### TEE 

## ATIWRNEY GENERAL OF TEXAS

**Auwrl~. -rExAn**  **78711**
September28,1972

Hon. J. C. Dingwall State Highway Engineer Texas Highway Department Austin, Texas 78701

Dear Mr. Dingwall: OpinionNo. M-1228
Re: Authority of the State Bighway~

Commission to proceedwith their building project for the construction of a new State,Beadquarters Building.
Your request for an opinion asks the followingquestion:
"It is requested that your office review the course of events pertaining to this proposed project as outlined herein and advise if this Department is legally in a position to proceed with the construction as proposed on Block 124 in the,City of Austin." The sequenceof events which has transpired is summarized in your request as follows:

"1. State Highway Conmission Minute Order No. 62807dated October 1, 1969, authorized and directed the State Highway Engineer to proceed with then

plans for the construction qf 'anew building on the site bounded by lOth and 11th Streets, CongressAvenue, and Colorado Streets, which is Block 124 in the City of Austin. ,(See Exhibit "A") "2. Highway Coxnzaission Munite Order Nos. 62805 and 62806 of October 1, 1969, authorized the purchase oft the southhalf of Block 124 bounded by 10th and 11th Streets and Congress Avenue and Colorado Street in the City of Austin. (SeeExhibit "B")
"Innegotiating for the acquisition authorizedby Coamieeion-Minute,OrderNo. 6~2806, -6015-Hon. J. C. Dingwall,page 2 (M-1226)

an impassewas reachedwith the owners of certain parcels of land as to the fair cash market value thereof and damages, if any. Eminent domain proceedingswere then authorized and directedby CommissionMinute Order No. 63555 dated May.7, 1970. (SeeExhibit "C")
"An equitable settlementhas subsequently been reachedwith the owner of Parcel 2 shown in Exhibit "C"and a deed record in the name of the State is now on file. “3. By letter of October 20, 1969, approval was granted by Governor Smith for the Highway Department to construct a State Highway Department Headquarters Building in excess of 10,000 square feet of floor space in accordancewith requirementsof the appropriationbill. (See Exhibit "D") “4. The preliminaryplans of the proposed buildingwere reviewed and approvedby the Building Commission on December 3, 1969. Approval of the transfer of the north half of Block 124 from the Building Commission to the Highway Department in exchange for the northeast onequarter of Block 123 (presentlocation) including building and improvements thereon was also confirmed at thismeeting. (SeeExhibit "E")
"5. The final design of the new building was approved and acceptedby the Building Commission on December 3, 1970. (SeeExhibit "F") “6. H.C.R. 180 of the 62nd Legislature directed the State Highway Department to reevaluate its plans to build on this site. During this reevaluation the Departmentwas advised by theAntiquities Committee that it would be necessary to perform an archeological investigation. On November 17, 1971, a public hearing was held as provided by law by the Antiquities Committee for issuance of permit for archeological investigation. Therewas no opposition and on November 23, 1971, the permit was granted. Except for the final reportwhich is presently

-6016-Hon. J. C. Dingwall,page 3 (M-1228) : ,'

in progress, the investig.ation has been satisfactorily.

completed.
"7. On January-,1,3r .~1972,.,in

accordance with the.provisions.ofArtr .5421q,V.C.S., in-' eluding ProperNotice andAdvertising, a public hearingwas held by:this Department to receive the views and comments of all interested agencies, groups, or individualsregarding the use of this land. Several people appeared and spoke 'for.the proposed project. No.one appeared in opposition. "Basedon the findings.of the reevaluation and restudy,,,the

decision of.the HighwayCorn-- :~::.' mission was to proceed according to plan. During~'~'~ the 3rd Called Session .of, the 62nd Legislature,.: " .coaaaents

on the floorwere made which sight shave .~~ .~ hen interpreted as questioning ,theright ,of:-

.:- : '. the~Departmentto construct a Headquarters Building.
~"SenateBill~l of.the,.3rd Called Session '.. of the,62nd Legislature appxopriated $1.5 mill~ian~~ :~ for the Parks-

and Wildlife Department to -purchase.,., this property:for a,park. This item"wasvetoed,:": by the Governor.. "Collateralinformation also included herein, for ~youruse and~readyreference in this.matter.,e is an extract of,the Minutes of December 16,and 17, 1970, of the Speakers Special Committee on .~.Historical.

Preservation. :lSeeMibit."G"f"i,-

,,, -' ~~'- .;

_ TIC_ : We must first determine~the'.legaleffectof 'the'~

_&'. 1 Governor'sveto on the item of appropriation referred to in your request.

Senate Bill l,.Acts of the'62nd~Legislature,, 3rd Called Session, 1972, by general appropriation act for.the fiseal~year beginning September 1, 1972, has made certain appropriationsto ~theParksand Wildlife Department in item.21 of the.appropriation to that department. (p., 111-108, 111). The veto message of the Governor vetoed:

-6017-Hon. J. C. Dingwall,page 4 (M-1228)

"Item 21-- That portion of **Item** 21 reading:

t

. . .NTE $1,500,000 for acquisition from the Highway Department of land bounded by.CongressAvenue, Colorado Street, 10th Street and 11th Street in the City of Austin, Texas, for development of said land as a State garden park.

. .' $1,500,000" The authority of the Governor~to veto items of appropriation is set out in Article IV, Section 14 of the Constitution of Texas. In exercising that veto power, the Governor is exercising a legislative and not an executive or judicial function. He cannot disapprove of certain portions of a bill which are not items of appropriation and approve the remainder. Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911);Attorney General's OpinionV-1196 (1951). Therefore if the vetoed languagequoted above constitutesan~item of appropriation, the Governor actedwithin his constitutionalveto power granted in Article IG, Section 14, Texas Constitution.

It is our opinion that the languagevetoed is an item of appropriation subject to the Governor's veto for the reason that it appropriates in and of itself $1,500,000 to the Parks and Wildlife Department for the acquisition of certain property for the development of said land as a "stategardenpark." While this language is containedwith other language in Item 21 of the appropriation to the Parks and Wildlife Department, it is our opinion that such language in and of itself constitutesan item of appropriation and therefore the veto of such item does not affect the remainder of the appropriation contained in Item 21.

Having concluded that the above quoted itemhas been constitutionallyvetoed by the Governor,we will now turn to the question of the authority of the State Highway Commission to proceed with their building project.

Constructionprojects for the State are controlledby the provisions of **Article** 678f,Vernon's Civil Statutes, the State Building ConstructionAdministrationAct.

The file attachedwith your request reveals that the provisions of Article 678f are being compliedwith in connectionwith the project under consideration.

-6018-Hon. J. C. Dingwall,page 5 (M-1228)

Prior to the creation of the Board of Control, a portion of the land in questionwas in the custody of the Superintendent of Public Buildings and Grounds. As his successor in office the custody of the land has been in the Board of Control until the adoptionof **Section** 51b of Article III, Texas Constitution,creating the State BuildingCommission. Section 7 of Article 678m,Vernon's Civil Statutes, the enabling act for the provisions of Article III, Section Sib,places control of real property for building sites in the State BuildingCommission until final construction is completed and the buildings are occupied by the State agencies to be housed therein. Therefore the custody and control of the property in question has been in the State Building Commission since 1955 (withthe exception of landpurchasedby the State Highway Commission--which land is in custody of the State Highway Commission).

Under the provisions of Article 678f, the orderlyplanning of buildings constructedby the State is placed in the State Building Commission and the State Building Commission is the agency of the State chargedwith the duty of carrying out Statebuilding constructionwith certain exceptionsprovided in Section 3. Section 3, subdivision (A)specificallyexcepts "All projects constructed by and for the Texas Highway Commission."

It is our opinion that it is not the duty of the Building Commission to construct the building in view of the.exceptioncontained in Section 3 of Article 678f,Vernon's Civil Statutes. This duty rests with the State Highway Commission.

InAttorney General's Opinion S-105 (1953),itwas held: "Since the time the Highway Departmentwas created, the Commissionhas interpreted the above legislativeacts as giving it the authority to expendmillions of dollars in the construction of many buildings throughout the State,to office its personnel and to provide storage for its equipment for the furtheranceof public road construction and the establishment of a **system** of State Highways. It was strengthened in such interpretationby an opinion of this office dated August 22, 1928 from H. Grady Chandler,AssistantAttorney General, to Hon. Gibb Gilchrist, State Highway Engineer, where, in response to an opinion request as to whether the, State Highway Department could legally expend.money

-6019-Hon. J. C. Dingwall,page 6 (M-1228)

from the Highway Fund for purchase of land for building sites and storage yards for materials and equipment to be used in connectionwith construction andmaintenance of highways, this office advised thatwhile the Highway Commission was only given authority to construct and maintain highways,yet, we were of the opinion that the Commissionwas not restricted to the exercise **of** the powers expressly conferred upon it, but it could exercise such impliedpowers as are necessary to carry out thepowers expressly granted or such as are required to accomplish the purposes for which they were created. "And the **Commission** was further sustained in its interpretationby the fact that the Legislature could not help but be aware of the huge sums of money which have been expended for the construction of buildings in the past and therefore could not help but be aware of the interpretationplaced on the legislativeappropriationsmade frombiennium to biennium to the State Highway Department Fund, and yet at each biennium an appropriationwas made by the Legislature in which they continued to use substantially the same wording." This holding **was** reiterated inAttorney General's Opinions WW-237 (1957)and WW-250 (1957).

The Legislaturehas not changed this interpretation. On the contrary it recognizes this interpretationby the exception contained in Section 3 of Article 678f. It also recognized the interpretationby the appropriation language contained in the item of appropriation involvedhere which was vetoed by the Governor for the reason **that** it used the phrase "for acquisition from the Highway Department of land bounded by CongressAvenue.
. . ."

Since the term nproject" includes constructionof any building,Article 678f recognizes the authority for the Texas Highway Commission to construct buildings necessary in the carrying out of State Highway Commission's duty to maintain a system of State highways,which,of course includesnecessary office buildings. **Normally,** office buildings are constructedby the State Buidling Commission under the pre-existing laws of Article 678m andArticle 678f. In the instant **case, as**  above noted, construction of office buildings for the State Highway Commission are to be built by the

-6020-Hon. J. C. Dingwall,page 7 (M-1228)

State Highway Commission rather than the State Building Commission. See Attorney General's Opinion M-721 (1970).

You are advised that upon fulfillmentof the terms of a permit issuedby the Texas Antiquities Committee as provided in Article 6145-9, Section 6,Vernon's Civil Statutes, the Highway Coannission

may proceedwith construction of its building project for the construdtionof a new State Headquarters. Building.
SUMMARY The State Highway Commission hasthe legal authority to proceedwith its building project for the construction of a new State Headquarters Building on the sitebounded by lOthand 11th Streets, Congress Avenue, and Colorado Street,.which is Block 124 in the City of Austin subject to the fulfillment **of** the terms of a permit issued by the Texas Antiquities Coamutteepursuant to Articles6145-9, Section 6, Vernon's Civil Statutes.

Preparedby John Reeves AssistantAttOMey General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Jack Goodman John Banks Malcolm Quick Harold Kennedy
SAMUEL D. MCDANIEL Staff Legal Assistant
ALFRED WALKER ExecutiveAssistant
NOLA WHITE FirstAssistant -6021-