AUSTlN 11. TExaS

January 18, 1962

Honorable Price Daniel Governor of Texas Capitol Station Austin, Texas Opinion No. 

### W-1244
Re: Authority of the Legislature to appropriate State Building Commission Funds to renovate, equip' and repair the exterior of the San Jacinto Memorial Tower and Museum Dear Governor Daniel: Building.

Your request for opinion on the above subjectmatter reads as follows:~

"Asyou know, the San Jacinto Memorial Tower and Museum Building is badly in need of constructionwork to protect the valuable records and exhibits housed in this building and to protect from injury those who work and visit in the building. A dangerous amount of flaking has been occurringbetween the joints of the masonrywork for severalyears, and so much additional damagewas caused by Hurricane Carla that the building is now leakingwater into the museum and record rooms. It has caused the museum to be closed to the public.
"Ihave recommended to the Legislaturean emergency appropriation of 

### $156,000from the State Building Commission Fund to renovate, equip and repair the exterior and interior of the building, and the Fund has this much unappropriatedmoney available. "The questionhas been raised as to whether this structure is a 'building'within the meaning of the Texas Constitution, Sec. 

### 51-b,Article 

### 3, which authorizes the use of the Fund to 'modernize, remodel, build and equip buildings for Statepurposes.' Of course, it is often referred to as a monument,but actually the San Jacinto Memorial Tower is a building in the opinion of this office,‘

_ ,

Honorable Price Daniel,page 2. 

### (ww-1244)

the State Board of Control and the staff of the State Pullding Commission. "Also,you will note that the original resolution of the Texas Legislature,dated April 

### 17, 1939,Chapter 

### 16,Acts of the 

### 46th. Legislature,Regular Session,makes reference to the 'SanJacinto Memorial Tower' as a 'building'seven times, and in subsequentresolutionsand contractsunder these resolutions, the structure is referred to as a 'building'at least 210 times. I attach a memorandum from the State Board of Control showing the actual usable floor spacewithin the building, fromwhich you will note that much of the interior of the shaft is used for housing, storage,etc. 'Since this matter is now pending in committeesof both Houses, I would appreciate your earliestpossible advice as to whether the San Jacinto Memorial Tower and Museum Building comeswithin the provisions of the Texas Constitution,for the purposes of State Building Commission funds being appropriated by the Legislature to do the necessary constructionwork above mentioned." According to the memorandumattached to your request the structure contains 34,205 square feet of floor space and is constructed In suchmanner as to contain a basement floor, entrance floor, second floor, third floor, fourth floor, souvenir floor, observation floor and elevator machine floor.

The pertinent provision of Section 51-b of Article III of the Constitutionof Texas reads as follows: The State Building Fund shall be expknded by the Commissionupon appropriation by the Legislature for the uses and purposes set forth in subdivision (c)hereof. "(c) Under such terms and conditions as are now or may be hereafterprovided by law, the Commissionmay acquire necessary real and personal property, salvageand dispose of property unsuitable for Statepurposes, and negotiate and make contractsHonorable Price,llaniel;,~page 3. (W-1244)

necessary to carry out and effectuate the purposes hereinmentioned." Section 3 ,ofArticle 678m,Vernon's Civil Statutes, provides:
"Sex

.3. The Commissiop~ shallhave the authority to promulgate such rules and regulations as it deems:proper for the effective administration of this Act. Under such terms and conditionsas may be provided by law, the Commissionmay acquire necessary real and personalproperty, modernize,remodel, build and equip buildings for Statepurposes, and make contractsnecessary to carry out and effectuate the purposes herein mentioned in keepingwith appropriationsauthorized by the Legislature. Provided,~however,that the Commission shall not sell,or dispose of any real property of the,~State;

except by specificauthority from, the Legislature." Section 24 of Article 678m,Vernon's Civil Statutes, provides:
"Sec. 24. The State E&llding, Commission may, in its discretion,provide for t!e storage and display of the archives of Texas.'
It is our opinion that the structure,~involved in your request constitutesa building for Statepurposes within the meaning of subdivision (c) of Section 51-b, Article III of the Constitutionof~Texz+s and Section 3 of Article 678m, for the reason that such structure is builtin a manner to house valuable records and exhibits constitutingarchives of Texas. The structure containsnumerous floors and approximately 34,000 square feet of floor space.

In view of the foregoingyou are advised that subdivision (c) of Section 51-b of Article III of the Constitution of Texas and Sections 3 and 24 of Article 678m,Vernon's Civil Statutes,above quoted, constitutespre-existing law for the appropriation outlined in your request.Honorable Price Daniel,page 4. 

### (~~-1244 )

SUMMARY

The Legislature is authorized to appropriate State Building Commission Funds to renovate, equip and repair the exterior and interior of the San Jacinto Memorial Tower and Museum Building.

Yours very truly,
WILL WILSON Attorney General of Texas

JR:lg:zt AssistantAttorney General

APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman Howard Mays Bob Eric Shannon Joseph Trimble

REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.