                           The Attorney                 General of Texas
                                                  December      4,   1978
JOHN   L. HILL
Attorney General


supremecoun Building   Honorable C. C. Nolen, President                     Opinion No. H-12 6 8
P.O.BOX12548
Austin, TX. 78711      North Texas State University
512,475-2501           Texas College of Osteopathic   Medicine              Re: Expenditure         of     state
                       Denton, Texas 76203                                  appropriated     funds     for  land
                                                                            acquisition  for the Texas College
                                                                            of Osteopathic   Medicine.

                       Dear Mr. Nolen:

                              You have requested   our opinion as to whether certain appropriated
                       funds may be expended for the acquisition   of a building site for the Texas
                       College of Osteopathic  Medicine.

                              Section 105.81 of the Education Code, enacted by the 65th Legislature,
                       authorizes the Board of Regents of North Texas State University to “acquire
                       by purchase, donation, or otherwise” land for its new College of Osteopathic
                       Medicine.      The current   General Appropriations    Act appropriates    to the
                       college the sum of $15,524,714 for ‘new construction”         during fiscal 1978.
                       General Appropriations     Act, Acts 1977, 65th Leg., ch. 872, at 3072. YOU ask
                       whether such funds, or any other item of appropriation,     may be expended for
                       the acquisition of a building site.

                              No Texas case has considered            whether   an appropriation     for “new
                       construction”      will support   the purchase     of land, although      it has been
                       determined      that statutory   authority   to issue bonds for the erection         of a
                       courthouse and jail includes implied power to issue bonds for site acquisition.
                       Moon v.Allred, 277 S.W. 787 (Tex. Civ. App. - Eastland 1925, writ dism’d).
                       See Attorney General Opinions C-265 (1964); V-513 (1948). We note also that
                       the budget request submitted by the college to the 65th Legislature             included
                       an item for land acquisition       in its request for $33,998,990 for construction.
                        Texas     College     of   Osteopathic      Medicine,    Request    for     Legislative
                       Appropriations,     Fiscal Years Ending August 31, 1978, and 1979.

                              However,     we do not believe         the Legislature’s  use of the term
                       “construction”    in the appropriations     act in this instance   was intended   to
                       include site acquisition   costs.     In other provisions of the act, it expressly
                       authorized     the use of construction     funds or other funds to purchase     real




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Honorable   C. C. Nolen      -    Page 2    (~-12681



property.  -See Acts 1977, 65th Leg., ch. 872, at 2848 (State         Building   Commission);
2870 (Department   of Corrections).

       We believe the Legislature      intended to use “construction”     in the sense it has
been used by courts of other states, to refer to the erection           of improvements     on
land. Demory Bros., Inc. v. Board of Public Works of Maryland, 329 A.2d 674, 679
(Md. 1974) (site acquisition    may not be financed from “construction         costs”); White
v. CTbot Corp., 194 So.2d 499, 501 (Miss. 1967); State v. U.S. Land Co., 412 P.2d 736,
 739 Arm. App. 1966). In its “ordinary and accepted        meaning,” the word “signifies
actual activity in erecting or putting up a building.”       First National Bank & Trust
CO. V. City of Rockford,     361 N.E.2d 832, 841 (Ill. App. 1977). See also Prudential
Insurance Co. v. Executive      Estates, Inc., 369 N.E.2d 1117, 1126--App.
Pollock v. Tiano, 61 Cal. Rptr. 235, 237 (Cal. App. 1967). In Windlow v. Wagner, 329
N.E.2d 911 (Ill. App. 1975). the court said that “construction      costs” does not include
the purchase pride of land. & at 915-16. But see State ex rel. McMaster v. District
E,       260 P. 134, 137-38 (Mont. 1927) (purchase of highway right-of-way         included in
“construction”).

        Based on these authorities    and the legislative    history, we do not believe land
acquisition   may be financed out of the item for new construction.               Although the
college originally included an item for land acquisition            costs in its request for a
construction    appropriation,    the Legislature      appropriated      less than half their
requested    amount.     Thus, we cannot assume that the amount requested               for land
acquisition   was included in the final appropriation.        The fiscal note to House Bill
1193, which amended section 105.81 of the Education               Code, indicated     that local
funds had been promised for the acquisition of land by the college.

       Neither does any other item of appropriation      for the current biennium appear
to be relevant to the purchase of land by the College of Osteopathic         Medicine.   A
rider to the appropriation    for the college re-appropriates    “for the same purposes”
any ‘unexpended     balances in the appropriations      Items 1 and 2” in the 1975-77
General Appropriations     Act. General Appropriations      Act, Acts 1977, 65th Leg., ch.
817, at 3072. Those items provide:

             1.    All educational   and general expenses, including        plant
                   operation, necessary rent, planning and architect        fees

             2.    Construction

General Appropriations      Act, Acts 1975, 64th Leg., ch. 743, at 2777. However, at
the time these appropriations      were made, article 105.72 of the Education         Code
required that a site for the college be provided without cost to the State of Texas.
 Acts 1975, 64th Leg., ch. 285, 5 1 at 285, amended.      Acts 1977, 65th Leg., ch. 822, S
2, at 2071. Therefore,    these items from the 1975 appropriations      act could not have
included site acquisition costs.    Accordingly,   it is our opinion that the Legislature
has not appropriated    any funds to the Texas College of Osteopathic       Medicine which
may be expended for the acquisition       of a building site.    We note finally that the




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Honorable   C. C. Nolen   -   Page 3        (H-1268)



college is subject to section 61.058(5) of the Education Code, which requires either
the Legislature   or the College Coordinating   Board to approve a proposed purchase
of real property.    See Educ. Code S 105.79 (medical school subject to supervision of
Coordinating    Boardin accordance  with chapter 61).

                                   SUMMARY

            The Legislature has not appropriated  any funds to the Texas
            College of Osteopathic  Medicine for the current biennium
            which may be expended for the acquisition of a building site.




                                               Attorney   General   of Texas

APPROVED:




DAVID M. KENDALL, First Assistant



 Wd
C. ROBERT HEATH, Chairman
Opinion Committee




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