September 14, 1970 

Honorable Ben Barnes 

Lieutenant Governor of Texas 

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 to pay 

certain funds for such services. 

In your letter requesting an opinion from this office, you 

submit the following fact: 

"In House Bill No. 2, Pets of the 61st Legislature, Second Called Session,*the Senate and House 

of Representatives have appropriations provided to 

them which in part permit 'building repair and remodeling and other expenses' of the Senate and House 

of Representatives,“ 

With regard to this fact you ask the following question: 

"Do the 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 the Building 

Commission such portion of said appropriated funds 

as are necessary to pay for such building 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, in part, 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 the Legislature for 

the uses and purposes set forth in subdivision (c) 

hereof." 

Paragraph (c) of Section 51-b of Article III of the Texas Constitution provides as follows: 

"(c) Under such terms and conditions as 

are now or may be hereafter provided by law, the 

Commission may acquire necessary real and personal 

property. salvage and dispose of property unsuitable 

for State purposes, modernize, remodel, build and 

equip buildings for State purposes, and negotiate and 

make contracts necessary to carry out and effectuate 

the purposes herein mentioned." 

Article 678m, Vernon's Civil Statutes, was enacted pursuant to 

Section 51-b, Article III, Texas Constitution. The provisions of 

Article 618m most pertinent to our discussion are quoted as follows: 

"Section 1. The State Building Commission 

. . . is hereby declared to be a State agency for 

performing the governmental functions outlined in 

Section 51-b of Article III of the Constitution of 

the State, . . . 

"Section 3. . . . Under such terms and conditions as may 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, and make contracts necessary to 

carry out and effectuate the purposes herein 

mentioned in keeping with appropriations authorized 

by the Legislature . .." 

#I . . . 

"Section 5. The Commission is authorized 

to take any action and enter into any contracts 

necessary to provide for the obtaining of sites 

and the planning, designing and construction of 

the buildings and memorials provided for by 

Section 51-b, Article III of the Constitution, 

and the Commission is also authorized to take any 

action and enter into any contracts to obtain sites 

which it deems necessary in order to provide for 

the orderly future development of the State Building Program which is contemplated by this Act, 

insofar as appropriations permit. . ." 

Attorney General's Opinion WW-llZO(1961) held that the provisions of Section 5, supra, and Section 8 of Article 678m. 

Vernon's Civil Statutes, would constitute sufficient authority 

for the State Building Commission to obtain the services 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 of Article 678m do not 

require the approval of the Board of Control." 

Article 678f, Vernon's Civil Statutes, is known as the "State 

Building Construction Act." The purposes of the Act are stated 

in Section 1 as follows: 

"The purpose of this Act is to provide for the 

orderly planning of buildings constructed by the State, 

to provide for adequate inspection in the State's 

interest of building construction work in progress, 

and to provide for reasonably accurate projections of 

building program requirements, and estimates of the 

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

cost of proposed projects prior to legislative 

appropriations or specific authorizations for the 

construction and equipping of such projects." 

Section 5 of the Act states, in part, as follows: 

"Section 5. (A) The state Building Commission is hereby designated as the administering 

agency and shall exercise the powers and duties conferred upon it by this Act in addition to all powers, 

duties and responsibilities previously conferred 

upon it by Acts of the 54th Legislature, Regular 

Session, 1955, Chapter 514, as amended (compiled as 

Article 670m, Vernon's Annotated Civil Statutes), 

and the provisions of such Act, as amended, shall 

apply where pertinent to all construction under the 

provisions of this Act. . ..- 

Based on the provisions of Section 5, supra, it is our opinion 

that Article 678f. Vernon's Civil Statutes, does not limit the 

authority of the State Building Commission to contract with any 

other State agency or department. In this regard, see Attorney 

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 of Article 678m and Article 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 the provisions 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 of Article 

4413(32) as follows: 

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

II 

. . . 

"Section 2. When used in this Act the word 

'agency' includes department, board, bureau, commission, court, office, authority, council, institution, 

university, college, and any service or part of a State 

institution of higher education. 

"Section 3. Any state agency may enter into and 

perform a written 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 of materials, 

or the services of equipment... 

"Section 4. Before any services may be rendered 

or received, a written agreement or contract shall be entered into, specifying the kinds and amounts of services 

to be rendered, the bases for calculating reimbursable 

costs, and the maximum account of the costs during the 

time period 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 from which the expenditures 

of that character were originally made. . .'I 

The facts submitted in connection with Attorney General's 

Opinion C-78(1963) are outlined, in part, as follows: 

-3358- 
Hon. Ben Barnes, Hon. Gus Mutscher, page 6 (M-695) 

"Recently the Department of Public Welfare has 

purchased an IBM machine which they desire to have 

installed in the new building . . . In order to install this equipment and have it function properly, 

it is necessary 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 do not remain to cover 

the installation of this newly acquired and unforeseen 

IBM machine requirement. . ." 

Opinion C-78 (1963) cites Section 3 and Section 6 of Article 

4413(32), Vernon's Civil Statutes, and holds under the facts 

submitted that: 

"It is the opinion of this office that the State 

Building Commission has the power and authority under Section 3 of Article 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 of Article 4413(32). 

II . . . The contract would be subject to the 

limitations on interagency contracts and agreements 

contained in Article 4413(32), and payment would have 

to be made in accord with Section 6 of Article 

4413(32) as quoted above." (Emphasis added.) 

Section 1, Article II of the Texas Constitution establishes 

the Legislature as a separate "department" of the State government. 

"The Legislative power of this State shall be vested in a Senate 

and House of Representatives, which together shall be styled 

'The Legislature 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. 1 of Vernon's, page 550. Although 

the principal 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. 36 Tex.Jur.2d 132, Legislature, 9 8. 

One of these non-legislative powers is the power to contract. 

Conlev, et al v. Daughters of the Republic, 156 S-W. 197, 106 

Tex. 80 (1913 reh, den. 157 S.W. 937); (Charles) Scribner's 

Sons v. Marrs, 262 S.W. 722, 114 Tex. ll(1924); Dikes v. Miller, 

25 Tex. Supp. 281(1860). Throughout many years in Texas it 

has been the usage and practice 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 to be determined as well by usage as 

by specific grants. 49 Am.Jur. 250, States, etc., Sec. 33. 

In view of the foregoing, it is our opinion that, as separate 

legislative bodies, the Senate and House of Representatives each 

jointly or severally, have the power 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 of Article 4413(32), Section 2, and Article 

678m, Vernon's Civil Statutes and Attorney General's Opinion 

No. WW~1120 (1961). 

Presently the Senate and House of Representatives have funds 

appropriated to each separate body which provide, in part, for 

the "building repair" and "remodeling." It is our opinion that 

building repair and remodeling would be special or technical 

services within the meaning of Article 4413(32), Section 3, Vernon‘s 

Civil Statutes, and also within the scope of the authorized purposes specified in Article 678m, Section 3, Vernon's Civil Statutes. 

On the basis of the preceding discussion, it is our opinion 

that the State Building Commission under the authority of the 

provisions of Section 51-b, Article III of the Constitution of 

Texas, Article 678m, Vernon's Civil Statutes, and Article 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 to provide building repair and 

remodeling services. Moreover the Senate and House of Representatives is authorized to pay the State Building Commission for 

these services under the authority of Attorney 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. 

SUMMARY 

The State Building Commission under the 

authority of the provisions of Article III, 

Section 51-b, Texas Constitution, Article 678m, 

Vernon's Civil Statutes, and Article 4413(32), 

Vernon's Civil Statutes, may contract directly 

with either the Senate or House of Representatives, or both of-such bodies to provide 

"building repair" and "remodeling services." 

The Senate and House of Representatives 

are authorized to pay the State Building Commission for these services under the authority 

of Attorney 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, page 5 (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 Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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