordance with the contract plans 

## andspecificatio~us *emfor. ,The work, workmanship and the material thereof shall be subject to the approval of the Board.‘* (Art. 672). “The Board shall give special att&tio.n to the effective maintenance of the State sewers 

## andtheir connections~in the use of thepublic buildings, and

,.. s-hall see that such sewerage and connect+ns. at aJl tunes -be kept in a sanitary condition. 674). . . .-. (Art.

“The Board may select a chief of ‘its c3iyisio.n of design. construction and maintenance who shall began architect of not less than five years expert: ience.nextpreceding his selection in the actual design, superizitendency,snd construction of buildings.” (Art. 679). .“The Board may employ experts -ofmasonry, plumbing, electrical construction, landscape garden- .mg.~ ano.such.otherexperts as may’be.,necessary, as .assis.tants.to.thechief of this division.” sis supplied) (Art. 680). (emphaThese statutes make it clear that there is~now vested .in the Board for Texas State Hospitals and .Schools fulJpower aver the design, construction, and repair of buildings erected for the ase of the st&e hospitals 

## andspeci* schools, including the particular power sought here tobe exercised by.the city. .This power having been .given to theboard by &e legislatures an attempt by a

‘municipality. home rule or otherwise, to regulate the construction

‘of these buiidings .by ordina&es is inconsistent with tha above sta* tutes.giving this power to theboard. Iusofar as such,o,r.dinances \Hon. Claude Gilmer, Page;9’ (V-977)

are .+consistent with .thastptutes. .they,are ,beyondthe~power of the municipz$ity~a~ therefOre unenforceable,as agaihstthebOard:or the State, As support for a contrary view, we are cited to An act to Promote the Public Health, Acts 1945:ch. 178,p. 234; Art. 4477-l V.C.S. This Act prwides certain minimum standards of sanitation and health protection measures. It contains twenty-four sections snd many subsections. Most of the,provisions are so worded as to place on specific.c~as.ses of persons, some specific 

## autp,toa0 or not t0

## a0 some specific thing. Several sections expressly relate t0 governmental agencies .snd.mupicipaI corporations. The sections to which we are cited do not specifically refer to the state. They read as folloys:

“Sec. 8. Any and all Public buildings hereafter constructed shall have ‘mcorporatsd therein all such heating, ventilation, plumbing, screening, and rat-. proofing features as may be.nrcessary to properly protect the health ‘andsafety:of.the public.” -Sec. 23. All prOjisi,ons Ofthis Act 

### are heriby declar.ed IOconstitute **&mum** requirements of sanitation 

## ana health protection within ,theState of Texas and shall in no way affect the authority of Home Rule Cities to enact more stringent ordinances pertaining to the matters herein referred.+, and shallin no way affect titheauthqity of Home Rule Cities to enact ordinances as 

## granted$0them under Article XI; Section 3 of the State COnMitution, and Articles 1175-76of the.Retised Civil Statutes of 1925.” Even if the above provisions are-given the broadest application permitted by 

### their terms, they are no grant of authority to cities to-enforce .plumbiig codes against state agencies authorized by the legislature to construct buildings for the use of the state. Se&ion. 8 is .a general ‘provision which. ‘we‘thinh. does ap-

. ply to “all public buildings? including those of the State. Theeffeet of such provision, however, is not to place authority in ‘one governmental agency to regulate plumbing in buildings constructed by another, but to place on.the proper public officers and agents, state and municipalr the duty to incorporate in a+y..public~building constructed under.their supervision the necessary features to protect the health and safety of thepublic.

As we read Section 23, it makes pl+in tbe.power of home rule cities to enact more stringent ordinances. ‘Wefind in such section no inten$. express or implied,. that such cities .may regulate plumbing on state property.

## 41.8
Ho+ Claude GiImer. Page 10 (V-977)

It is not our opinion that any state officer or ~agency may lawfully construct or equip a state building so as’to constir tute a public nuisance or a danger to pub+ health or safety..
SUMMARY The provisions of a city building code, setting up certain plumbing standards; are not appIicable to regulate construction of buildings by the State on State property within the city limits.
Yours very truly,

BHRzb



# V FIRST ASSISTANT ATTO?.NJ3YGENJZIUU