-_ ’ 

The Attorney General of Texas 

January 14, 1980 

MARK WHITE 

Attorney General 

Honorable William P. Clements, Jr. 

Governor of the State of Texas 

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 on a number of questions regarding the 

construction of a building by the Texas Department of Human Resources 

[hereinafter DHR]. In Attorney General Opinion MW-51 (1979), we held that 

you were without authority to veto the following provision of the General 

Appropriations Act [hereinafter referred to as rider 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). No General Revenue, 

Children’s Assistance, or Medical Assistance funds 

may be used for this purpose. 

It is the intent of the Legislature that the building 

house the central administrative offices of both the 

Texas Department of Human 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 of Austin, bounded on the west 

by West Guadalupe Street and North Lamar 

Boulevard, on the north by Slst Street, on the 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. 

P. 405 
. . 

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 use of funds appropriated elsewhere. We noted 

that rider 6 to the DHR appropriation, which rider appropriates earned federal funds, 

constitutes one source of funds available for the construction of the building contemplated 

by rider 47. After the funds. have been earned by the state they are freed from federal 

control. Rider 6 provides: 

(6) The appropriations herein made may be used 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 such purposes 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 as come 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 or otherwise made available. 

Rider 6 authorizes DHR to 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 in connection with the administration and operation of a state 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 of the third category 

of funds: will not require federal approval. 

We have been advised that DHR anticipates the availability of earned 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 $117 million 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 of policies and rules for the government of the department,” 

the board is authorized to determine the purpose or purposes for which non-earmarked 

funds are to be expended, and the amount to be designated for each such purpose. Human 

Resources Code, section 21.003. 

We will now address your particular questions. 

1. Which particular funds appropriated by rider 6 may be used to 

finance the construction of the building for the Department 

of Human Resources? 

P- 406 
. . 

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

Funds available for construction of the DHR building 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 of this 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 $117 million should thus be 

available. 

3. If $100 million or $200 million is available from the particular 

fund or funds that may be used to finance the building, may 

any or all of that amount be expended? 

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 ‘a purpose for which federal 

moneys are made available within the meaning of rider 6’? 

Yes, since earned federal funds are to be used, and they are available for any purpose. 

5. Is the construction of a building a federal program within the 

meaning of rider 6, and, if so, must the Department of Human 

Resources and the responsible federal agency agree upon 

plans for the construction of this building? 

Since the second category of funds is not relevant to this expenditure, it is not necessary 

that we answer this question. 

6. Is the construction of a building an activity that comes under 

the authority of the Department of Human Resources, and, if 

the Department of Human Resources has such authority, 

where is that authority found in the statutes? 

Yes. DHR is granted 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 5 22.002(e). We cannot say that 

construction of a building will not assist in accomplishing this purpose. Furthermore, 

sections 5.01, 5.04, 5.16 and 5.17 of the new State Purchasing and General Services Act, 

article 601b, V.T.C.S., specify the procedure for cooperation between DHR and 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, 

531 S.W.2d 593 (Tex. 1975). 

- 

p. 407 
Honorable William P. Clements, Jr. - Page Four (MW-128) 

7. Have moneys been granted or otherwise made available for 

the s ecific purpose of constructing a building within the 

meamng -FLT. oruder 6? 

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 of constructing a building. 

8. Are the fun& appcpriated for the construction of a building 

restricted to those appropriated in rider 6? 

No, fun& are also available under article 5, section 19 of the General Appropriations Act, 

but we believe that such funds are essentially the same as those described in rider 6. 

9. Can any of the funds appropriated in Section 19 of Article V 

of H.B. 558 be utilized for the purpose of constructing a 

building for the Department of Human Resources? 

Yes, but as we have noted such fun& are essentially the same as those described in rider 

6. 

10. Who has the responsibility for determining the purposes for 

which funds appropriated by rider 6 can be utilized, and has 

this been accomplished7 

As we have previously indicated the Board of Human Resources has the 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 be utilized for a specific 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 6 funds may be expended under the three categories described above. The amount 

appropriated under each category depends upon the amount made available to DHR under 

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

Yes, according to the language of rider 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 is the same as our answer toquestion number 10. 

15. Who has the responsibility for determining the amount of 

funds that are to be used for the ‘specific purpose or purposes’ 

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 as our 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 as come 

under the authority of the Department of Human Resources’? 

The three categories of fun& described in rider 6 have been discussed above. 

17. Can the Department of Human 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. In relation to Article V, Section 19 of H.B. 558, are the funds 

appropriated by this section ‘to such agencies for the purposes 

for which the federal grant, allocation, aid, payment or 

reimbursement was made’ subject to the legislative mandates 

contained in said 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 by said rider? If it is not, what is? 

As we have noted these funds are essentially the same as those described in rider 6, which 

is the 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? 

P. 409 
Honorable William P. Clements, Jr. - Page Six (NW-128) 

As with rider 6 funds, the Board of Human Resources has such responsibility, and it is our 

under&an&g that this has been 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 

has been accomplished 

22. What are the purposes for which the funds appropriated in 

Article V, Section 19 can be utilized and what is the amount 

appropriated for each purpose? 

Article V, section 19 funds, being essentially the same as those described in rider 6, may 

be expended for the same purposes and in the same amounts as rider 6 funds. 

our answer toquestion number 12 is contrdling 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 as rider 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 a requirement 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 in conflict 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 

P. 410 
Honorable William P. Clements, Jr. - Page Seven (Hw-128) 

standards required by the enabling federal statute or required by 

the rules and regulations 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 or regulation shall control over conflicting provisions of article 

601b. 

26. Must the construction of the Department of Human 

Resources building comply with H.B. 1673? 

Yes. This question is a duplicate of question number 24. 

27. a) If not, under what constitutional or statutory authority is 

the Department of Human Resources project exempt? 

In light of our answer toquestion 26, no answer is required 

b) If it must, where in H.B. 558 is there an appropriation to 

the State Purchasing and General Services Commission for 

the construction of this building? 

The appropriation is to the Department of Human Resources rather than to the 

Commission 

28. By not 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 6 and 23. 

29. Before the appcpriation of money for the construction of the 

Department of Human Resources building, was it necessary 

for a project analysis to be submitted to the budget agencies 

of this Statein accordance with Article 678f, V.T.C.S.? 

Article 678f, the predecessor statute of article 601b, was in effect at the time fun& were 

appropriated for the project at issue here Section 6(E) of that 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 of Article 678f? [sic] 

p. 411 
Honorable 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 no restrictions on the legislature with regard to 

the apprcpriation of funds. 

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 35 of the Texas Constitution? 

No. As we have said, the statutory requirement that a project analysis be submitted spoke 

only to the duty of the Building Commission. Since no statute 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 47 to the Department of Human Resources appopriation for 

the 1979-81 biennium is not unconstitutional. The Board of Human 

Resources may authorize the expenditure of all non-earmarked 

earned federal funds in accordance with the provisions of that 

rider. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Bob Gammage 

Susan Garrison 

Rick Gilpin 

Bruce Youngblood 

P. 412