The Honorable H. R. Nieman, Jr. Opinion No. H-047

Director State Building Commission Re: Authority of Board Stephen F. Austin Building of Control and State Austin, Texas Building Commission.

Dear Mr. Nieman:

You have requestedour opinion concerning the relative authority of the Building Commission and the Board of Control regarding the allocationof space in a building,which was recently acquiredby the Building Commission on behalf of the State. Followingwhat you have termed a major renovation, the buildingwill be used for stateoffices. You have asked whether the Building Commissionor the Board of Control has title to the building and thepower to allocate the space therein.
Article 665,V.T.C.S., provides in part:

The State Board of Control shallhave charge and control of all public buildings, grounds and property of the State

. . .. [alndthe Board shallbe authorized to provide for the allocationof space in any of the public buildings to the departments of the State Government. Article 67Sm,V.T.C.S.,which establishes the Building Commission,provides in part:

p.3571The Honorable H. R. Nieman, Jr. - page 2 (H-847)

Sec. 3. The Commission shallhave the authority to promulgate such rules and regulations as it deems proper for the effective administrationof thisAct. Under such terms and conditions asmay be provided by law, the Commissionmay acquire necessary real and personal property,modernize, remodel, build and equip buildings for State purposes

. . . .

. *

. Sec. 7. The Commission shallobtain title for the state and retain control of the real property acquired for sites and of the buildings located thereonuntil final construction is completed and the buildingsare occupied by the state agencies to be housed therein, at which time themanagement and control of saidbuildings including the inventoryvalues of the sites and the buildings located thereon, shall be transferred to the Board of Control. Except as otherwiseprovided in thisAct, the initialoccupants shall be those state agencies agreed upon by the Commission and the Board of Control. This Section, as amended, shall apply to all new statebuildi,ngs constructedheretofore or thatmay be constructedhereafter in Austin, by the State Buildi,ng Commi.ssion.
Article 67Sf,V.T.C.S., the State Building Construction AdministrationAct designates the Commission as the administering agency, section 5(A); empowers the Commission to enter construction contracts, section 81Cj; and authorizes the Commission to promulgate rules and regulationsnecessary to implement its powers, duties, and responsibilities,section 5(F). Section 13(C)provides that:

Upon completion of the project the Commission shall release the same to the using agency . . . O

p.3572The Honorable H. R. Nieman, Jr. - page 3 (H-847)

Section 2(A)provides that: [T]heState Board of Control shallbe considered the using agency for

. . . stateowned buildingsmaintained by the Board.
Article 678mwas enacted in 1955pursuant to article 3, section 51-b(c)of the Texas Constitution. The Building Commission therebybecame the authoritywhich acquires and constructs stateproperty. Prior to its 1963 amendment, section 7 of article 678m read:

The Commission shall obtain title for the state and retain control of the real property acquired for sites and of the buildings located thereon until final construction is completed and the buildings are occupied by the state agencies to be housed therein, at which time the management and control of saidbuildings shall be transferred to the Board of Control. Except as otherwiseprovided in thisAct, the initial occupants shallbe those state agencies agreed upon by the Commission and the Board of Control.
Since article 665 had long been in existence and since article 678f was not enacted until 1965, the progression of control over stateproperty from 1955 to 1963was as follows. The Building Commission acquired the property and performed any constructionprojects necessary. V.T.C.S. art. 678m, fi 3. These projects have always includedones of renovation and repair. Attorney General OpinionsM-780 (1971);M-695 (1970);NW-1429 (1962);NW-1215 (1961);NW40 (1957). After the constructionwas completed and the building occupied the Commission transferredcontrol thereof to the Board. V.T.C.S. art. 678m, § 7. The Board then had charge and control of the building. V.T.C.S. art. 665. Thus a systemwas established which provided statutoryauthority for the acquisition, construction, control, and transfer of control of state buildings.
In 1963 section 7 of article 678mwas amended to include the clause relating to the transfer of inventoryvalues and the last sentenceof the present section,which states:

p.3573The HonorableH. R. Nieman, Jr. - page 4 (H-847)

This Section, as amended, shall apply to all new statebuildings constructed heretofore or thatmay be constructedhereafter inAustin, by the State Building Commission.
Prior to the addition of this sentence therewas nothing in section 7 thatwould have confined its application to less than the entirety of article 678m. As previously noted, article 678mhas always applied to the acquisitionand renovation of buildings; therefore,before its 1963 amendment, section 7 also applied to suchbuildings.

In our opinion, the Legislaturedid not intend to narrow the application of section 7 by adding the last sentence thereof; rather, the Legislature intended tomake clear that section 7 applied in part to "new statebuildings constructed

. . . by the State Building Commission." Had the Legislature intended to limit that application of section 7, they could easily have stated that the section applied on1 -8 to such "new statebuildings." Tomerely state that t e section applies to suchbuildings is not to provide that it applies to no others. Thus any restrictionon the existing application of section 7 would be by implication. We do not believe the Legislature intended to imply such a restriction, for amendments are construed so as to harmonizewith theAct amended. 82 C.J.S, Statutes, 9 384,p. 897. Since article 678fwas not in existence at the time of the amendment in question, any restriction of the application of section 7 to less than that of article 678mwould result in a lack of statutory authority for the transferof control of buildings other than "new state buildings constructed

. O

.by the I

. .Commission." Such a constructionof the amendmentwould create a lack of harmony in the act amended and would run counter to the rule of construction that amendments are to be construed as part of a coherent system of legislation. 82 C.J.S. Statutes, 9 384,pa 896. It is thereforeour opinion that the application of section 7 of article 678mwas not and is not limited to "new statebuildings constructed

. a .by the State Building Commission:" rather, section 7 applies to all buildings acquired and constructedby the Commission in the absence of a specific statute indicatingotherwise.

p.3574The HonorableH. R. Nieman, Jr. - page 5 (H-847)

We do not believe section 13(C) of article 678f to,be such a statute. Even were it to apply to newly acquiredbuildings and require the transfer thereof to the Board of Control as the "usingagency," a questionwe need not decide, section 13(C) in no way abrogates the specificprovisions of section 7 of article 670m. Such an abrogationwould constitute an implied repeal of the provisions of section 7 of article 678m, and would be inconsistentwith the rules of statutory construction. 53 Tex. Jur. 2d Statutes, SS 100, 102, 104. Section 7 of article 678m is therefore applicable. Its provisionsput title and control of acquiredbuildings in the Building Commission, require a transfer to the Board of Control after renovation is completed and the building is occupied, and state that the initial occupantswill be those agreed upon by the Board and the Commission. In the event that the two agencies cannot agree on the initialoccupants, in our view the Building Commission is the superiorauthority in the matter, since article 678m, section 8 provides:

Sec. 8. The Commission shall have the authority to call on any Department of State Government to assist it in carrying out the duties of the Commission. And particularly, it shallbe the duty of the Board of Control to do and perform such acts and functions in connectionwith this Act as the Commission may direct .~. . . SeeV.T.C.S. art. 678m, S 3. - Furthermore, inAttorney General OpinionWW-1215 (1961), this office stated:

We are of the opinion that the functions given the Board of Control under thisAct have to do,mainly, with themanagement of the buildings after being occupied by the State agencies and the control of the personal property located therein and that any additional duties given the Board of Control as to state building sites and properties are to be delegated to the Board of Controlby the State Building Commission.

p.3575The Honorable ?I. R. Nieman, Jr. - page 6 (H-84%1

It is therefore our opinion that the control and title to a recently acquired and renovatedbuilding are lodged with the Building Commission until transferred to the Board of Control pursuant to section 7 of article 678m. Nothing in this opinion is intended to alter the Board's duty under the GeneralAppropriationsAct to provide utility'service to the building.
SUMMARY

When a building is acquiredby the State and is to be renovated and repaired, control of the building is transferred from the State Building Commission to the State Board of Control at the completion of the renovation.
Very trulyyours,

Attorney General of Texas
APPROVED:

Opinion Committee jwb

p.3576