. -

Honorable Homer A. Foerster Opinion No.M-1276 Executive Director State Board of Control Re: Authority of a State agency P. 0. Box 13047, Capitol Station occupying space in a State Austin, Texas 78711 office building on Board of Control inventory to expend specifically appropriated funds for certain space modifications under circumstances stated, and reDear Mr. Foerster: lated questions.

your request for an opinion reads as follows: "The Board of Control has performed certain special office modifications for State agencies occupying State office buildings on Board of Control inventories. These office modifications were considered tobe over and above normal repairs, maintenance and improvements forgeneral occupancy. The occupying agency, through Governor's authority, transferred funds to the Board of Control topay for such special modifications. The Attorney General's Opinion No. M-1199 has held invalid theGovernor's authority tomake such transfers. "Inasmuch as the Board of Control receives appropriations only for the normal maintenance repairs and improvements required forgeneral occupancy, no funds are available forproviding modifications peculiar to the special needs of theprograms of theoccupying agency. "Therefore, a formal opinion isrespectfully requested on the following questions:
"1

. Can 'aState agency occupying space in a State office building on Board of Control inventory expend specifically appropriated funds for certain spacemodifications which are considered tobe
-6264-Hon. Homer A. Foerster, page 2 (M-1276)

peculiar to the needs of that agency, necessary for the efficient performance of itsprogram, and which are considered tobe over and above normal building maintenance, repairs and improvements required for general occupancy?
"2

. If the above question is answered in the affirmative, can the Board of Control be reimbursed for the actual cost of rendering services of employees, services ofmaintenance, and/or services of equipment tomake suchmodifications through an interagency contract as authorized by Article 4413(32), V.C.S.?
"3

. If Question Number Two (2)is answered in the affirmative, is the Comptroller thereby authorized toprocess vouchers and draw awarrant for the reimbursement for the actual cost of services in accordance with the interagency contract?
"Inregards to Question Number One (l),reference ismade toArticle 673,V.C.S. wherein the responsibility of providing improvements and repairs is clearly within the Board of Control's authority. Reference ismade also toArticle 678f,V.C.S., Section 2, Paragraph (A),which in effect prohibits occupying agencies frommaking suchmodifications except through the State Board of Control as the 'UsingAgency." Reference is alsomade toArticle 4413(32), V.C.S. Section 3 and Section 6. In this regard, reference ismade toAttorney General's Opinion No. C-78 (May15, 1963) and Opinion No. M-695 (September 14, 1970). "Specific examples of the office modification required for agency programs are enumerated as follows: (1)Agency obtains computer equipment which requires additional air conditioning handling units. The Board of Control is called upon to provide and install these extra air conditioning units. (2)Agency personnel expansion resulting from new programs requiring modifications in office layout, requiring relocation, removal and/or additional partitions toprovide more efficient program functioning. (3)Agency installation of sophisticated mechanical equipment requiring special electrical service forproper functioning. -6265-Hon. Homer A. Foerster, page 3 (M-12?6)

II II

. , . .
held: InAttorney General's Opinion M-1274 (1972)itwas

"The State Department of Public Welfare may contract with the State Building Commission and the Board of Control for the renovation of the fifth floor of the John Ii.Reagan State Office Building, for the renovation of other portions of that building to,accomodatethe installation of computers and other equipment, and for the improvement of the defective elevator system currently inuse in that building."
Itwas pointed out in this opinion that the Legislature has provided that when improvements or repairs are needed in the proper care of State-owned buildings maintained by the Board of Control, the Board shall provide for such repairs or improvements. Articles 67Sf, 673and 665,Vernon's Civil Statutes.

Section 3ofArticle 678m,Vernon's Civil Statutes, provides:
"The Commission shall have the authority to promulgate such rules and regulations as itdeems proper for the effective administration of this Act. Under such terms and conditions asmay be provided by law, the Commission may acquire necessary real and personal property, modernize, remodel, build and equip buildings for State purposes, andmake contracts necessary to carry out and effectuate thepurposes herein mentioned inkeeping with appropriations authorized by the Legislature. Provided, however, that the Commission shall not sell or dispose of any real property,of the State, except by specific authority from the Legislature." Section 3ofArticle 4413(32), Vernon's Civil Statutes, provides inpart:

"Any state agency may enter into andperform awritten agreement or contract with other agencies of the state for furnishing necessary and authorized special or technical services, including the services of employees, the services ofmaterials, or the services of equipment.

. . .II

-6266-I. -

Hon. Homer A. Foerster, page 4 (M-1276)

The provisions ofArticle 678m and 4413(32) above quoted must be construed together with the statutory powers of the Board of Control toprovide for theproper care andmaintenance of Stateowned buildings maintained by the Board of Control.

As pointed out inyour request, the Legislature in making appropriations to the Board of Control for the proper care andmaintenance of buildings under itsmanagement and control, does not contemplate major renovations thatmay be necessary for theproper utilization of office space by the occupying agency. In certain instances thismay be accomplished through the State Building Commission under the authority granted to itby the provisions ofArticle 67Sm,Vernon's Civil Statutes, and inother instances itmay be accomplished through interagency agreements entered into by the Board of Control under theprovisions of Article 4413(32), Vernon's Civil Statutes.

Inview of the foregoing your questions are answered as follows:

Question 1. A State agency occupying space in a State office building under themanagement and control of the State Board of Control may expend appropriated funds for certain spacemodifications which are considered tobe peculiar to the needs of that agency necessary for the efficient performance of itsprogram and which are considered tobe over and above normal building maintenance, repairs and improvements required for general occupancy.

Questions 2and 3. Thismay be accomplished by the occupying agency and the Board of Control entering into an interagency agreement pursuant to theprovisions ofArticle 4413(32), Vernon's Civil Statutes.
SUMMARY

A State agency occupying space in a State office building maintained and controlled by the Board of Control may expend specifically appropriated funds for certain spacemodifications which are necessary to thepeculiar needs of that agency necessary for the efficient performance of its program andwhich are considered tobe over and above normal building maintenance, repairs and improvements required for general occupancy, and such agency may enter into an interagency contract with

-6267~Hon. Homer A. Foerster, page 5 (M-1276)

the Board of Control for such purpose.

General of Texas Prepared by John Reeves Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman John Banks J. C. Davis Roland Carlson Harry Green
SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALXER Executive Assistant
NOLA WHITE First Assistant

-6268-