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### THE ATTORNEY GENERAL **OF** 

### TEXAS

May 19, 1969

Honorable Harry B.Kelton, Director Opinion No. M-396 Texas National Guard Armory Board West Austin Station Austin, Texas 70703 Re: Whether the Texas National Guard Armory Board can act independently of the State Building Commission in the awarding of construction contracts on thebasis of open-market sealed bids for armory constrution and related Dear Mr. Kelton: questions.

Your request for an opinion asks the following questions:
"Inyour opinion, can theArmory Board act independently of the State Building Commission on the following functions?: "1. The development ofarmory construction and related projects.
"2. The selection ofaqualified registered architect orengineer and awarding **an** architectengineer contract fordesign and construction supervision of armory and related projects.
"3. The awarding of construction contracts on thebasis of open-market sealed bids for armory construction and related projects.

**- 1966**  **-**: ,

Honorable Harry B. Kelton, page 2 (M-396)

"In the event your opinion is affirmative on any of the above functions, can the State Comptroller legally draw warrants, payable from funds in the State Treasury, in payment of such services and/or contracts?" The powers of the State Building Commission, in regard to State building projects, are prescribed in Article 670f, Vernon's Civil Statutes, known as the State Building Construction Administration Act. The purpose of said act is set out in Section 1as follows:

"Thepurpose of thisAct is to provide for the orderly planning ofbuildings constructed by the State, to provide for adequate inspection in the State's interest ofbuilding construction work in progress, and to provide for reasonably accurate projections ofbuilding program requirements, and estimates of the cost of proposed projects prior to legislative appropriations or specific authorizations for the construction and equipping of such projects. "TheLegislature hereby declares that the policy of the State of Texas in regard to projects constructed under the provisions of this Act shall be to provide requisite physical facilities for the operation of State government in an architectural formwhich will represent the dignity of the State of Texas andwhich shall be aesthetically pleasing. Designs shall adhere to established construction practices and utilize materials, methods and equipment of proven dependability to the end that projects shall be economical to construct, operate andmaintain." Section 3 ofArticle 678f provides certain exceptions not applicable toyour request. Inaddition to the projects excluded by Section 3, Section 4makes additional exclusions. Section 4 provides in part:

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### 1967 -Honorable Harry B.Kelton, page 3 (M-396)
"Inaddition to **the** projects excluded by Section 3 of thisAct, it is specifically provided thatnothing in thisAct shall apply to: "(A) Projects constructed by or under the supervision ofany public authorities created by the laws of this State, or !, 3,

. . . The powers of the Texas National Guard Armory Board are contained inTitle 97A of the Revised Civil Statutes ofTexas, 1925, as amended, being Articles 5931-l through 5931-13, Vernon's Civil Statutes. The general powers of the Texas National Guard Armory Board are stated inArticle 5931-4, as follows:

"Theboard shall constitute a public authority and abody politic and corporate and shall possess all powers necessary for the acquisition, construction, rental, control, maintenance, and operation ofall Texas National orTexas State Guard Armories, including all property and equipment necessary oruseful in connection with the armories."
Inaddition to the general powers of the Texas National Guard Armory Board, Article 5931-5 provides certain specific powers of theArmory Board, as follows:

"Theboard shall possess but isnot limited to the following powers:

#I

. . . "(2) to enter into contracts in connection with anymatter within the objects, purposes or duties of theboard.
. .

#I

. . .

**- 1968** **-**i :

Honorable Harry B. Kelton, page 4 (M-396)

"(7) to construct buildings onany of its real property, whether held in fee simple or otherwise, and to furnish and equip the same and tohold, manage and maintain all of said property. . . "(8) from time to time, toborrow money, and to issue and sellbonds, debentures, and other evidences of indebtedness for the

### purposesof acquiring one ormore building sites andbuildings, and for the purpose of constructing, remodeling, repairing, and equipping one ormore buildings,.
. .

Articles 5931-4 and 5931-5, Vernon's Civil Statutes, are articles dealing specifically with specified powers of the Texas National Guard Armory Board, while Article 678f. Vernon's Civil Statutes, applies to State building construction generally. Also, the provisions ofArticles 5931-l through 5931-13 were enacted subsequent toArticle 678f. Furthermore, Section 4 ofArticle 678f specifically excludes projects constructed by orunder the supervision of any public authority created by the laws of this State. The Texas National Guard Armory Board by statutory definition (Article 5931-4) is such public authority.

You are therefore advised that theArmory Board has the power and authority to act independently of the State Building Commission on the items and activities referred to inyour request, namely, the development of armory construction and related projects: the selection of a qualified registered architect orengineer and awarding an architect-engineer contract for design and construction supervision of armory and related projects: and the awarding of construction contracts on thebasis of open-market sealed bids for armory construction and related projects-

- **1969**-Honorable Harry B.Kelton, page 5 (M-396)
Inanswer toyour last question, you are advised that the Comptroller of Public Accounts may legally draw warrants, payable from funds in the State Treasury, appropriated to theArmory Board for such purposes in the payment of such services and/or contracts. SUMMARY
Pursuant to the provisions ofArticle 5931-4 and 5931-5, Vernon's Civil Statutes, the Texas National Guard Armory Board may act independently of the State Building Commission on the development of armory construction and related projects: the selection of aqualified registered architect or engineer and awarding an architect-engineer contract for design and construction supervision of armory and related projects: and the awarding of construction contracts on thebasis of open-market sealed bids for armory construction and related projects. The Comptroller of Public Accounts may legally draw warrants, payable from funds in the State Treasury, appropriated to theArmory Board for such purposes in the payment of such services and/or contracts. Youm very truly,

General of Texas Prepared by John Reeves Assistant Attorney General

-1970-

### HonorableHarryB.Kelton,page6 M-396)

APPROVED: OPINIONCOHMITTBE KernsTaylor,Chairman GeorgeKelton,Co-Chairman Marvin Sent011 SamMcDaniel RexH.White WardlowLane W.V.Geppert StaffLegalAssistant HawthornePhillips BtecutiveAssistant

-1971-