Mr. James A. Giddlngs Opinion No. Ww-231

Acting ExecutiveDirector Board for Texas State Hospi- Re: Is it necessary for tals and Special Schools the Board for Texas Austin,Texas State Hospitals and Special Schools to
secure approval of the Board of Control for ouilding contracts executed after August 31, 1957 involvingreappropriated funds under the 1957 General Dear Mr. Giddings: AppropriationAct.

We have your letter in which you call attention to the last paragraph of Opinion m-158 (1957)and then state:

"Section1 of Article II, House Bill 133,

Acts, 55th Legislature,R.S., reappropriated to the Board for Texas State Hospitals and Special Schools any unexpendedbalances remaining in the State HospitalsBuilding Fund appropriatedby H.B. No. 111, Chapter ilf( A;;s,lzzd Legislature,R.S., 1953, and

:;cts,54th Legislature,R.S., 1955, includingaccrued interest.

"Inview of the languageof OpinionNo. WW158 and in order that this officemay properly carry out its duties, we respectfully request an opinion from your office as to whether or not it is necessary to secure the approval of the Board of Control for contractsexecuted after September 1, 1957 involving these reappropriatedfunds."

For convenience,we will sometimeshereinafter refer to the Board for Texas State Hospitals and Special Schools as "HospitalBoard", and the State Hospitals and Special Schools Building Fund as "HospitalBuilding Fund".Mr. James A. Giddings, Page 2, (w-231)

In the abovementioned Opinion ~~-158,we were only concernedwith the extent of the authority of the Board of Control to review and approve the building contractsmade by the HospitalBoard. We only briefly mentioned the fact that the authority of the Board of Controlwould terminateafter August 31, 1957, for the

reason that we considered that the question discussed would becomemoot after that date which was only two months away, and also because we did not think it necessary to discuss the constitutionalquestion involved In the statute giving the Board of Control authority to review and approve b,uilding contractsmade by the Hospital Board.

As shown by the history of thismatter as set out in the footnote to this Opinion, it is clear to us that the authority and duty of the Board of Control to review and approve building contractsmade by the Hospital Board by virtue of all acts since 1949, and through the 54th Legislature,will expire after August 31, 1957. The only question is whether the authority of the Board of Controlhas been extended beyond August 31, 1957 by the 55th Legislature, 1957.

The General AppropriationAct of 1957 for the biennium beginning September 1, 1957, (HouseBill 133, Ch. 385 ActsR.S. 55th Leg., 1957,p. 870) at page 908 reappropriated to the Hospital Board the unexpended balances remaining in the Hospital Fund for building purposes. We are unable to find any provision in this AppropriationBill or any General Law where the Legislaturemade any provision for authority of the Board of Control to review or approve~thebuilding contracts made by the Hospital Board during the bienniumbeginning September 1, 1957.

You are, therefore,advised that it is not necessary for the Rospital Board to secure the approval of the Board of Control of building contractsmade by the Hospital Board after August 31, 1957.

SUMMARY

It is not necessary for theBoard for Texas State Hospitals and Special Schools to secure the approval of theBoard of Control of building contractsmade after,

. -.

Mr. James A. Giddings, Page 3 (WW-231)

August 31, 1957.

Very trulyyours,

WILL WILSON Attorney General of Texas

APPROVED: OPINION COMMITTEE: B. H. Timmins, Jr. Richard Stone By b&andAssistant

REVIEWED FOR THE ATTORNEY GENERAL BY: George P. Blackburn

HGC:jas

1. Chapter 316,page 588, Acts,Regular Session, 51st Legislature, 1949 (V.A.C.S.Article 317&b) created the HospitalBoard and placed upon said Board the powers theretoforeexercisedby the Board of Control except the Board of Controlwas to continue to handle all purchases.

The same Legislature at its First Called Session, 1950, by House Bill 2, Chapter 1, page 1 amended the original omnibus tax bill of 1935 which amendmentpertained only to the cigarette tax so as to provide a fund for the buildings of the State Hospitals and Special Schools. This amendment of 1950 amended the 1935 Act in the following respects:

(1) Section l(a)provided for an increase in the cigarette tax, and provided that Section 2 of the 1935 Act is "amendedso as to hereafter and until August 31, 195'7,

read as follows".

(2) Section l(b)provided for a different tax
on cigarettesandprovided that Section 2 of the 1935 Act is "amendedeffective September 1, 1955, so as toMr. James A. Giddings, Page 4 (ww-231)

thereafterread as follows".

(3) Section 2(a)provided that Section 3 of the 1935Act as amended "ishereby amended so as to hereafter and until August 31, 1957, read as follows". Said Section 2(a) the third unnumberedparagraphprovided that a certainportion of the cigarette tax shall be credited to a special fund to be known as the State Hospitals and Special Schools Building Fund which was createdby said section and limited the amount of this Fund to fivemillion dollars for the biennium ending August 31, 1951, and not in excess of fivemillion dollars for each fiscalyear thereafter. This same Section 2(a) of said House Bill 2 in the 5th and 6th unnumberedparagraphs containedprovisions reading as follows:

"All funds credited to the State Hospitals and Special Schools Building Fund under this Act are hereby appropriated to the Board for Texas State Hospitals and Special Schools for the purpose of constructing,repairing and equipping such buildings as in the opinion of the Board are necessary to theproper care of those committedor to be committed to such hospitals and special schools according to law. Provided, however, the feespaid to an architect shall not exceed six per cent (6%) for the plans, specificationsand supervisionsof said buildings and all contractsmade for and the final acceptance in connectionwith such construction other than theplans and specifications,shall be subject to the review and approval of the Board of Control.

"Allunexpendedbalances of funds appropriated to the said Board existing at the end of this or any succeedingbiennium shall revert and be returned to the State Hospitals and Special Schools Building Fund."

All of theprovisions of said Section 2(a) of House Bill 2 are carried forward in V.A.C.S.,Vol. 20, page 74 et seq as a part of V.A.C.S. Article 7047c-1, and with a heading reading "Textof Section 3 until August 31, 1957". It is to be noticed that the above quotedparagraphspertaining to the Board of Control
are placed under thisheading as being effective only until August 31, 1957. It is only a question as to whether any Act has been passed extending the authorityMr. James A. Giddings, Page 5 (w-23l)

of theBoard of Control under the above quotedprovision after August 31, 1957. It is also to be noticed thatVernon's statutes showedby Its heading that the above quotedportion of the 1951 Act pertaining to thepower of the Board of Control is not to be considered as a permanent act, but only a temporaryact effective until August 31, 1957.

(4) Section 2(b) of said House Bill 2 provided that Section 3 of the 1935Act as amended "is amended effective September 1, 1957." It is to be noticed that there is nothing whatever under this Section 2(b) to become effective on September 1, 1957,which allocates any part of the cigarette tax to the Hospital Building Fund or pertaining to thepower of the Board of Control over contractsmade by the HospitalBoard. All of theseprovisions of said Section 2(b) of said House Bill 2 are carried forward in V.A.C.S.,Vol. 20, page 77 under the heading "Text of Section 3 effective September 1, 1957".

After August 31, 1957, everything contained in Section 2(a) of said House Bill 2 will be wiped out, which will include the provision relating to the Board of Control, and on September 1, 1957, the provisions of Section 2(b) of said House Bill 2 will become operative unless changedby the Legislature.

Even if the Act did not provide that the provisions of Section 2(a) would expire at the end of the biennium ending August 31, 1957, that part of said Section above quotedpertaining to thepowers of the Board of Control would expire at the end of the biennium ending August 31, 1951, for the reason that the above quotedprovision is only an appropriationof the funds in the HospitalBuilding Fund, and giving the Board of Control power over the expenditure of these funds, and said appropriationunder ArticleVIII, Section 6 of the Constitution couldnot be for a longer term than two years. The Legislature recognized this view just expressed, for in the General AppropriationBill for 1951, Chapter 499, page 1228 at page 1298, Acts of the 52nd Legislature itmade an appropriationout of the Hospital Building Fund for thebiennium ending August 31, 1953. A rider or provision was attached to the appropriation in the identical language above quoted

as to the power of the Board of Control conained in the 1951 Act abovementioned.Mr. James A. Giddings,page 6 (W-231)

The GeneralAppropriationBill for 1953, Chapter 81, page 127 at page 161made an appropriationout of the Hospital Building Fund to the HospitalBoard for buildingpurposes for the biennium ending August 31, 1955. We are unable to find any provision in this appropriationor General Law giving any authority or duty to the Board of Controlwith reference to the expenditureof thismoney like that found in previous appropriations to the Hospital Board.

The GeneralAppropriationBill for 1955, Chapter 151,page 1348 at page 1376made an appropriationout of the HospitalBuilding Fund for buildingpurposes for the biennium endingAugust 31, 1957. This Appropriation Bill had no rider or provision relating to any power or duty of the Board of Controlwith reference to the expenditure of thismoney. However, under anotherAct of the ,sameLegislature, to-wit, House Bill 660, Chapter 404, Acts of the 54thLegislature,Regular Session,page 1080, the 1935Act was again amended by increasing the tax on cigarettesand said amendment contained the sameprovision as contained in Section 2(b) of the 1951Act which allocated to the Hospital Building Fund the samepercentage of the tax as formerly allocated and also appropriated this fund, and the same appropriationhad a clause identicalwith that contained in the 1950 and 1951 Acts pertaining to the duty and authority of the Board of Control. This appropriation,of course, could be for only two years (ArticleVIII, Section 6 of the Constitution),and, therefore, the authority of the Board of Control terminateswith the end of the biennium on AuglJst31, 1957. This view is f~urther strengthenedby the fact that the sameAct of 1955providesthat after August 31, 1957, all revenue derived from the cigarette tax, except that allocated to the School Fund, shall be credited to the GeneralRevenue Fund. In otherwords, there will be no additionalpart of the cigarette tax credited to the Hospital Building F,undafterAugust 31, 1957. This appropriationof the Building Fund expires after August 31, 1957, and the authority of the Board of Control also terminateswith the appropriation.

As stated in the body of this opinion, the 1957 appropriation for the bienniumbeginning September 1, 1957 does not contain any provision for the Board of Control to review and approve any contractsmade by the Hospital Board.