, 

, 

The Attorney General of Texas 

October 24, 1979 

MARK WHITE 

Attorney General 

Honorable Lee Drain 

Texas State University System 

505 Sam Houston Building 

Austin, Texas 78701 

Opinion No. NW- 7 6 

Re: Coordinating Board approval 

of construction project for 

Southwest Texas State University. 

Dear Mr. Drain: 

You inform us that on January 26,1977, the Coordinating Board, Texas 

College and University System, approved construction of Phase II of a MultiPurpose Building on the campus of Southwest Texas State University. The 

Coordinating Board gave its approval under section 61.058 of the Education 

Code which at that time did not authorize it to consider cost of construction 

projects in giving its approval. See Attorney General Opinion H-762 (1976). 

Thereafter the legislature amended section 61.058(8)(A) of the Education 

Code to provide that the Coordinating Board could consider “cost factors 

and the financial implications” if the total cost of the project exceeded 

$500,000. The cost of the building exceeds this figure. This amendment 

became effective approximately seven months after the Coordinating Board 

approved Phase II. The Commissioner of Higher Education subsequently sent 

to the colleges and universities a memorandum containing the following 

language: 

If bids on a project approved by the Coordinating 

Board exceed cost estimates by more than ten 

percent or reduce square footage projections by more 

than ten percent, then the proposed project is subject 

to another review by the Board. 

Bids on the Phase II project have exceeded cost estimates by more than ten 

percent. Based on these facts, you ash the following question: 

Does the Board of Regents, Texas State University 

System, have authority to award a construction 

contract for the Multi-Purpose Building, Phase II, 

which exceeds cost estimates by more than ten 

percent, without another review by the Coordinating 

Board? 

P. 231 
Honorable Lee Drain - Page Two (NW- 7 6 1 

The memorandum requiring a resubmission of projects when the bids exceed the 

anticipated cost by more than ten percent is not a rule or regulation of the Coordinating 

Board. It is merely a part of the application which colleges and universities are required 

to submit to the Coordinating Board when they seek approval of building projects. It was 

first used September 2, 1977, more than seven months after the Southwest Texas State 

University project was approved. While the requirement set out in the application could 

serve to condition approval granted after September 2, 1977, it &es not purport to affect 

applications approved prior to that time. Since the requirement for resubmission appears 

only in the application for approval, there is no necessity to determine whether the Board 

could require projects approved before September 2, 1977, to be presented to it again for 

additional review. Accordingly, there was no requirement that the Southwest Texas 

project be resubmitted to the Board. 

Even if the Coordinating Board could withdraw its prior approval, it has not done so 

here. The October 19, 1979, motion to approve the project was defeated by a tie vote. 

While the tie vote caused the motion to approve to fail, it did not result in a disapproval 

of the project or a withdrawal of the 1977 approval. Accordingly, the 1977 approval is still 

effective, and the Board of Regents of the Texas State University System has authority to 

award a construction project on the basis of the Coordinating Board’s 1977 action. 

SUMMARY 

The Regents of the Texas State University System may award a 

construction contract based on Coordinating Board approval of the 

project secured in January, 1977. 

Very truly yours, 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Susan Garrison 

and C. Robert Heath 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

P. 232 
Honorable Lee Drain - Page Three (MW-76) 

Bob Gammage 

Susan Garrison 

Eva Loutzenhiser 

Richard Rafes 

William G Reid 

Bruce Youngblood 

p. 233