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

Acting Executive Director 

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 involving reappropriated funds under 

the 1957 General 

Dear Mr. Giddings: Appropriation Act. 

We have your letter in which you call attention 

to the last paragraph of Opinion m-158 (1957) and then 

state: 

"Section 1 of Article II, House Bill 133, 

Acts, 55th Legislature, R.S., reappropriated 

to the Board for Texas State Hospitals and 

Special Schools any unexpended balances 

remaining in the State Hospitals Building 

Fund appropriated by H.B. No. 111, Chapter 

ilf( A;;s,lzzd Legislature, R.S., 1953, and 

:;cts, 54th Legislature, R.S., 

1955, including accrued interest. 

"In view of the language of Opinion No. WW158 and in order that this office may 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 

contracts executed after September 1, 1957 

involving these reappropriated funds." 

For convenience, we will sometimes hereinafter 

refer to the Board for Texas State Hospitals and Special 

Schools as "Hospital Board", and the State Hospitals and 

Special Schools Building Fund as "Hospital Building Fund". 
Mr. James A. Giddings, Page 2, (w-231) 

In the above mentioned Opinion ~~-158, we were 

only concerned with the extent of the authority of the 

Board of Control to review and approve the building 

contracts made by the Hospital Board. We only briefly 

mentioned the fact that the authority of the Board of 

Control would terminate after August 31, 1957, for the 

reason that we considered that the question discussed 

would become moot after that date which was only two 

months away, and also because we did not think it necessary to discuss the constitutional question involved In 

the statute giving the Board of Control authority to 

review and approve b,uilding contracts made by the Hospital Board. 

As shown by the history of this matter 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 contracts made 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 Control has been extended beyond August 31, 1957 by 

the 55th Legislature, 1957. 

The General Appropriation Act of 1957 for the 

biennium beginning September 1, 1957, (House Bill 133, 

Ch. 385 Acts R.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 

Appropriation Bill or any General Law where the Legislature made any provision for authority of the Board of 

Control to review or approve ~the building contracts 

made by the Hospital Board during the biennium beginning 

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 contracts made by 

the Hospital Board after August 31, 1957. 

SUMMARY 

It is not necessary for the Board 

for Texas State Hospitals and 

Special Schools to secure the 

approval of the Board of Control 

of building contracts made after 
, 

. -. 

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

August 31, 1957. 

Very truly yours, 

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 Hospital Board and placed upon said Board the 

powers theretofore exercised by the Board of Control 

except the Board of Control was 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 amendment pertained 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 "amended so as to hereafter and until August 

31, 195'7, read as follows". 

(2) Section l(b) provided for a different tax 

on cigarettesand provided that Section 2 of the 1935 

Act is "amended effective September 1, 1955, so as to 
Mr. James A. Giddings, Page 4 (ww-231) 

thereafter read as follows". 

(3) Section 2(a) provided that Section 3 of the 

1935 Act as amended "is hereby amended so as to hereafter and until August 31, 1957, read as follows". Said 

Section 2(a) the third unnumbered paragraph provided 

that a certain portion 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 

created by said section and limited the amount of this 

Fund to five million dollars for the biennium ending 

August 31, 1951, and not in excess of five million 

dollars for each fiscal year thereafter. This same 

Section 2(a) of said House Bill 2 in the 5th and 6th 

unnumbered paragraphs contained provisions 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 the proper care 

of those committed or to be committed to such 

hospitals and special schools according to law. 

Provided, however, the fees paid to an architect 

shall not exceed six per cent (6%) for the plans, 

specifications and supervisions of said buildings and all contracts made for and the final 

acceptance in connection with such construction 

other than the plans and specifications, shall 

be subject to the review and approval of the 

Board of Control. 

"All unexpended balances of funds appropriated to the said Board existing at the end 

of this or any succeeding biennium shall revert 

and be returned to the State Hospitals and 

Special Schools Building Fund." 

All of the provisions 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 "Text of Section 3 until 

August 31, 1957". It is to be noticed that the above 

quoted paragraphs pertaining to the Board of Control 

are placed under this heading as being effective only 

until August 31, 1957. It is only a question as to 

whether any Act has been passed extending the authority 
Mr. James A. Giddings, Page 5 (w-23l) 

of the Board of Control under the above quoted provision after August 31, 1957. It is also to be noticed 

that Vernon's statutes showed by Its heading that the 

above quoted portion of the 1951 Act pertaining to 

the power of the Board of Control is not to be considered as a permanent act, but only a temporary act 

effective until August 31, 1957. 

(4) Section 2(b) of said House Bill 2 provided 

that Section 3 of the 1935 Act 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 the power of the Board 

of Control over contracts made by the Hospital Board. 

All of these provisions 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 changed by 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 

quoted pertaining to the powers of the Board of Control 

would expire at the end of the biennium ending August 

31, 1951, for the reason that the above quoted provision is only an appropriation of the funds in the 

Hospital Building Fund, and giving the Board of Control 

power over the expenditure of these funds, and said 

appropriation under Article VIII, Section 6 of the 

Constitution could not be for a longer term than two 

years. The Legislature recognized this view just 

expressed, for in the General Appropriation Bill for 

1951, Chapter 499, page 1228 at page 1298, Acts of the 

52nd Legislature it made an appropriation out of the 

Hospital Building Fund for the biennium 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 above mentioned. 
Mr. James A. Giddings, page 6 (W-231) 

The General Appropriation Bill for 1953, Chapter 

81, page 127 at page 161 made an appropriation out of 

the Hospital Building Fund to the Hospital Board for 

building purposes for the biennium ending August 31, 

1955. We are unable to find any provision in this 

appropriation or General Law giving any authority or 

duty to the Board of Control with reference to the 

expenditure of this money like that found in previous 

appropriations to the Hospital Board. 

The General Appropriation Bill for 1955, Chapter 

151, page 1348 at page 1376 made an appropriation out 

of the Hospital Building Fund for building purposes 

for the biennium ending August 31, 1957. This Appropriation Bill had no rider or provision relating to 

any power or duty of the Board of Control with 

reference to the expenditure of this money. However, 

under another Act of the ,same Legislature, to-wit, 

House Bill 660, Chapter 404, Acts of the 54th Legislature, Regular Session, page 1080, the 1935 Act was 

again amended by increasing the tax on cigarettes and 

said amendment contained the same provision as contained in Section 2(b) of the 1951 Act which allocated 

to the Hospital Building Fund the same percentage of 

the tax as formerly allocated and also appropriated 

this fund, and the same appropriation had a clause 

identical with 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 (Article VIII, Section 6 of the Constitution), and, therefore, the authority of the Board 

of Control terminates with the end of the biennium on 

AuglJst 31, 1957. This view is f~urther strengthened by 

the fact that the same Act of 1955 provides that after 

August 31, 1957, all revenue derived from the cigarette 

tax, except that allocated to the School Fund, shall be 

credited to the General Revenue Fund. In other words, 

there will be no additional part of the cigarette tax 

credited to the Hospital Building F,und after August 31, 

1957. This appropriation of the Building Fund expires 

after August 31, 1957, and the authority of the Board 

of Control also terminates with the appropriation. 

As stated in the body of this opinion, the 1957 

appropriation for the biennium beginning September 1, 

1957 does not contain any provision for the Board of 

Control to review and approve any contracts made by 

the Hospital Board.