Hon; Claude Gilmer. Chairman
Board for Texas State Hospitals
and Special Schools
Austin. Texas                           Opinion No. V-977

                                        Re:   The applicability of a
                                              city building code to
                                              construction on state
                                              property within the
                                              city limits.

Dear Sir:

            Your letter states that:

            ‘At the present time. this Board is construct-
      ing two employees* residences’at the Austin State
      Hospital., Specifications call for a two-inch bath-
      room vent. An ordinance of the .City of Austin re-
      quires a four-inch vent.

             yThi City of Austin is threatening to sue for
      revocation of the ~license of the contracting-plumb-
      ing firm. if they proceed with the State’s specifica-
      tions.

             ‘Question: Does a city ordinance relative con-
      struction govern,construction on state property with-
      in the city limits?’

              It is our opinion that your Board need not be governed
.by the city building code in regard to the plumbing specifications
 in the buildings mentioned.     ’

              The question of the applicability of municipal ordi-
 nances to buildings and facilities erected or operated by ,or un-
 der the authority of the state has never been passed upon by any
 Texas court. Courts in only six states (California, Georgia, Ken-
 tucky, Missouri, Utah, and Wisconsin) have written on this ques-
 tion. of these states, three (Georgia, Kentucky and Wisconsin)
 unqualifiedly hold such ordinances inapplicable to state buildings;
,the other threes (California, Missouri and Utah) hold them applic-
 able for some purposes but inapplicable for other purposes.
Hon. Claude’ Gilmer. Page 2            (V-977)



             Our conclusion from these cases is that it is a mat-
ter of statutory interpretation as to whethermuuicipal ordinances
apply to buildings erected or operated by or under the authority.
of the State. Each case .requires an examination of the statutes
to determine what powers have been given by the legislature to
the particular state board or agency involved and what powers
can be exercised by the municipality. If the regulatory power in
question has been given by the legislature to the state board or
agency, the effect is to limit the comparable regulatory power of
the municipality in so far as it conflicts or is mconsistent vdth
the power given the board or agency.

               The case most nearly in point on this question, be-
cause of the Qpe of regulation involved, is .Board of Education
of City of St. Louis.v. City of. St. Louis. 267 &lo. Oifb, 184 8 . TV-.-
      lylb) . llu s was au action to eajom the city and its super-
        ,$f plumbing from interfering with the co+ructioa      of a -
schooX’building in $.he.city. The &iaaace      sought to be enforc-
ed by the city pertained, as does the one now in question, to the
typz of.‘ients to be used ip the building. Affirming ‘a judgment,
for’ the plsintiff. the court said:
             aI
               . . . . There is no question raised as to reason:
      ableness of the ordia+i&s of the city or. regu$atioas ‘.
      of its board ,of public improvements, -nor as to wheth-..
      er either. system, of venting is superior: to ,the other,
      but the’case .$s presented and discussed upon-the broad
      propokitioa as to whether or not the board of education ,.
      ip this particuhr, is +bject to the ordinances snd reg-
      ulationg of the city in this respect. . , l
                               .
              “&ctioa 26 of article 3 of the charter then in
      force provided, among other things, that the mayor .a&
      assanibly s+aWJuive pow+r. ‘*           .tlnekity, -~y4qliaaace
      ZlO&iUCt+SiS~’           ‘the   ‘6QUr‘titatton   OF   .?+i;aW   Of   this
       .st&e ‘Qr.of2t$&whkiteF, t.q 4p:t+%:~i#ou&ug~s:          :In
      ..clauae&‘tocoi&uct%nd~keep         in:&@+      &I3bridges,
       stmd-s, seweks;and-drains,       and~~rigolate    theuse., ~.
                                      ‘.
       fhereod; la clause ,12,,to-.prqde for +&a safe construe-




               “‘phe powers and ,duties of this board (of educatioa)~
Hoa.   Claude Gilmer,   Page 3    (v-977)



        were higbly specialized in the act, and included the
        ‘general and supervising control, giweraing,aud man-
        agement of the public schools, and public school prop-
        erty in Such’city,’ the power toappoint such officers,
        agents and ‘employes as it may deem necessary and
        proper, to make, amend, and repeal rules and by-laws
       for the government. regulation and management of the
        public schools and school property in such city, and ex-
        ercise generally all powers in the administration of the
        public school system therein; and have all the powers
        of other school :districts under the laws of the.state ex-
        cept as herein provided. Particularizing further, it pro-
       vides for the appointment by the board of education’of a
        cotimissiioner of schoolbuildinge who ‘shall be charged
       with the care of the public school buildings of such city,
        and with the responsibility for’t$e veatiJation, warming,
        sanitary condition and proper repair thereof, and shall
       ~prepare, or cause to be prepared. all specifications and
       drawings required, and shall superintend ‘all the construc-
        tion and repair of all such buildings.’ In )he perform&e
        of .these duties he was requiire,d tc appoint s@  assis-’
        tants as should be authorized by the’board of education,
        one of who&i “shall be a trained and educated enp-ineer.
        qualified to design and con&ruct the ‘heating, lighting,
       ventilating, and sanitary machir.$ry and apparatus coa-
       netted with the public school bmldmgs.

               -It will be noted that this &t not only gives the
       board of education plenary power with reference to the
       construCti@; m~ntenaxice. and care of the public school
       buildings of the city; but descends into matters connect-
       ed with the health and comfort of the pupils, including
       the designing as well as the construction and;mainte-
       nance of the very appliance, which are ~the subject of
       this litigation, ventilating and sanitary machinery and
       apparatus to be ‘installed and..maint+ned’for the remov-
       .il from the building ~of foul and nokiqus air -necessarily
       generated in the use of the water.-closets.

              “We’have been favored by counsel on both sides
       with exhaustive and highly iutere$ing briefs and argu-
       meats relating to the presumptions whkh sho.uld pre-’
       vail in determining whether’L&ws ef’the character of
       the charter of St. Louis and ordinances passed in pur-
       suance of its terms are applicable ,to the sovereign,
       and whether they are repealed by general laws which
       do not in terms mention them. We cannot appreciate
       the application of either of these questions to this case.
       The f&t does not rest upoipresumption,      forsovereign-
4112
       Hon. Claude Gilmer,   Page 4     (V-977)



             ty itself has dealt with the ‘subject of the construe-
             tioa and management of the property which is held
             aud used by its agents for:t.Ke highest, go&nmeatal
             purposes, and we have to look no further than its
             legislative declarations to determine in whom the
             authority claimed by each of the-parties. to this pro-
             ce,ediag.is vested; and as to the second question, so
             ably argued .we have only to look to the cqaverse of
             @uzproposition stated by counsel for appellant. The
             question is not whether a law, of gene+      appBcatioa
            ‘.in the City of St. Louis impliedly repeals any of the
             provisions of a special act or charter for the govera-
             ment of that community, but it is whether the general
             charter yields to the prov$sions of a law ha-g      spe-
             cial application to particular matters,and things with-.
             in the field of ita operation. The statement of this
             question includes ita answer.
                   ”       We have carefuBy examined the author-
                      !.t
             ities cited by the appella& apd f*d but oaeF.Pasa-
             dena School District v. Pasadena, 166 Cal.’ 7,134 Pac.
             985. 47 L.R.A. (N.S.) 892, Ann. Gasi iSUB, x039, which
             seems to qkestioa the view we have taken. . t .

                     *It wiil be seen that the issue, in that case was
              entirely different from the issue in this. Here the
              right to erect .a building within the l$mits of the city
             ,is.not invofved. but only the quest&on as to which of
             ‘those two contending municipalities is clothed by
              stat&a with the wrightto determine interior s4tary
              arr’aageme+s for the veatilatioa,of-its water-ckosets,
              SO,as to promote the health and comfort ‘of the pupils
              and teachers who shou$d be Sts inmates.. We t&ink it
              is peculiady appropriate that those changJ-y..?  Aiih the
                                                                     :
              custody and central of the pupils whiSe’.in e buiM+g:
              should also“. be charged with the pr.ote@oa of tber
              health wh+le engaged in their studies. The. Legis$r+
              tqre seems tg have taken this vies-f      t&e matter,. a+3
              has, in our opinioti in unn$stakable terms placed,
              that.r.esponsibility upon. the board. ! . *v.

                      The +er   cases which &iscus.s :+.I@appBcabi$ty of mu+
        nicipsl ordinances to state agencies under the particular-:sta
       ‘of the jurisdiction are Kentucky Ins$itu@on for Education 1 of .Blind
                                                                       413’
HOI+ Claude Gilmer;   Page 5     (V-977)



 city, 52 .Utah 540,175 Pat, 654 ~(1918);City of Fultoa v. Sims, 106
s;wI 1094(1908); ‘Kansas City v. School Dist..of Kansas City; 356
.h,fo. 364, 201 S.W.2d 930 (Tv47); .$red@c v. Board of Jsducation of
 City of St, Louis.     %o,         Ul S W Ld -9)           P d
 ~a004 LXS+ y. cifif     PasSZi&     166 k;.’ 7.’Iu4 Pac. b*
 and En Parte Means. 14 G.2d 254, 93 P.2d 105 (1939).

             In this last case. Ex Parte Means, the question was
%&ether a state employee (plumber),      working entirely on state
properly, may be punished for his failure to comply withthe muui-
cipal requirement’ of a license. In ordering petitioner discharged
fromcustody, the court said:

              “There can be no question concerning the power
       of .the state in its proprietary capacity to lay down the
       qualifications for its employees. It acts in an exciu-
       sive .fie&d (citations), and is not subject to thclegisla- ”
      tive enactments of subordinate goveramea~          agencies.
      For example. it has been held that a state has no power
      to re+ire     employees of the United States lo obtaina.
       license to operate an automobile. ‘Such a’requirement,’
       said.the Supreme Court of the United States,~ ‘does not
      me.rilytouch the Government servants remotely by a.
       generalmile of conduct; it lays hold of them in their
      specific al#empt to obey orders and requires qualifica-
      tions in .addition’to those that the Government has’pro-
      nouuced sufficient. It is the duty of the Department to
      -&by      persons. competent for their work and that ‘duty it
      mast be presumed has been performed.*           Johnson vi
      State of Maryiand,’ 154 U.S; 51.57. -.41S.Ct. 16,17, 65 L. ed.
      l26.,, Furthermore, considering the language of the par-
      ticular enactment now in ~questioa. it is a rule of statu-
       tory construction based upon sound public policy that the
      state is not bound by the provisions of a charter or ,ordi-~
      nance unless it isarientioaed specifically or by aecl&e+ry
     ‘iaqilication. ,-(Cita..&s)    Courtswill  not assume. a legis-
      Iative.intention on the part of ,a.city council to interfere.
      wit+ the acts of the general government.

            In 62 C.J.S. 319-320, it is stated thatz

             “Property of the states, is exempt from municipal
      regulation in the absence of waiveron the part of the
      state of its right to regulate its ownproperty; ,snd such
      waiver will not be presumed.      The municipality cannot
      regulate or control any property which the ~state:has
      authorized another body or power to control. Thus it
      has been held under some statutes that, where the legis-
      lature has placed the control of public schools in boards
414   Han, Claude Gilmer,   Page 6     (V-977)



           of education, .the municipality has no power ,to regu-       .
           late the tioastructioa of public school bnildings, but
           a@er Other statut&s creating school districts a
           school building within the municipal territory must
           comply with the municipal requirements.*

                    In 9 Am. Jur. 202, Buildings, Sec. 6, it is said:
                                 :
                    ‘The courts are not entirely agreed as to the
            applicability of municipal building regulations to
            buildings erected within the municipal limits by or ~.
            under the authority of the state, or by a county or
            other political subdivlsioa of the state. According
           ‘to well-reasoned cases, a county in erecting.build-
            ings within the limita of a municipal corporation
            must comply.with such proper building regulations
            as the municipality pursuant to its police power has
            imposed. A lilce ru&e has been held applicable to a
            s&o4 district organized by the &egislature, which
            includes. the municipal corpora.ioa or a part thereof
            viit&.iathe limits, +withsbarlinp     the school district
            is organized .madera gene@ law, and its trustees .
            are invested with powe,r to plan and build school-
            houses and control and manage a affairs of the
            school. However, a legislative grant of p&ice .pow-
            ei to a municipal corporation will not b-deemed a
            cession of the ~egis~ature’s. prerogative to gov.erp
            for. itself the *Istitutioas of the state which may be
           .located within such municipality, unless it may be
            clearly gathered from, the latter act that.such was
            the legislative intent. Other decisions take the posi-
            tion that municipal building regulations do net apply
            to school buildings erected within the municipal lim-
            its under l~egislative authority.,”

                  &t$ougb:home rule cities have broad leg&tory          pow-
      ers, these powers ar.e limited by the foilowing cons~tution~      and
      statutory provisions:
                   u . . . providing that no charter,.or any ordi-
            nance passed under said charter shall contain any
            prov&ion inconsistent *th the ~oastitution of the
            State.~or of .the general laws enacted by the Legi&a-,
            tare of tbis.State . e . ..c (Tex. Coast.. Ark II, Sec.,
            5.1
                  *No charter or aay~prwces          passed under
            said charter, shall contain any provision incon&-,,
            tedwith the ~Constitu~cp pr ge#era$ laws Of this
           state. .,.”     (Twr. Civ. ‘Stat. (Vernon, 1948) Art.
            U65).
  Ho&     Claude’Gilmer,   Page 7    (6-977)



   This limitation isn the power of home rule cities has been recog-
   nised by the, Texas courts in-the following cases: Prescott v;
   City of Bor’ger, !58’S.W.2d 578 (Tex. Ci< App; 1942, err. r&J;
   City of ~Houston:v. ‘State, 142 Tex. 190; 176 S.W.2d 928~(1943); City
   of Corpus Ghristi v; Texas Driverless Co., 187 S.,W.td 607 (E
   cav. App. 1945). mod. 144 T ex.      cr79.rs-w
                                                . .2d’484; %F*
   ment Co. v. ‘City of Houston. 185 S.‘W. 4$5 (Tex. Civ.
‘r      -      et v. Uv+ltle. LO S.W.2d 493 (Tex. Civ.‘App.  1929, err.
   dis&;    *;x parte N.ewberg, 140 Tex. C&m. tll. 143 S.W.2d 786
   (194!3).

              ‘In examining the statutes relating to the Board for
  Texas  State l-Joi:pitalb and Schools, we find the foilowing provi-
  sion in the a&creating     the board:

               : Sec.  2. ~‘Upon the effective date ofthis Act,
          the Gi%&npr shall appoint ths Board @rovided in
          this tit dnd ,the~Board sliall &&eed toorgariise
          as required by Section 5 of this Act and employ the
          J$xecutive Director and such other personnel neces-
          s*    4mqdrq out the provisions ‘of this Act. : “ec-
          tivc September 1.1949; the control and’manasemenf.
          of. a&aU’rfghts,    privileges, powers. and duties in-
                                              ; ‘designs and con-




                                              . .~.s.* (Empbasjs
                                        5s.      1949, ch:316,..p.


              Thus, to determine what powers over the desigri’and
  construction of state hospitals and special schools are now vest-
  ed in theBoardfor    Texas-fXateHoepituls  and Schools. we must
  ~amiue .the:atdute~ to+ee~-what powers, were possessed .by the
  Board of Control over such buildings. Ths pertinent provisions
  of %e ~&at&es are s.8 follows:

                 ‘T.hes&t~:Board     of Control shall have charges
           and eontrol.of.~aD public buildin s, grounds and~prop-
           er* of~the State; ‘. ; .* (Art. 685) 9

                   “The Board shall prepare plans and specifics-
           tions for improvement and repairs to public buildings
           or property of the state, &d shall superintend through
           its -diVi&in ‘of public buildings and grounds,, the con-
           struction of said ‘work when such .supervision ‘is not
           otherwise especially provided for by law.” (Art. 670).
Hon. Claude Gilmer,    Page 8     (v-977)



              Vhe Board shall inspect all plans ana spec-
      ifications for the public buildings and the additions
     .thereto to be constructed for the State before such
      plans and specifications are adopted. The Board
      may reject any and sll such plans and specifica-
      tions, ad it shall have full and final superiaten-
      dence over all buildings, structures or additions
      thereto that may be constructed for the State.’
      (Art. 671)

             ‘The Board s&U carefully examine and in-
      spect the material and workmanship, of e&h buiid-
      ing,’structure and addition thereto built for the
      State out of,brick or stone or substitutes’therefor,
      aa shaJl see that the same are 00?8tructea in ac-
      cordance with the contract plans and specificatio~us
      *emfor.    ,The work, workmanship and the material
      thereof shall be subject to the approval of the Board.‘*
      (Art. 672).

               “The Board shall give special att&tio.n to the
        effective maintenance of the State sewers and their
       connections~in the use of the public buildings, and
     ,..s-hall see that such sewerage and connect+ns. at aJl
        tunes -be kept in a sanitary condition. . . .-. (Art.
        674).

             “The Board may select a chief of ‘its c3iyisio.n
      of design. construction and maintenance who shall
      began architect of not less than five years expert:
      ience.nextpreceding his selection in the actual de-
      sign, superizitendency,snd construction of buildings.”
      (Art. 679).

             .“The Board may employ experts -ofmasonry,
       plumbing, electrical construction, landscape garden-
      .mg.~ano.such.otherexperts         as may’be.,necessary,
       as .assis.tants .to .the chief of this division.” (empha-
       sis supplied) (Art. 680).

              These statutes make it clear that there is~now vested
.in the Board for Texas State Hospitals and .Schools fulJ power aver
 the design, construction, and repair of buildings erected for the
ase of the st&e hospitals and speci* schools, including the par-
 ticular power sought here to be exercised by.the city. .This power
 having been .given to the board by &e legislatures an attempt by a
‘municipality. home rule or otherwise, to regulate the construction
‘of these buiidings .by ordina&es is inconsistent with tha above sta*
 tutes.giving this power to the board. Iusofar as such, o,r.dinances
 \
Hon. Claude Gilmer,   Page;9’     (V-977)



are .+consistent with .tha stptutes. .they ,are ,beyond the~power of the
municipz$ity~a~ therefOre unenforceable,as agaihstthebOard:or
the State,

             As support for a contrary view, we are cited to An act
to Promote the Public Health, Acts 1945: ch. 178, p. 234; Art. 4477-l
V.C.S. This Act prwides certain minimum standards of sanitation
and health protection measures.    It contains twenty-four sections
snd many subsections. Most of the, provisions are so worded as to
place on specific.c~as.ses of persons, some specific autp,to a0 or not
t0 a0 some specific thing. Several sections expressly relate t0
governmental agencies .snd.mupicipaI corporations.      The sections
to which we are cited do not specifically refer to the state. They
read as folloys:

             “Sec. 8. Any and all Public buildings hereafter
      constructed shall have ‘mcorporatsd therein all such
      heating, ventilation, plumbing, screening, and rat-.
      proofing features as may be.nrcessary to properly
      protect the health ‘and safety:of.the public.”

             -Sec. 23. All prOjisi,ons Of this Act are heri-
      by declar.ed IO constitute &mum       requirements of
      sanitation ana health protection within ,the State of
      Texas and shall in no way affect the authority of
      Home Rule Cities to enact more stringent ordinan-
      ces pertaining to the matters herein referred.+,
      and shallin no way affect tithe authqity  of Home Rule
      Cities to enact ordinances as granted $0 them under
      Article XI; Section 3 of the State COnMitution, and Ar-
      ticles 1175-76 of the.Retised Civil Statutes of 1925.”

              Even if the above provisions are-given the broadest ap-
plication permitted by theirterms, they are no grant of authority
to cities to -enforce .plumbiig codes against state agencies author-
ized by the legislature to construct buildings for the use of the
state. Se&ion. 8 is .a. general ‘provision which. ‘we ‘thinh. does ap-
ply to “all public buildings? including those of the State. Theef-
feet of such provision, however, is not to place authority in ‘one
governmental agency to regulate plumbing in buildings constructed
by another, but to place on.the proper public officers and agents,
state and municipalr the duty to incorporate in a+y..public~build-
ing constructed under. their supervision the necessary features to
protect the health and safety of the public.

            As we read Section 23, it makes pl+in tbe.power of
home rule cities to enact more stringent ordinances.    ‘We find in
such section no inten$. express or implied,. that such cities .may
regulate plumbing on state property.
41.8
       Ho+ Claude GiImer. Page 10        (V-977)



                    It is not our opinion that any state officer or ~agency
       may lawfully construct or equip a state building so as’to constir
       tute a public nuisance or a danger to pub+ health or safety..

                                 SUMMARY

                    The provisions of a city building code, set-
             ting up certain plumbing standards; are not ap-
             pIicable to regulate construction of buildings by
             the State on State property within the city limits.

                                         Yours very truly,




       BHRzb




                         V   FIRST ASSISTANT
                             ATTO?.NJ3YGENJZIUU
