Honorable Robert S. Calvert

Comptroller of Public.Accounts Austin, Texas
OpinionNo. C-536

Re: Construction of interagency contract between theTexas Department of Mental Health and Mental Retardation and Dear Mr. Calvert: the State, Building Commission.

Your request for an opinion reads as follows:

"I am endlosing an account payable to the State Building Commission In the amount of $1,395.9&, Incurredunder an interagency contract with the Texas Department of Mental Health and Mental Retardation. A copy of the interagencyagreement is attached.

"Youwill please advise if accounts incurred under this contract would be legal charges against the following appropriationmade to the Department of Mental Health and Mental Retarda-. tionwhich is found on page 21, Item 24, Article II of Rouse Bill #12, Acts of the 59th Legislature.

"'Salariesof Classified Positions (excluding Legal and Claims Division).........., $334,506.00’

"Abreakdown of the account shows that the amount of the claim,,$1,395.94, is to be deposited in the appropriation to the Building Commission in the,followin manner. services', $1,1&2.00 'Professionalfees and 'Travelexpense', $253.94. Both appropriation a&ounts being itemized appropriations of the Building Commission.

"Ifyour answer to the above question is in the negative, would payments under the contractbe

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Hon. Robert S. Calvert, page 2 (C-536)

governedby this provision which is found on Page 27 of theAppropriation Bill and reads
as follows:

"'SaidDepartment Department of Mental Health and Mental Retar6,tion) is authorized to pay from the respective items under the State Hospitals and Special Schools Building Program the salary and travel of construction project inspectorsand the salaries of mechanics and laborers as may be required. Such constructionproject inspectorsmay be employedunder the titles of Clerk of the Works I (9096)and Clerk of theWorks II (9097).'

"If you advise that the account is payable out of the classified salaryappropriation, could the proceedsAbedeposited in themanner requested
or must the depositsbe a reimbursement to the appropriation out of which the employeeswere., paid?

Subdivisions (A), (B), (E)and (G) of Section 5 of House Bill 37, Acts of the 59th Legislature,Regular Session, 165, % Chapter 455, page 926, compiled inVernon's as Article 67 f, Vernon's Civil Statutes, and known as the State Building ConstructionAdministrationAct, provide as follows:

"(A) The State Building Commission is hereby designatedas the administeringagency and shall exercise the powers and duties conferredupon it by thisAct in addition to all powers, duties and responsibilitiespreviously conferred upon it by Acts of the 54th Legislature,Regular Session, 1955, Chapter 514, as amended (compiledas Article 678m, Vernon's Annotated Civil Statutes), and the provisions of suchAct, as amended, shallapply where pertinent to all constructionunder the provisions of thisAct. The Commission shall be the coordinatingauthority for the construction of any multiagency State office buildingswhich the Legislaturemay, from time to time, authorize.
"(B) The,Commission shall, subject to the provisions of the AppropriaticnAct and such General Laws as may apply, employ professional, technical and clericalpersonnel. In selecting suchpersonnel, the Commission shall give first preference to persons currently employed in the hgineering Section of the

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State Board of Control and in the Design and ConstructionDivision of the Board for Texas State Hospitals and Special Schools."

"(E) The operating expenses of the State Building Commission shall,unless otherwise specifiedby the Legislature, be paid from appropriationsmade out of the State Building Fund. The State Building Fund shallbe reimbursed for such expenditures from the funds appropriatedby the Legislature for projects supervisedby the Commission. In order that each project shallbear its fair and proper share of the Commission's expenses, the Commission shall Instituteand maintain a cost accounting systemwhich shall be devised by the State Auditor as soon after the effective date of this Act as possible."
"(G) On or before the first working day of the fiscal year beginning September 1, 1965, all files, records, equipment, furnishings and personal property of all kinds heretoforeused by the Engineering Section of the Building Engineering and Management Division of the State Board of Control and by the Design and Construction Division of the Board for Texas State Hospitals and Special Schools shallbe transferred to ,theCommission. The Commission shall agree with the State Board of Control and with the Board for Texas State Hospitals and Special Schools on the personal property to be transferred and shall evidence such agreement in a written inventoryto be signedby representatives of the Commission end the respective Boards. The agreementwhen
so signed shall be full authority (1) for the Commission to transfer the personalproperty listed thereon to Its control and (2) for the Comptroller of Public Accounts to enter any inventoried items on the property Inventoryrecords of the Commission and to delete the same items from the property inventoryrecords of the State Board of Control and of the Bzard for Texas State Hospitals and Special Schools.

Subdivision (D) of Section 7 of House Bill 37, provides:

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"(D) There is hereby appropriated out of the GeneralRevenue Fund to the State Building Commission for the Implementationof the 'Building ConstructionAdministrationAct' for an Archaeologist the sum of Twelve Thousand Dollars

t$12,000) each fiscal 3ear, four ProjectAnalysts not to exceed $12,000 the sum of Forty-four Thousand Dollars ($44,000) each fiscal year. Salaries of Classified Positions the sum of One Hundred Thousand Dollars ($100,000)each fiscal year, ProfessionalFees and Services, Fifteen Thousand Dollars ($15,000)each fiscal year and unexpended balances of the first year of the biennium, Travel Expenses, Fifteen Thousand Dollars ($15,000) each fiscal year and unexpended balances of the first year of the biennium, Other Operating Expenses, Fifty Thousand Dollars ($50,000)each fiscal year and unexpended balances of the first year of the biennium. The combined sum for the biennium from the General Revenue Fund shallbe Four Hundred Seventy-two Thousand Dollars ($472,000)."

Pursuant to the authority vested in the State Building Commission by the provisions of Section 5 of House Bill 37, Acts of the 59th Legislature,Regular Session, 1965, and the provisions of Article 678m, Vernon's Civil Statutes (SeeAttorney General’s OpinionWW-1120 (1961)), the State Building Commission and the Department of Mental Health and Mental Retardation, successor to the Board for Texas State Hospitals and Special Schools, entered into a contractwhereby reimbursementwas to be made to the State Building Commission for servicesrendered on constructionprojects previously entered into by the Board for Texas State Hospitals and Special Schools.

It Is noted that the appropriation to the Department of Mental Health and Mental Retardation contained certain classifiedpositions now under the jurisdiction of the State Building Commissionby virtue of the provisions of House Bill 37 of the 59th Legislature. Since House Bill 37 specifically provided for reimbursement to the StateBuilding Commission for expenditures'forprojects now supervisedby the Commission, it was necessary to enter into the contract in question in order to assure that the projects under constructionwould continue to have qualified supervision. The contractprovides as follows:

"Pursuantto authorityprovided In Chapter 514, Acts, Fifty-fourth Legislature,Regular

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Hon. Robert S. Calvert-,,.page~5~~(G-536) '~

Session, and Attorney,Generall,s,Opinion No. WW-1120, 1961, this agr’eemerit 'isentered into by the,Sta,te~~Bullding.Commission,.actlng through its Executive.

Director3 and the~Departmentof Mental Health and Mental.Retardation,acting through its.AotingCommissioner.

%HEREAS, proper,andworkmanlike construction is'pequ,ired

ln.all structures erected by the State.of Texas; :and 'y

"WHEREAS,economical,proper and workmanlike construction can best be insuredby quallfied supervisionduring~the constructionphase; and

'WHEREAS,the,Department of Mental Health and Mental Retardation has current construction projects on which continuing qualified supervision Is required, and on which Clerks of the Works are presently employed;

'Now,Theref,ore,It is agreed by and between the parties hereto that effective September 1, 1965 the Department of Mental Health and Mental. Retardation agrees to reimburse the State Building Commission for these services for the fiscal year beginning September 1, 1965 in the maximum amount of Sixteen Thousand One Hundred Fifty-two and OO/lOO Dollars ($16,152.00).

"THISAGREEMENT shall continue on a month to month basis, in whole or in part, and may be terminated by the mutual consent of both parties.

"INWITNESS WHEREOF the ,covenant .herein described Is made this 1st day of September,~ 1965."

You are therefore advised that the account payable to the State Bulldlng Commission, incurredunder the interagency contractwith the Texas Department ofMental Health and Mental Retardation is a legal charge against the appropriation in House Bill No. 12 for 'Salaries of Classified Positions (excluding Legal and Claims Division)" and the proceeds can be deposited in the following Itemized appropriations to the Building Commission: "Professionalfees and services'and %ravel expense."

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SUMMARY

The account payable to the State Building Commission, incurredunder the interagency contract with the Texas Department ofMental Health and Mental Retardation is a legal charge against the appropriation in House Bill No. 12 for "Salaries of Classified Positions (excludingLegal and Claims Division)" and the proceeds can be deposited in the following itemized appropriations 'tothe Building Commission: "Professionalfees and services'and 'Travelexpense."
Very truly yours,

WAGGONER CARR Attorney General

Assistant

JR:ms:mkh

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman Malcolm Quick Paul Phy John Banks Tom Routt

APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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