                                         January 24,200O



The Honorable Russell W. Malm                     Opinion No. JC-0170
Midland County Attorney
200 West Wall Street, Suite 104                   Re: Whether an appropriation of general revenue
Midland. Texas 79701                              funds to The University of Texas of the Permian
                                                  Basin for the construction of a museum building
                                                  is precluded by article VII, section 18(i) of the
                                                  Texas Constitution    (RQ-0114-JC)


Dear Mr. Malm:

        You ask whether an appropriation of general revenue funds to The University of Texas of
the Permian Basin (“UTPB”) for the construction of a museum building is precluded by article VII,
section 18(i) of the Texas Constitution. We conclude that it is. Section 18 authorizes The University
ofTexas System Board of Regents to issue bonds and notes to finance construction ofbuildings and
other permanent improvements at UTPB and other University ofTexas System campuses. See TEX.
CONST. art. VII, 9 18(b). Subsection (i) of section 18 provides that The University of Texas System
may not receive any general revenue funds for such construction projects, with two limited
exceptions. See id. 5 18(i). Pursuant to one of those exceptions, the legislature may appropriate
general revenue funds for this purpose if it does so “by two-thirds vote of each house [I, in cases of
demonstrated need, which need must be clearly expressed in the body of the act.” Id. 5 18(i)(2).
Because the act appropriating funds for construction ofthe UTPB museum building does not express
a need for the project as required by the exception to the article VII, section 18(i) limitation on
appropriations, the appropriation is precluded by that limitation. Assuming the appropriation is valid
 and the building is constructed, you also ask about the legal standard for determining the rent a
private museum must pay to use it. Given our answer to your first question, we do not address your
 second question.

        Your questions arise from an appropriation in the 1999 General Appropriations Act (the
“Appropriations Act” or “House Bill 1”) to UTPB of $1.25 million in fiscal years 2000 and 2001
as “special item support” for a “presidential museum.”   House Bill 1, Act of May 26, 1999,76th
Leg., R.S., ch. 1589,111-78,1999 Tex. Gen. Laws 5446,5746. This appears to be an appropriation
of general revenue funds. A rider following the appropriation to UTPB states as follows: “Funds
appropriated above for the Presidential Museum are for the purpose of constructing a building to
house the Presidential Museum on a leased portion of the University of Texas of the Permian Basin
Campus. Funding for operations ofthe museum shall remain the responsibility ofthe Permian Basin
The Honorable Russell W. Mahn       - Page 2     (JC-0170)




Museum Board.” Id. 111-79, at 5747. You ask whether this appropriation       violates section 18(i) of
article VII of the Texas Constitution.

         Before examining section 18 in detail, we begin with a brief explanation of the historical
background. The voters approved the amendment adding both sections 17 and 18 to article VII of
the Texas Constitution in November, 1984. See Tex. H.R.J. Res. 19, 68th Leg., R.S., 1983 Tex.
Gen. Laws 6701. Section 17 established the higher education assistance fund, providing a funding
mechanism for institutions of higher education that are not included in the University of Texas or
Texas A&M University systems. See id. at 6703. Section 18, the focus of your inquiry, restructured
the Permanent University Fund to expand the number of University of Texas and Texas A&M
University institutions eligible to use the Permanent University Fund for financing purposes. See
id. at 6707. With respect to section 18, the amendment was intended to “increase bonding authority
for both the UT and A&M systems” and to “expand the purposes for which bonds may be issued at
the PUF schools.” HOUSECOMM.ONHIGHERBDUCATION,BILLANALYSIS,Tex.H.R.J. Res. 19,68th
Leg., R.S., at 3 (1983).

          Significantly, the amendment also was intended to limit schools’ access to general revenues,
see id. (“the schools could not receive any other general-revenue appropriations for any of the
purposes designated in the amendment, except for the purchase of capital equipment, library books,
or library materials”), and to shit? higher education funding decisions away from the legislature, see
id. at 5 (“CSHJR 19 would take college construction funding decisions out of the political arena”).
Supporters of the amendment argued that this change would make higher education funding more
equitable and more efficient. See id. (“When schools rely on legislative appropriations for their
building needs, the amount each school receives depends more on the clout of legislators from its
district, and on the political pull of its governing board, than on the merits of the request.     The
proposed amendment would put decisions about construction, repair, etc., in the hands of those most
qualified to make them - the members of the governing board of each college, No group is better
acquainted with a college’s real needs.“); see also TEXAS LEGISLATIVECOUNCIL, INFORMA~ON
REPORT No. 84-1, ANALYSES OF PROPOSED CONSTITUTIONALAMENDMENTS, at 14 (1984)
(“Constitutionally dedicated funds, allocated according to an equitable formula, provide for orderly,
planned growth based on anticipated and actual need. The universities are not typical state agencies
and are ill-suited to lobby for appropriations in competition with other state agencies, The few
universities that have political ‘muscle’ will receive a disproportionate share of the funds allocated
through the appropriations process.“) (summary of arguments for amendment).

          Section 18 authorizes the boards of regents of The Texas A&M University System and The
University of Texas System (the “systems”) to issue bonds and notes to finance construction of
buildings and other permanent improvements for their component institutions, including UTPB. See
TEX.CONST. art. VII, 5 18(a), (b). The amount ofbonds and notes each system is authorized to issue
is tied to a percentage of the value of the Permanent University Fund, a preexisting fund established
by the constitution to benefit the two systems. See id.; see also id. 5 10 (establishing University of
The Honorable Russell W. Malm - Page 3            (X-0170)




Texas and Texas A&M University); $5 11, lla, llb (establishing and governing Permanent
University Fund). The Texas A&M University System is authorized to pledge all or any part of its
one-third interest in the available university fund, see id. 5 18(a), which consists of dividends,
interest, and other income from the Permanent University Fund, see id. 5 1S(e) (defining “available
university fund”); see also id. 5 lla (directing interest, dividends, and other income from the
Permanent University Fund to appropriation “by the operation of [article VII, section 181 for the
payment of principal and interest on bonds or notes issued thereunder”). The University of Texas
System is authorized to pledge all or any part of its two-thirds interest in the available university
fund. See id. 4 18(b).

        Subsections (a) and (b) authorize the systems to issue bonds and notes for the system
administrations and component institutions for the following purposes:

               acquiring land either with or without permanent improvements,
               constructing    and equipping    buildings    or other permanent
               improvements, major repair and rehabilitation of buildings and other
               permanent improvements, acquiring capital equipment and library
               books and library materials, and refunding bonds or notes issued
               under this section or prior law.

Id. 5 1S(a), (b). Subsection (d) of section 18 provides that the proceeds of bonds or notes issued
under subsections   (a) or (b) may not be used to construct, equip, or repair auxiliary enterprises.

         WeunderstandfrommaterialsubmittedbyTheUniversityofTexasSystem           thattheproposed
museum building would not be an auxiliary enterprise within the meaning of subsection (d). See
Memorandum from Florence P. Mayne, Attorney, Office of the General Counsel, The University
of Texas System, to Mr. Ray Farabee, Vice Chancellor and General Counsel, The University of
Texas System, at 4-6 (Nov. 18, 1999) (on file with Opinion Committee) [hereinafter “UT General
Counsel Memo”]. We also understand that the museum building would be the property of UTPB
and would not be owned by the State of Texas separate and apart from UTPB, as are some museums
located on university campuses. See id. at 1-2; see also‘RX. EDUC. CODE ANN. 5 5 1.905 (Vernon
1996) (providing for governance of state-owned museum buildings located on campuses of senior
colleges and authorizing senior college governing boards to administer expenditure of state funds
appropriated for construction and operation of such museums). Cj: Tex. Att’y Gen. Op. No. C-395
(1965) (holding that legislative appropriation of general revenue funds to West Texas State
University at Canyon for construction of Panhandle-Plains Museum did not violate former section
 17 of article VII limitation on appropriations because museum was state-owned and constituted an
entity separate and apart from the university).        Thus, the museum building is a permanent
improvement eligible for financing under subsection (b) of section 18. See UT General Counsel
Memo at 4-6.
The Honorable Russell W. Malm - Page 4            (JC-0170)




       Subsection (i) of section 18 limits the authority of the legislature to appropriate general
revenue funds for land acquisitions and permanent improvements that are eligible for financing
under subsection (b):

                       The state systems and institutions of higher education
               designated in this section may not receive any funds from the general
               revenue of the state for acquiring land with or without permanent
               improvements,     for constructing or equipping buildings or other
               permanent improvements, or for major repair and rehabilitation of
               buildings or other permanent improvements.

TEX. CONST. art. VII, 5 18(i). (Appropriations for capital equipment, library books, and library
materials are not included within this limitation.) Subsection (i) is followed by two exceptions that
permit the legislature to appropriate general revenue funds for subsection (b) projects in two types
of extraordinary circumstances:

                       (1) in the case of fire or natural disaster the legislature may
               appropriate thorn the general revenue an amount sufficient to replace
               the uninsured loss of any building or other permanent improvement;
               and

                       (2) the legislature, by two-thirds vote of each house, may, in’
               cases of demonstrated need, which need must be clearly expressed in
               the body of the act, appropriate general revenue funds for acquiring
               land with or without permanent improvements, for constructing or
               equipping buildings or other permanent improvements, or for major
               repair and rehabilitation     of buildings  or other permanent
               improvements.

Id. (emphasis added). Subsection (i)(l) permits the legislature to appropriate general revenue funds
to replace the uninsured loss of a building or other permanent improvement.         Subsection (i)(2)
permits an appropriation of general revenue funds for more general purposes only if the legislature
satisfies two special requirements: Each house must pass the appropriation by a two-thirds majority
vote, and the legislature must include in the act of appropriation an express statement of need. The
purpose of section 18(i)(2) may have been to separate these extraordinary appropriations from
general appropriations acts, which are not subject to the same requirements.

         Because the museum project is a permanent improvement eligible for financing under
subsection (b), it is within the subsection(i) limitation on legislative appropriations. It has not been
suggested that the museum building falls within the first exception to subsection (i) for replacing an
uninsured loss due to fire or natural disaster. Thus, we must consider only whether the appropriation
falls within the second exception.
The Honorable Russell W. Malm - Page 5             (X-0170)




         Your query suggests that the museum building appropriation does not satisfy the subsection
(i)(2) exception to the subsection (i) limitation on appropriations of general revenue funds because
House Bill 1, which passed the Senate on a voice vote, does not satisfy the two-thirds vote
requirement and because the appropriation did not contain “an expression of demonstrated need.”
Letter from Honorable Russell W. Malm, Midland County Attorney, to Honorable John Comyn,
Texas Attorney General, at 2 (Sept. 23, 1999) (on file with Opinion Committee) [hereinafter
“Request Letter”]. We discuss the two-thirds vote and need requirements separately.

       The subsection (i)(2) exception requires a two-thirds vote of each house. The University of
Texas System has provided the following factual information:

               [T]he House Journal of May 26,1999, reports that the House passed
               the General Appropriations Act on that day by a vote of 142 yeas, 1
               nay and 2 present and not voting. The Senate Journal of May 27,
                1999, reports that the General Appropriations Act was adopted by a
               viva vote vote, with Senator Barrientos asking to be recorded as
               voting “nay.”

UT General Counsel Memo at 8. Thus, the concern is whether the voice vote in the Senate satisfies
the subsection (i)(2) two-thirds vote requirement.

          Courts in this state are loath to invalidate legislative enactments on the basis that the
legislature failed to enact them according to constitutionally-mandated     procedures. This reluctance
manifests itselfin the enrolled bill rule. “The enrolled bill rule has been repeatedly stated to be that
a duly authenticated, approved, and enrolled statute imports absolute verity and is conclusive that
an act was passed in every respect according to constitutional requirements.”              Beckendoef v.
Harris-Galveston Coastal Subsidence Dist., 558 S.W.2d 15, 78 (Tex. Civ. App.-Houston [14th
Dist.] 1977), writ ref’d n.r.e. per curiam, 563 S.W.2d 239, 240 (Tex. 1978) (citing Jackson v.
 WaIker, 49 S.W.2d 693 (1932); Ellison v. Texas Liquor Control Bd., 154 S.W.2d 322 (Tex. Civ.
App.Galveston       1941, writ ref d)). As the Texas Supreme Court has explained, under the rule, “the
 ‘enrolled statute,’ as authenticated by the presiding officers of each house       is precisely the same
as and a ‘conclusive record’ of the statute that was enacted by the legislators. Under the strict
enrolled bill rule, the House and Senate Journals are not more reliable records of what occurred than
the enrolled bill, and no extrinsic evidence may be considered to contradict the enrolled version of
the bill.” Association of Tex. Prof I Educators Y. Kirby, 788 S.W.2d 827,829 (Tex. 1990) (citations
omitted). Although the Texas Supreme Court recently recognized a narrow exception to the rule “to
 avoid elevating clerical error over constitutional law, ” id. at 830, the court does not appear to have
 abandoned the version of the rule that generally treats the enrolled bill as conclusive evidence of an
 enactment’s validity in favor of the more modem version of the rule that accords to the enrolled bill
 aprima facie presumption ofvalidity but permits attack by certain extrinsic evidence, see id. at 829-
30.
The Honorable Russell W. Malm - Page 6             (JC-0170)




          The enrolled bill rule is essentially evidentiary in nature, precluding the courts from
scrutinizing extrinsic evidence to impeach the validity of a legislative enactment authenticated by
officers of a co-equal branch of government. See id.; see also Williams v. Taylor, 19 S.W. 156,157
(Tex. 1892) (stating that courts “should ponder well before undertaking to revise the proceedings
of either house of the legislature, and to declare its action void merely on account of its failure to
observe some rule ofprocedure prescribed in the constitution” and holding that constitution does not
repeal common-law enrolled bill rule). Thus, the rule has been applied to reject constitutional
challenges to legislation that would require the court to examine extrinsic evidence regarding the
legislative process, such as allegations that the legislature failed to report a bill out of committee
within three days of adjournment as required by article III, section 32, see Williams v. Taylor, 19
S.W. at 156-57; that the legislature failed to provide constitutionally required notice of proposed
legislation, see, e.g., Beckendorff, 558 S.W.2d at 78 (applying enrolled bill rule to reject challenge
that legislature failed to provide copies of legislation creating conservation district as required by
article XVI, section 59(e)); Moore v. Edna Hosp. Dist., 449 S.W.2d 508,514-15 (Tex. Civ. App.-
Corpus Christi 1969, writ ref d n.r.e.) (applying enrolled bill rule to reject challenge that legislature
failed to provide sufficient notice of legislation creating hospital district as required by article IX,
section 9); or that a bill was not within the governor’s special session call, see City of Houston v.
Allred, 71 S.W.2d 251 (Tex. 1934); Jackson v. Walker, 49 S.W.2d 693 (Tex. 1932). On the other
hand, the rule has not been applied to constitutional challenges to legislative action that may be
assessed from the face of an enrolled bill, such as the contention that a bill violates the unity in
subject requirement, see TEX.CONST. art. III, 5 35(a) (“No bill, (except general appropriation bills,
which may embrace the various subjects and accounts, for and on account of which moneys are
appropriated) shall contain more than one subject.“); Jessen Assocs. v. BuZIock, 53 1 S.W.2d 593
(Tex. 1975) (addressing merits of claim that bill addressed more than one subject), or lacks the
signature of the presiding officer of either house, see TEX.CONST. art. III, 5 38; Exparte Winslow,
164 S.W.2d 682, 684 (Tex. Crim. App. 1942); Holman v. Pabst, 27 S.W.2d 340 (Tex. Civ.
App.-Galveston     1930, writ ref d) (’
                                      invalidating statute that lacked signature of Speaker of the House
of Representatives).

         It is a close question whether a court would apply the enrolled bill rule to conclude that the
authentication of House Bill 1 by the presiding officer of the Senate is conclusive evidence that the
appropriation at issue passed the Senate by the two-thirds vote required by section 18(i)(2) of article
VII. We have found no judicial or attorney general opinion construing the section 18(i)(2) voting
requirement. Courts in the past have looked to legislative journals to determine if a bill enacted with
an emergency clause received a two-thirds vote for immediate effect as required by section 39 of
article III. See, e.g., Missouri, K. & T. Ry. Co. v. McGlamory, 41 S.W. 466 (Tex. 1897). Examining
the journals to determine whether a bill has carried a sufficient majority to be put into immediate
effect is distinguishable, however, because in the case of the section 39 supermajority requirement
the evidence in the journals affects only the bill’s effective date and has no implications for the
ultimate validity of the bill. See Williams v. Taylor, 19 S.W. at 158 (noting in dicta that it was
appropriate for court in another case to look to journals to determine effective date of a bill because
“the question was not whether the bill had passed, but whether it had been carried by a sufficient
The Honorable Russell W. Mahn       - Page 7      (X-0170)




majority to put it into immediate effect. The signatures of the presiding officer           attested the
passage of the act, but did not determine that it had taken effect from the date of its passage. There
being no method of attesting the fact that a bill which purports to take effect from its passage has
received the required two-thirds majority, we deemed the journals the best evidence upon the
question, and looked to them for that purpose only”). Furthermore, unlike section 39 of article III,
section 18(i)(2) does not expressly require that the two-thirds vote be recorded in the House and
Senate journals. Compare TEX. CONST. art. VII, 5 18(i)(2) (“by two-thirds vote of each house”),
with id. art. III, 5 39 (bill may take effect immediately on vote oftwo-thirds ofeach house, “said vote
to be taken by yeas and nays, and entered upon the journals”); see also id. art. III, 5 32 (three
readings requirement may be suspended by four-fifths vote “the yeas and nays being taken on the
question of suspension, and entered upon the journals”), art. VII, $5(b) (providing that bonds may
exceed limitation if “authorized by a two-thirds record vote of both houses of the legislature”), art.
IX, 3 1 (authorizing creation of counties “by a two-thirds vote of each House of the Legislature,
taken by yeas and nays and entered on the journals”).

         We are not aware of any Texas case addressing the enrolled bill rule’s application to a similar
supermajority voting requirement.      The case law in other enrolled-bill-rule jurisdictions is not
conclusive. Seegenerally 1 NORMANJ.SINGER,SUTHERLANDSTATLJTORYCONSTRUCTION§ 14.04
(5th ed. 1994) (“In many states the conclusive presumption rule bars court attack on a statute which
failed to meet a special voting requirement on passage. Some states which follow that rule have
recognized an exception to it in the case of constitutionally     mandatory voting requirements.“).
Moreover, the circumstances       here are particularly unusual because the supermajority           vote
requirement at issue applies to a small item in a larger bill that is not subject to the supermajority
vote requirement.

         We believe there is an argument for applying the enrolled bill rule to the article 18(i)(2)
voting requirement and for treating the authentication of House Bill 1 by the presiding officer of the
Senate as conclusive evidence that the appropriation at issue passed the Senate by the required two-
thirds vote. If this presumption of validity were applied, neither a court nor this office would look
behind the authenticated statute to scrutinize the legislative record, such as the Senate Journal, to
determine whether the legislature did in fact enact the appropriation according to constitutional
requirements.    However, as we explain below, this office finds no basis on which to defer to the
legislature with respect to the section 18(i)(2) express need requirement.

         Section 18(i)(2) also requires the museum building appropriation to satisfy a “need’
requirement. Again, to fall within the subsection (i)(2) exception to the subsection (i) limitation on
appropriations,    the museum building appropriation must satisfy not only the two-thirds vote
requirement, but must also be made in a case “of demonstrated need, which need must be clearly
expressed in the body of the act.” TEX. CONST. art. VII, 5 18(i)(2). We construe this language to
require that the institution of higher education seeking an extraordinary appropriation demonstrate
to the legislature a need for the appropriation and the legislature clearly express that need in the body
of the act.
The Honorable Russell W. Malm - Page 8            (JC-0170)




         While we believe that a court could apply the enrolled bill rule to reject a challenge to the
appropriation based on the two-thirds vote requirement, we do not think that a court would apply the
rule to reject a challenge based on the need requirement. As the case law indicates, the enrolled bill
rule restrains a court from looking at extrinsic evidence to determine a statute’s validity. See cases
cited sup-a pp. 5-6. A court would not question the legislature’s factual assessment that the need
for an extraordinary appropriation has been demonstrated, an inquiry that would require the
examination of extrinsic evidence.       However, a court need not look to extrinsic evidence to
determine whether the legislature has satisfied the requirement that the need for the appropriation
must be “clearly expressed in the body of the act.” TEX. CONST. art. VII, § 18(i)(2).

         It has been suggested that the fact that the legislature appropriated funds to UTPB to
construct the museum building indicates that the legislature determined that the appropriation was
necessary. Although this must be the case, we do not believe that the mere fact of appropriation may
satisfy the constitutional requirement. The constitution requires that the act of appropriation contain
an express statement ofneed. The only statement in the Appropriations Act regarding the museum
building appropriation is the rider to the UTPB appropriation: “Funds appropriated above for the
Presidential Museum are for the purpose of constructing a building to house the Presidential
Museum on a leased portion of the University of Texas of the Permian Basin campus. Funding for
operations ofthe museum shall remain the responsibility ofthe Permian Basin Museum Board.” Act
ofMay 26,1999,76thLeg.,        R.S., ch. 1589,111-79, 1999 Tex. Sess. Law Serv. 5446, 5747. Neither
the rider or any other provision in the Appropriations Act addresses the need for the UTPB museum
building appropriation.    Given the complete absence of any statement regarding the need for the
appropriation, we believe a court would have no choice but to conclude that the appropriation does
not satisfy the section 18(i)(2) exception allowing an appropriation of general revenue for a
demonstrated need that is “clearly expressed in the body of the act.”

         Had the legislature provided any statement regarding the need for the appropriation in the
act, neither a court nor this office would look behind it. See, e.g., Day Land & Cattle Co. v. State,
4 S.W. 865, 873 (Tex. 1887) (legislature is sole judge of whether emergency exists to justify
immediate passage of a bill and its finding cannot be questioned by a court). However, we cannot
conclude that an appropriation of general revenue funds to an institution of higher education - an
appropriation for a project eligible for financing under article VII, section 18(b) - that contains
absolutely no expression of need satisfies the subsection (i)(2) exception to the general subsection
(i) limitation on general revenue appropriations.        Accordingly, we must conclude that the
appropriation does not fall within the subsection (i)(2) exception and is precluded by subsection (i).

         Given our conclusion, we do not address the authority of a state institution of higher
education to construct a museum building to lease to a private entity or the legal standard for any
lease arrangement.    See Request Letter at 1 (“If the appropriation is valid and the university
constructs the building, what legal standard applies to determining the amount of rent the
presidential museum must pay to UTPB for the lease of the building?‘).
The Honorable Russell W. Malm - Page 9          (X-0170)




                                      SUMMARY

                        The University of Texas System component institutions and
              other institutions listed in article VII, section 18 of the Texas
              Constitution may not receive any funds from the general revenue of
              the state for construction of permanent improvements.       See TEX.
              CONST. art. VII, 5 18(a), (b), (i). However, the legislature may
              appropriate general revenue funds for this purpose if it does so “by
              two-thirds vote of each house [I, in cases of demonstrated need,
              which need must be clearly expressed in the body of the act.” Id. 5
               18(i)(2). Because the act appropriating general revenue funds for the
              construction of a museum building on the campus of The University
              of Texas of the Permian Basin does not express a need for the project,
              the appropriation is precluded by the article VII, section 18(i)
              limitation on appropriations.




                                             JOHN     CORNYN
                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
