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# The Attorney General of Texas January 14, 1980 MARK WHITE Attorney General

Honorable William P. Clements, Jr. Governor of the State ofTexas Capitol Building Austin, Texas Opinion No. Hw-128 Re: Construction of a building by the Department of Human Resources. Dear Governor Clementm You have requested our opinion onanumber ofquestions regarding the construction of a building by the Texas Department of Human Resources [hereinafter DHR]. InAttorney General Opinion MW-51(1979),weheld that you were without authority to veto the following provision of the General Appropriations Act [hereinafter referred to asrider 471:

(47)The Texas Department of Human Resources is hereby authorized and directed to construct a state office building, in cooperation with the State Board of Control, consisting of NTE 530,000 gross square feet (400,000 net square feet). NoGeneral Revenue, Children’s Assistance, or Medical Assistance funds may beused for this purpose. It is the intent of the Legislature that the building house the central administrative offices of both the Texas Department ofHuman Resources and the Texas Youth Council. Further, it is the intent of the Legislature that the building be constructed on State land currently owned by the Texas Department of Mental Health and Mental Retardation. The Board of Mental Health and Mental Retardation is hereby authorized and directed to transfer to the State Board of Control record title to a certain triangulalshaped tract of land 29 acres, more or less, in the north part of the City ofAustin, bounded onthe west by West Guadalupe Street and North Lamar Boulevard, onthe north by Slst Street, onthe east by Guadalupe Street and having the southern tip of the tract at the intersection of Guadalupe and West Guadalupe Streets, together with all records held by it concerning this tract.

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Honorable William P.Clements, Jr. - Page Two (MW-128)

In reaching our conclusion, we said that rider 47 does not itself set aside or dedicate funds, but merely directs and qualifies the useoffunds appropriated elsewhere. Wenoted that rider 6 to the DHR appropriation, which rider appropriates earned federal funds, constitutes one source offunds available for the construction ofthe building contemplated by rider 47. After the funds.have been earned by the state they are freed from federal control. Rider 6provides:

(6)The appropriations herein made maybeused to match federal funds granted to the state for the payment of personal services, travel and other necessary expenses in connection with the administration and operation of a state program of public welfare services. The Texas Department of Human Resources is hereby authorized to receive and disburse in accordance with plans acceptable to the responsible federal agency, all federal moneys that are made available (including grants, earnings, allotments, refunds, and reimbursements) to the state for suchpurposes and all fees authorized by federal law, and to receive, administer, and disburse federal funds for federal programs in accordance with plans agreed upon by the Department of Human Resources and the responsible federal agency, and such other activities ascome under the authority of the Department of Human Resources, and such moneys are appropriated to the specific purpose or purposes for which they are granted orotherwise made available. Rider 6authorizes DHRto receive and disburse three categories of funds: (1)those made available “for such purposes,” i.e., payment of personal services, travel and other necessary expenses inconnection with the administration and operation ofastate program of public welfare services; and (2) those made available “for federal programs ... and (3)such other activities as come under the authority of the Department of Human Resources.” The rider appropriates the funds “to the specific purpose or purposes for which they are granted or otherwise made available.” Expenditure ofthe third category offunds:willnot require federal approval. Wehave been advised that DHRanticipates the availability ofearned federal funds in an amount exceeding $178 million for the present biennium. Of this amount, only $60,650,000 has been specifically earmarked by the legislature for financing line items. As a result, earned federal funds of approximately $117million should be available to finance the construction of the building described in rider 47. It is anticipated that the building will cost approximately $40 million. Since the Board of Human Resources is

“responsible for the adoption ofpolicies and rules for the government ofthe department,” the board is authorized to determine the purpose or purposes for which non-earmarked funds are to be expended, and the amount tobedesignated for each such purpose. Human Resources Code, section 21.003. Wewillnowaddress your particular questions. 1. Whichparticular funds appropriated byrider 6may beused to finance the construction of the building for the Department ofHuman Resources?

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Honorable William P.Clements, Jr. - Page Three (Mw-129)

Funds available for construction of the DHRbuilding are those included within the third category described above.

2. What is the monetary limit on such funds that may be expended for the construction ofthis building? The entire amount of earned federal funds under category three, less the $60,650,000 specifically earmarked by the legislature, may be expended for the construction of the DHR building. Under present estimates, approximately $117million should thus be available. 3. If $100million or $200million isavailable from the particular

fund or funds that may be used to finance the building, may any orall ofthat amount beexpended? As we have said previously, the entire amount, less that specifically earmarked, may be expended. Of course, it is anticipated that the building will cost substantially less than that amount.

4. Is the construction of a building ‘apurpose for which federal moneys are made available within the meaning ofrider 6’? Yes, since earned federal funds are tobeused, and they are available for any purpose.

5. Isthe construction ofabuilding a federal program within the meaning ofrider 6,and, ifso, must the Department ofHuman Resources and the responsible federal agency agree upon plans for the construction ofthis building? Since the second category of funds isnot relevant to this expenditure, it isnot necessary that weanswer this question.

6. Isthe construction of abuilding an activity that comes under the authority of the Department ofHuman Resources, and, if the Department of Human Resources has such authority, where isthat authority found inthe statutes? Yes. DHRisgranted broad authority “to accept, expend, and transfer funds” and to“enter into agreements” with other state agencies to accomplish the purpose of assisting needy families and individuals. Human Resources Code 522.002(e). We cannot say that construction of a building will not assist in accomplishing this purpose. Furthermore, sections 5.01, 5.04, 5.16and 5.17of the new State Purchasing and General Services Act, article 601b,V.T.C.S., specify the procedure for cooperation between DHRand the State Purchasing and General Services Commission [formerly the Board of Control] in constructing a building. We believe that these provisions furnish statutory authority sufficient to sustain the validity of rider 47 which, as we have noted merely directs or qualifies the use of funds appropriated elsewhere. See Jessen Associates, Inc. v. Bullock, 531S.W.2d593(Tex. 1975). -

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7. Have moneys been granted or otherwise made available for the s ecific purpose of constructing a building within the -FLT. meamng o ruder6? Although DHR is not granted specific statutory authority to construct the building at issue, we believe that the statutes described in our answer to question 6 furnish ample statutory authority to sustain the validity of riders 6 and 47, which do make funds available for the specific purpose ofconstructing abuilding.

8. Are the fun& appcpriated for the construction of abuilding restricted to those appropriated inrider 6? No, fun& are also available under article 5, section 19ofthe General Appropriations Act, but webelieve that such funds are essentially the same asthose described inrider 6.

9. Can any of the funds appropriated in Section 19of Article V of H.B. 558 be utilized for the purpose of constructing a building for the Department ofHuman Resources? Yes, but as wehave noted such fun& are essentially the same asthose described inrider 6. 10. Who has the responsibility for determining the purposes for

which funds appropriated by rider 6can be utilized, and has this been accomplished7 Aswe have previously indicated the Board ofHuman Resources hasthe responsibility for determining the purposes for which rider 6 funds may be utilized, and it is our understandng that the Board has done so.

1L Who has the responsibility for determining the amount of funds that can beutilized for aspecific purpose under rider 6, and has this been accomplished? Again, the Board of Human Resources has this responsibility, and we have been advised that it has done so.

12. What are the purposes for which the funds appropriated in rider 6 can be utilized and what is the amount appropriated for each purpose? Rider 6funds may be expended under the three categories described above. The amount appropriated under each category depends upon the amount made available to DHRunder various agreements with the federal government. We have previously indicated the approximate amount available.

13. Are the funds appropriated in rider 6 ‘to the specific purpose or purposes for which they are granted or otherwise made available’?

p. 408Honorable William P.Clements, Jr. - Page Five (MW-1281

Yes, according to the language ofrider 6. 14. Who has the responsibility for determining the ‘specific purpose or purposes’ for which these funds are granted or otherwise made available, and has this been accomplished in rider 6? The answer to this question isthe same asour answer toquestion number 10.

15. Who has the responsibility for determining the amount of funds that are to beused for the ‘specific purpose orpurposes’ for which these fun& are granted or otherwise made available, and has this been accomplished under rider 6? The answer to this question is the same asour answer toquestion number 1L

16. Are the funds appropriated by rider 6 restricted to ‘plans agreed upon by the Department of Human Resources and the responsible federal agency and such other activities ascome under the authority ofthe Department ofHuman Resources’? The three categories offun& described inrider 6have been discussed above.

17. Can the Department ofHuman Resources expend any federal funds received without having approval of the responsible federal agency ? Yes, expendture of the third category of funcb described in rider 6 doea not require federal approval.

18. Inrelation to Article V,Section 19of H.B. 558, are the funds appropriated bythis section ‘tosuch agencies for the purposes for which the federal grant, allocation, aid, payment or reimbursement was made’ subject to the legislative mandates contained insaid article and section? Yes. 19. Is this the contrdling and most specific appropriation

authority and expression of legislative intent in relation to the funds appropriated bysaid rider? If it isnot, what is? Aswehave noted these funds are essentially the same asthose described inrider 6,which isthe more specific appropriation.

20. Who has the responsibility for determining the purposes for which funds appropriated by Article V, Section 19 can be utilized, and has this been accomplished?

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Aswith rider 6funds, the Board ofHuman Resources has such responsibility, andit isour under&an&g that this hasbeen accomplished

2L Who has the responsibility for determining the amount of funds appropriated by Article V, Section 19 that can be utilized for a specific purpose, and has this been accomplished7 Again, the Board of Human Resources has this responsibility, and we are advised that it hasbeen accomplished

22. What are the purposes for which the funds appropriated in Article V,Section 19can be utilized and what is the amount appropriated for each purpose? Article V,section 19funds, being essentially the same as those described in rider 6, may be expended for the same purposes and inthe same amounts asrider 6funds. our answer toquestion number 12iscontrdling here. Therefore,

23. Is rider 47 unconstitutional in that it attempts to amend general law by designating a particular site for the location of the Department of Human Resources in violation of Article 695(c), V.A.C.S.? No, becaize as we said in our answer to question number 6, general law is sufficient to support an appropriation such asrider 47.

24. Must the construction of the Department of Human Resources building comply with H.B. 1673, effective September 1,1979? Yes. 25. If so, since federal fun& are being used to construct this

building is it arequirement that there be an enabling federal statute in accordance with H.B. 1673, Section 5.15(h), and if there must, what enabling statute authorizes the construction of this building? Section 5.15(h)provides:

(h)The commission may waive, suspend, or modify any provision of this article which shall be inconflict with any federal statute or any rule, regulation, or administrative procedure of any federel agency where such waiver, suspension, or modification shall be essential to the receipt of federal funds for any project. In the case of any project wholly financed from federal fun&, any

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standards required by the enabling federal statute or required by the rules andregulations of the administering federal agency shall be-controlling. Section 5.15(h) does not require a federal statute. It provides only that any standa& required by federal statute orregulation shall control over conflicting provisions ofarticle 601b. 26. Must the construction of the Department of Human

Resources building comply with H.B. 1673? Yes.This question is aduplicate ofquestion number 24.

27. a) If not, under what constitutional or statutory authority is the Department ofHuman Resources project exempt? Inlight ofour answer toquestion 26,noanswer isrequired

b)If it must, where in H.B. 558 is there an appropriation to the State Purchasing and General Services Commission for the construction ofthis building? The appropriation is to the Department of Human Resources rather than to the Commission28. Bynot making an appropriation to the Commission, does rider

6, Article V, Section 19, and rider 47 of H.B. 558 violate Article 3, Section 35 of the Texas Constitution by amending and modifying general law contained in H.B. 1673? No. See answers toquestion numbers 6and 23.

29. Before the appcpriation ofmoney for the construction ofthe Department of Human Resources building, was it necessary for aproject analysis to be submitted to the budget agencies ofthis Statein accordance with Article 678f, V.T.C.S.? Article 678f, the predecessor statute ofarticle 601b,wasineffect at the time fun& were appropriated for the project at issue here Section 6(E)ofthat statute required the State Building Commission to submit to the budget agencies of the state a report listing all projects for which a project analysis was required Nothing in article 678f, however, protibited the legislature from appropriating funds for a project not included within the Commission’s report.

30. If not, what constitutional or statutory authority is this project exempt from the provisions ofArticle 678f? [sic]

p. 411Honorable William P.Clements, Jr. - Page Eight (NW-1281

As we noted in our answer to question number 29, article 678f imposed certain duties on the State Building Commission, but placed norestrictions on the legislature with regard to the apprcpriation offunds.

31. By its failure to require a project analysis for the construction of this building before making an appropriation authorizing such construction, did the legislature attempt to modify and amend general law in violation of Article 3, Section 35ofthe Texas Constitution? No. Aswehave said, the statutory requirement that aproject analysis be submitted spoke only to the duty of the Building Commission. Since nostatute required the legislature to have seen a project analysis before making an appcqriation, the legislature did not attempt to amend general law by appropriating these funds in the absence of a project analysis. SUMMARY

Rider 47to the Department ofHuman Resources appopriation for the 1979-81biennium is not unconstitutional. The Board ofHuman Resources may authorize the expenditure of all non-earmarked earned federal funds in accordance with the provisions of that rider.

MARK WHITE Attorney General ofTexas JOHNW.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINIONCOMMITTEE C.Robert Heath, Chairman David B.Brooks BobGammage Susan Garrison Rick Gilpin Bruce Youngblood

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