.

The Honorable Bevington Reed

Commissioner Coordinating Board Texas College and University Syetem P. 0. Box 12788,Capitol Station Austin, Texas 78711 OpinionNO. B-762

Re: Authority of the CoordinatingBoard, Texas College and University System, to control the cost of conetruction program8 undertakenby public colleges and universitie8.

Dear Dr. Reed:

You have asked us:

Does the Coordinating Board, Texas College and University System have the authority and the obligation under [EducationCode] Section 61.058,
as amendedby Senate Bill 706, 64th Texas Legislature, 1975, to regulate the expenditure of funds in dealing with construction and rehabilitation projects in institutions of higher education?

You explain that "[tlhe term 'regulate'in this question refers to guiding the relationship **of** dollare to facilities space toward an efficient ratio as determinedby Coordinating Board deliberationon each project."

Section 61.058 of the Texas Educaton Code, as amended [Acts 1975, 64th Leg..,ch. 676, p. 20551 reads (emphasis added):

**p. 3220** The Honorable Bevington Reed - page 2 (H-762)

Sec. 61.058. ConstructionFunds and Development of Physical Plants

To assure efficient use of constKc=unde and therxrly development omeical plants to accommodateprojected college student enrollments, the board shall:

(1) determine formulas for space utilization in all educational and general buildings and facilities at institutionsof higher education; (2) devise and promulgate methods to assure maximum daily and year-round use of educational and general buildings and facilities, includingbut not limited to maximum scheduling of day and night classes and maximum summer school enrollment: (3) considerplans for selective standards of admissionwhen institutions of higher education approach capacity enrollment: (4) require, and assist the public senior colleges and universities, medical and dental units, and other agencies of higher education in developing, long-rangeplane for campus development; (5) endorse, or delay until the next succeeding sessionof the legislature has the opportunity to approve or disapprove, the proposedpurchase of any real property by an institution of higher education, except a public junior college: rules(6) develop and publish standards,

and regulations to guide the instiiutionsand agencies of higher education inmaking application for the approval of new constructionand major repair and rehabilitationof all buildings and facilitiesregardless of proposed use:

p.3221”

.

The Honorable BevingtonReed - page 3 (H-762)

(7) ascertain that the standards and specifications for new construction, repair, and rehabilitation of all buildings and facilities are in accordance with Chapter 324, Acts of the 61et Legislature,Regular Session 1969, as amended (Article678(g)Vernon's Texas Civil Statutes); and (8) approve or disapprove all
new construction and repair and rehabilitationof all new buildings and facilitiesat inetitutione of higher education financed from any source other than ad valorem tax receipts of the public junior colleges,provided that: (A) the board's consideration and determination shall be limited to thepurpose for which the new or remodeled buildings are to be used and their gross dimensions to assure conformitywith approved spaceutilization standardsand the institution'sapproved programs and role and scope: (B) the requirement of approval for new construction financed from other than appropriated funds applies only to projects the total cost of which is in
excess of $100,000; (C) the requirement of approval for major repair and rehabilitation of buildings and facilitiee applies only to projects the total cost of which is in
excess of $25,000; and (D) the requirement of approval or disapproval by the board does not apply to any new construction or major repair and rehabilitationproject that is specifically approved by the legislature.

p.3222n ^

The Honorable Bevington Reed - page 4 (H-762)

Sub,section(8)specificallyprovides thatwhen approving or disapprovingnew constructionprojectsand repair and rehabilitationof buildings the CoordinatingBoard's consideration is limitedto two factors. The Boardmay consider (1) whether the purpose of the building conforms to the institution's approved programs, role and scope, and (2)whether the gross dimensions of the building are consistentwith the Board's space utilizationstandards and with the inetitution's approvedprograms, role and scope. There isno express or implied authority in subsection (8) for the Coordinating Board to specificallyregulate the expenditureof funds for constructionor rehabilitationprojects. Of course,while the Board may not epecifically regulate the expenditure of funds, itspromulgation of space utilization standards and determination **of** an institution'sprograms,role and scope will necessarilyhave an indirect effect on the amount of fundswhich will be expended for constructionand rehabilitation of buildings.

Your secondquestion is:

If the response to question Xl is negative,does the CoordinatingBoard have the authority to consider cost as a factor in its approval or disapproval of institutionalrequests for new construction and/ormajor repair and rehabilitation projects?

As in the answer to your first question, subsection (8) specifically limits the factors the Board may consider in approving or disapproving construction and rehabilitation projects, and the factors listed do not include cost. Therefore, the Board may not utilize a cost consideration when consideringthe proposals submitted to it.

p.3223The Honorable Bevington Reed - page 5 (H-762)

SUMMARY

The Coordinating Board, Texas College and University System, does not have the authority to regulate the expenditure of construction funds or to consider cost as a factor in determining whether to approve or disapprove an institution's application for the construction, rehabilitation or repair of buildings or facilities at institutions of higher education. However, its promulgation of space utilization standards and determination of an institution'sprogram, role and scope will indirectly affect the amount of funds expended for construction and rehabilitationof buildings.

yery truly yours,

Attorney General of Texas

APPROVED:

Opinion Committee
jwb

p,3224