TEE ATIWRNEY GENERAL 

OF TEXAS 

Auwrl~. -rExAn 78711 

September 28, 1972 

Hon. J. C. Dingwall 

State Highway Engineer 

Texas Highway Department 

Austin, Texas 78701 

Dear Mr. Dingwall: 

Opinion No. M-1228 

Re: Authority of the State 

Bighway~ Commission to 

proceed with their 

building project for 

the construction of a 

new State,Beadquarters 

Building. 

Your request for an opinion asks the following question: 

"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 sequence of events which has transpired is summarized 

in your request as follows: 

"1. State Highway Conmission Minute Order 

No. 62807 dated October 1, 1969, authorized and 

directed the State Highway Engineer to proceed 

with then plans for the construction qf 'a new 

building on the site bounded by lOth and 11th 

Streets, Congress Avenue, 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 south half of Block 124 

bounded by 10th and 11th Streets and Congress 

Avenue and Colorado Street in the City of 

Austin. (See Exhibit "B") 

"In negotiating for the acquisition authorized by Coamiee ion-Minute,Order No. 6~2806, 

-6015- 
Hon. J. C. Dingwall, page 2 (M-1226) 

an impasse was reached with the owners of certain 

parcels of land as to the fair cash market value 

thereof and damages, if any. Eminent domain proceedings were then authorized and directed by 

Commission Minute Order No. 63555 dated May. 7, 

1970. (See Exhibit "C") 

"An equitable settlement has subsequently 

been reached with 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 accordance with 

requirements of the appropriation bill. (See 

Exhibit "D") 

“4. The preliminary plans of the proposed 

building were reviewed and approved by 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 (present location) including 

building and improvements thereon was also confirmed at this meeting. (See Exhibit "E") 

"5. The final design of the new building 

was approved and accepted by the Building Commission on December 3, 1970. (See Exhibit "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 Department was advised 

by the Antiquities 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. There was no opposition and on 

November 23, 1971, the permit was granted. Except for the final report which 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.of Artr .5421q, V.C.S., in-' 

eluding Proper Notice and Advertising, a public 

hearing was held by:this Department to receive 

the views and comments of all interested agencies, 

groups, or individuals regarding the use of this 

land. Several people appeared and spoke 'for .the 

proposed project. No.one appeared in opposition. 

"Based on the findings.of the reevaluation 

and restudy,,,the decision of. the Highway Corn-- :~ ::.' 

mission was to proceed according to plan. During~ '~ '~ 

the 3rd Called Session .of, the 62nd Legislature, .: " 

.coaaaents on the floor were made which sight shave .~~ .~ 

hen interpreted as questioning ,the right ,of:- . :- : '. 

the ~Department to construct a Headquarters 

Building. 

~"Senate Bill~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"was vetoed,:" : 

by the Governor.. 

"Collateral information also included herein, 

for ~your use and ~ready reference 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_ : 

_ &'. 1We must first determine~the'.legaleffectof 'the'~ 

Governor's veto 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 appropriations to 

~the Parksand 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.Congress Avenue, 

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 Opinion V-1196 (1951). 

Therefore if the vetoed language quoted above constitutes an ~item 

of appropriation, the Governor acted within his constitutional veto 

power granted in Article IG, Section 14, Texas Constitution. 

It is our opinion that the language vetoed 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 "state garden park." While this 

language is contained with 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 constitutes an 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 item has been 

constitutionally vetoed by the Governor , we will now turn to the 

question of the authority of the State Highway Commission to proceed with their building project. 

Construction projects for the State are controlled by 

the provisions of Article 678f, Vernon's Civil Statutes, the State 

Building Construction Administration Act. 

The file attached with your request reveals that the provisions of Article 678f are being complied with in connection with 

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 question was 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 

adoption of Section 51b of Article III, Texas Constitution, creating 

the State Building Commission. 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 Building Commission 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 (with the 

exception of land purchased by the State Highway Commission--which 

land is in custody of the State Highway Commission). 

Under the provisions of Article 678f, the orderly planning 

of buildings constructed by the State is placed in the State Building Commission and the State Building Commission is the agency of 

the State charged with the duty of carrying out State building 

construction with certain exceptions provided in Section 3. Section 

3, subdivision (A) specifically excepts "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.exception contained in Section 3 of Article 678f, Vernon's Civil Statutes. This 

duty rests with the State Highway Commission. 

In Attorney General's Opinion S-105 (1953), it was held: 

"Since the time the Highway Department was 

created, the Commission has interpreted the above 

legislative acts as giving it the authority to 

expend millions of dollars in the construction of 

many buildings throughout the State,to office its 

personnel and to provide storage for its equipment 

for the furtherance of public road construction and 

the establishment of a system of State Highways. 

It was strengthened in such interpretation by an 

opinion of this office dated August 22, 1928 from 

H. Grady Chandler, Assistant Attorney 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 connection with 

construction and maintenance of highways, this 

office advised that while the Highway Commission 

was only given authority to construct and maintain highways, yet, we were of the opinion that 

the Commission was not restricted to the exercise 

of the powers expressly conferred upon it, but it 

could exercise such implied powers as are necessary 

to carry out the powers expressly granted or such 

as are required to accomplish the purposes for 

which they were created. 

"And the Commission was further sustained in 

its interpretation by 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 interpretation placed on 

the legislative appropriations made from biennium 

to biennium to the State Highway Department Fund, 

and yet at each biennium an appropriation was made 

by the Legislature in which they continued to use 

substantially the same wording." 

This holding was reiterated in Attorney General's Opinions 

WW-237 (1957) and WW-250 (1957). 

The Legislature has not changed this interpretation. On 

the contrary it recognizes this interpretation by the exception 

contained in Section 3 of Article 678f. It also recognized the 

interpretation by the appropriation language contained in the item 

of appropriation involved here which was vetoed by the Governor 

for the reason that it used the phrase "for acquisition from the 

Highway Department of land bounded by Congress Avenue. . . ." 

Since the term nproject" includes construction of 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 includes necessary office buildings. 

Normally, office buildings are constructed by the State Buidling 

Commission under the pre-existing laws of Article 678m and Article 

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 fulfillment of the terms of a 

permit issued by the Texas Antiquities Committee as provided in 

Article 6145-9, Section 6, Vernon's Civil Statutes, the Highway 

Coannission may proceed with construction of its building project 

for the construdtion of a new State Headquarters. Building. 

SUMMARY 

The State Highway Commission has the legal authority to proceed with its building project for 

the construction of a new State Headquarters Building on the site bounded 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 Coamuttee pursuant to Articles 6145-9, 

Section 6, Vernon's Civil Statutes. 

Prepared by John Reeves 

Assistant AttOMey 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 

Executive Assistant 

NOLA WHITE 

First Assistant 

-6021-