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 that your Board need not be governed 

.by the 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 ,or under 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; 

,the other 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- 

,$f plumbing 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 to be used ip the building. 

for’ the plsintiff. the court said: 

Affirming ‘a judgment, 

aI 

. . . . There is no question raised as to reason: 

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

of its board ,of public improvements, -nor as to wheth-.. 

er either. system, of venting is superior: to ,the other, 

but the’case .$s presented 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.q 4p: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- 

“‘phe powers 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 the laws 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, 

and with 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 ~the subject of 

this litigation, ventilating and sanitary machinery and 

apparatus to be ‘installed and..maint+ned’for the remov- 

.il from the building ~of foul 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.uld pre-’ 

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 ,to the sovereign, 

and whether 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.Ke highest, go&nmeatal 

purposes, and we 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 .we have only to look to the cqaverse of 

@uz proposition stated by counsel for appellant. The 

question is not whether a law, of gene+ appBcatioa 

‘.in the 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 the field 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, 166 Cal.’ 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 .a building within the l$mits of the city 

,is. not invofved. but only the quest&on as to which of 

‘those two contending municipalities is clothed by 

stat&a with the wright to determine interior s4tary 

arr’aageme+s for the veatilatioa,of-its water-ckosets, 

SO, as to promote the health and comfort ‘of the pupils 

and teachers who shou$d be Sts inmates.. We t&ink it 

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&e matter,. 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 the jurisdiction are Kentucky Ins$itu@on for Education 1 of .Blind 
HOI+ Claude Gilmer; Page 5 (V-977) 

413’ 

city, 52 .Utah 540,175 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, 201 S.W.2d 930 (Tv47); .$red@c v. Board of Jsducation of 

City of St, Louis. %o, Ul S W Ld -9) P d 

~a004 LXS+ y. cifif PasSZi& 166 k;.’ 7.’ Iu4 Pac. b* 

and En Parte Means. 14 G.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 .the state 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 ‘duty it 

mast be presumed has been performed.* Johnson vi 

State of Maryiand,’ 154 U.S; 51.57. -.41 S.Ct. 16,17, 65 L. 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, .the municipality has no power ,to regu- . 

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 9 Am. 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 

‘to well-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&e has been held applicable to a 

s&o4 district organized by the &egislature, which 

includes. the municipal corpora.ioa or a part thereof 

viit&.ia the 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 not b-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 contain any 

prov&ion inconsistent *th the ~oastitution of the 

State.~ or of .the general 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 Of this 

state. .,.” 

U65). 

(Twr. Civ. ‘Stat. (Vernon, 1948) Art. 
Ho& Claude’Gilmer, Page 7 (6-977) 

This limitation isn the 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, 142 Tex. 190; 176 S.W.2d 928~ (1943); City 

of Corpus Ghristi v; Texas Driverless Co., 187 S.,W.td 607 (E 

cav. App. 1945). mod. 144 T ex. cr79.rs-w 

ment Co. v. ‘City of Houston. 185 S.‘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, 140 Tex. C&m. tll. 143 S.W.2d 786 

‘In examining the statutes relating to the Board for 

Texas State l-Joi:pitalb and Schools, we find the foilowing provision in the a&creating the board: 

: Sec. 2. ~‘Upon the effective date ofthis Act, 

the Gi%&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$xecutive Director and such other personnel necess* 4m qdrq out the provisions ‘of this 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 .by the 

Board of Control over such buildings. 

of %e ~&at&es are s.8 follows: 

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 ‘of public 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 Board shall 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 and workmanship, of e&h buiiding,’ structure and addition thereto built for the 

State out of,brick or stone or substitutes’therefor, 

aa shaJl see that the same are 00?8tructea in accordance with the contract plans and specificatio~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 and their 

connections~in the use of the public 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 .the chief 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 fulJ power aver 

the design, construction, and repair of buildings erected for the 

ase of the st&e hospitals and speci* schools, including the particular power sought here to be exercised by.the city. .This power 

having been .given to the board 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 the board. Iusofar as such, o,r.dinances 

\ 
Hon. Claude Gilmer, Page;9’ (V-977) 

are .+consistent with .tha stptutes. .they ,are ,beyond the~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,to a0 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 ‘and safety:of.the public.” 

-Sec. 23. All prOjisi,ons Of this Act are heriby declar.ed IO constitute &mum requirements of 

sanitation ana health protection within ,the State 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 tithe authqity of Home Rule 

Cities to enact ordinances as granted $0 them under 

Article XI; Section 3 of the State COnMitution, and Articles 1175-76 of 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 the public. 

As we read Section 23, it makes pl+in tbe.power of 

home rule cities to enact more stringent ordinances. ‘We find 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