September 14, 1970

Honorable Ben Barnes Lieutenant Governor ofTexas Honorable Gus Mutscher Speaker of the House of Representatives Austin, Texas

Gentlemen: Opinion No.M-695
Re:Authority of the Senate and House of Representatives to enter into a contract direct with the State Building Commission for certain "building repair and remodeling" and topay certain funds for such services.

Inyour letter requesting an opinion from this office, you submit the following fact:

"InHouse BillNo. 2, Pets of the 61st Legislature, Second Called Session,*the Senate and House of Representatives have appropriations provided to themwhich inpart permit 'building repair and remodeling and other expenses' of the Senate and House ofRepresentatives,“ With regard to this fact you ask the following question:
"Dothe Senate and House of Representatives have the authority to enter into a contract direct with the State Building Commission for 'building repair and remodeling' and to transfer to theBuilding Commission such portion of said appropriated funds as arenecessary topay for suchbuilding repairs and remodeling under the terms of the contract?"

* General Appropriation Act

-3354-Hon. Ben Barnes, Hon. Gus Mutscher, page 2 (M-695)

Section 51-b,Article III, Texas Constitution, added November 2, 1954, created the Texas Building Commission. Paragraph (b) of Section 51-b states, inpart, as follows:

"Sec. 51-b(b) The State Building Fund is hereby created.
. .This provision is self-enacting. The State Building Fund shall be expended by the Commission upon appropriation by theLegislature for theuses and purposes set forth in subdivision (c) hereof." Paragraph (c)of Section 51-b ofArticle III of the Texas Constitution provides as follows:

"(c) Under such terms and conditions as arenow ormay be hereafter provided by law, the Commission may acquire necessary real andpersonal property. salvage and dispose ofproperty unsuitable for State purposes, modernize, remodel, build and equipbuildings for State purposes, andnegotiate and make contracts necessary to carry out and effectuate thepurposes herein mentioned." Article 678m, Vernon's Civil Statutes, was enacted pursuant to Section 51-b,Article III, Texas Constitution. The provisions of Article 618mmost pertinent to our discussion are quoted as follows:

"Section 1. The State Building Commission

. . .ishereby declared tobe a State agency for performing the governmental functions outlined in Section 51-b ofArticle III of the Constitution of the State, ... "Section 3.
...Under such terms and conditions asmay be provided by law, the Commission may acquire necessary realand personal property, modernize, remodel, build and equip buildings for

-3355-Hon. Ben Barnes, Hon. GUS Mutscher, page 3 (M-695)

State purposes, andmake contracts necessary to carry out and effectuate the purposes herein mentioned inkeeping with appropriations authorized by the Legislature
..." #I

... "Section 5. The Commission is authorized to take any action and enter into any contracts necessary toprovide for the obtaining of sites and the planning, designing and construction of the buildings andmemorials provided forby Section 51-b,Article III of the Constitution, and the Commission isalso authorized to take any action and enter into any contracts to obtain sites which itdeems necessary in order toprovide for the orderly future development of the State Building Program which iscontemplated by thisAct, insofar as appropriations permit.
. ." Attorney General's Opinion WW-llZO(1961) held that the provisions of Section 5, supra, and Section 8 ofArticle 678m. Vernon's Civil Statutes, would constitute sufficient authority for the State Building Commission to obtain theservices of and enter into contracts with other State agencies and that "contracts entered into by the State Building Commission with other State agencies pursuant to the provisions ofArticle 678m do not require the approval of the Board of Control." Article 678f, Vernon's Civil Statutes, isknown as the "State Building Construction Act." The purposes of theAct are stated in Section 1as follows:

"Thepurpose of thisAct is toprovide for the orderly planning ofbuildings constructed by the State, toprovide for adequate inspection in theState's interest ofbuilding construction work inprogress, and toprovide for reasonably accurate projections of building program requirements, and estimates of the

-3356-Hon. Ben Barnes, Hon. GUS Mutscher, page 4 (M-695)

cost ofproposed projects prior to legislative appropriations or specific authorizations for the construction and equipping of such projects." Section 5of theAct states, inpart, as follows: "Section 5. (A)The state Building Commission ishereby designated as the administering agency and shall exercise the powers and duties conferred upon itby thisAct in addition toallpowers, duties and responsibilities previously conferred upon itbyActs of the 54th Legislature, Regular Session, 1955, Chapter 514, as amended (compiledas Article 670m, Vernon's Annotated Civil Statutes), and theprovisions of such Act, as amended, shall apply where pertinent to all construction under the provisions of thisAct. ...- Based on theprovisions of Section 5, supra, it is our opinion that Article 678f. Vernon's Civil Statutes, doesnot limit the authority of the State Building Commission to contract with any other State agency or department. In this regard, seeAttorney General's Opinion C-536 (19651,which held that an account payable to the State Building Commission incurred under a contract with the Texas Department of Mental Health and Mental Retardation pursuant to the authority ofArticle 678m andArticle 678f. Vernon's Civil Statutes, was an allowable claim against the Texas Department of Mental Health and Mental Retardation.
In addition to the authority of the State Building Commission to enter into contracts with other State agencies under theprovisions of Article 678m,Vernon's Civil Statutes, the Commission is authorized to enter into contracts with other State agencies under the provisions of Article 4413 (32).Vernon's Civil Statutes, known as "The Interagency Cooperation Act." Attorney General's Opinion C-78(1963). We quote from the provisions ofArticle 4413(32) as follows:

-3357-Hon. Ben Barnes, Hon. Gus Mutscher, page 5 (M-695)

II

. . . "Section 2. When used in thisAct theword 'agency' includes department, board, bureau, commission, court, office, authority, council, institution, university, college, and any service orpart of a State institution ofhigher education. "Section 3. Any state agency may enter into and perform 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... "Section 4. Before any services maybe rendered or received, awritten agreement or contract shall be entered into, specifying thekinds and amounts of services tobe rendered, thebases for calculating reimbursable costs, and themaximum account of the costs during the timeperiod covered by the agreement. t,

... "Section 6. Payments for such services by a receiving agency shall be made from the appropriation items or accounts of the receiving agency from which like expenditures would normally be made, based upon vouchers drawn for this purpose by the receiving agency payable to the furnishing agency. Payments received by the State agency performing the services shall be credited to that State agency's current appropriation items or accounts fromwhich the expenditures of that character were originally made.
. .'I The facts submitted in connection with Attorney General's Opinion C-78(1963) are outlined, inpart, as follows:

-3358-Hon. Ben Barnes, Hon. Gus Mutscher, page 6 (M-695)
"Recently the Department of PublicWelfare has purchased an IBMmachine which theydesire tohave installed in the newbuilding
. . .In order to install this equipment andhave it function properly, it isnecessary to augment the air conditioning within the designated room location and furnish an additional source of electrical power supply
. . .The Department of Public Welfare has stated that they have the appropriated funds to cover the installation in the amount stipulated. Sufficient contingency funds originally appropriated to the State Building Commission for the structure donot remain to cover the installation of this newly acquired and unforeseen IBMmachine requirement.
. ." Opinion C-78 (1963)cites Section 3and Section 6 of Article 4413(32), Vernon's Civil Statutes, andholds under the facts submitted that:

"It is the opinion of this office that the State Building Commission has the power and authority under Section 3ofArticle 4413(32) to enter into agreements or contracts with other State agencies whereby the Commission performs services for the other agency. The services rendered by the State Building Commission would be 'special' or 'technical services' within the meaning ofArticle 4413(32). II

. . .The contract would be subject to the limitations on interagency contracts and agreements contained inArticle 4413(32), andpayment would have tobemade inaccord with Section 6 ofArticle 4413(32) asquoted above." (Emphasis added.) Section 1,Article II of the Texas Constitution establishes the Legislature as a separate "department" of the State government. "TheLegislative power of this State shallbe vested in a Senate and House of Representatives, which together shall be styled 'TheLegislature of the State of Texas."' Section 1,Article III, Texas Constitution. Thus, there has been created "two separate

-3359-Hon. Ben Barnes, Hon. Gus Mutscher, page 7 (M-695)

and coordinate chambers acting independently of each other." See Interpretive Commentary under Article III, Section 1, Constitution of Texas, Vol. 1of Vernon's, page 550. Although theprincipal function of the Legislature is to enact laws, including the amendment, repeal and suspension of enforcement of existing laws,the Legislature also possesses powers of a nonlegislative character. 36Tex.Jur.2d 132, Legislature, 9 8. One of these non-legislative powers is thepower to contract. Conlev, et al v. Daughters of the Republic, 156S-W. 197, 106 Tex. 80 (1913reh, den. 157 S.W. 937); (Charles) Scribner's Sons v. Marrs, 262 S.W. 722, 114Tex. ll(1924); Dikes v. Miller, 25Tex. Supp. 281(1860). Throughout many years inTexas it has been the usage andpractice for each separate legislative body to contract for and expend its legislative appropriation. There being no constitutional prohibition, the extent of a legislative body's power is tobe determined aswell by usage as by specific grants. 49Am.Jur. 250, States, etc., Sec. 33.
Inview of the foregoing, it is our opinion that, as separate legislative bodies, the Senate andHouse of Representatives each jointly or severally, have thepower to contract to expend appropriations which the Legislature has made to each body separately. With reference to the Interagency Cooperation Act, it is our opinion that the Senate and House of Representatives have the legal capacity to contract with the State Building Commission under the authority ofArticle 4413(32), Section 2, and Article 678m, Vernon's Civil Statutes andAttorney General's Opinion No. WW~1120 (1961). Presently the Senate and House of Representatives have funds appropriated to each separate body which provide, inpart, for the "building repair" and "remodeling." It isour opinion that building repair and remodeling would be special or technical services within the meaning ofArticle 4413(32), Section 3,Vernon‘s Civil Statutes, and also within the scope of the authorized purposes specified inArticle 678m, Section 3,Vernon's Civil Statutes.
On the basis of thepreceding discussion, it is our opinion that the State Building Commission under the authority of the provisions of Section 51-b,Article III of theConstitution of Texas, Article 678m, Vernon's Civil Statutes, andArticle 4413(32),

-3360-Hon. Ben Barnes, Hon. Gus Mutscher, page 8 (M-695)

Vernon's Civil Statutes, may contract directly with the Senate and House of Representatives toprovide building repair and remodeling services. Moreover the Senate and House of Representatives is authorized topay the State Building Commission for these services under the authority ofAttorney General's Opinion C-78(1963) upon vouchers drawn for thispurpose by the Senate and House of Representatives payable to the State Building Commission.
SUMMARY

The State Building Commission under the authority of theprovisions ofArticle III, Section 51-b, Texas Constitution, Article 678m, Vernon's Civil Statutes, andArticle 4413(32), Vernon's Civil Statutes, may contract directly with either the Senate or House of Representatives, orboth of-such bodies toprovide "building repair" and "remodeling services." The Senate and House of Representatives are authorized topay the State Building Commission for these services under the authority ofAttorney General's Opinion C-78(1963) upon vouchers drawn for this purpose by the Senate and House of Representatives payable to the State Building Commission. truly yours,

Attorne&/General of Texas Prepared by Ivan R.Williams, Jr. Assistant Attorney General

-3361-Hon. Ben Barnes, Hon. Gus Mutscher, page5 (M-695)

APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Houghton Brownlee John Banks J. C. Davis S. J.Aronson
MEADE F.GRIFFIN Staff LegalAssistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

-3362-