           TEE       ATIWRNEY    GENERAL
                        OF TEXAS
                     Auwrl~.     -rExAn     78711




                               September 28, 1972


Hon. J. C. Dingwall                       Opinion No. M-1228
State Highway Engineer
Texas Highway Department                  Re:       Authority of the State
Austin, Texas 78701                                 Bighway~Commission to
                                                    proceed with their
                                                    building project for
                                                    the construction of a
                                                    new State,Beadquarters
Dear Mr. Dingwall:                                  Building.
         Your request for an opinion asks the following question:
         "It is requested that your office review
    the course of events pertaining to this pro-
    posed project as outlined herein and advise
    if this Department is legally in a position
    to proceed with the construction as proposed
    on Block 124 in the,City of Austin."
          The sequence of events which has transpired is summarized
in your request as follows:
         "1. State Highway Conmission Minute Order
    No. 62807 dated October 1, 1969, authorized and
    directed the State Highway Engineer to proceed
    with thenplans for the construction qf 'anew
    building on the site bounded by lOth and 11th
    Streets, Congress Avenue, and Colorado Streets,
    which is Block 124 in the City of Austin. ,(See
    Exhibit "A")
         "2. Highway Coxnzaission Munite Order Nos.
    62805 and 62806 of October 1, 1969, authorized
    the purchase oft the south half of Block 124
    bounded by 10th and 11th Streets and Congress
    Avenue and Colorado Street in the City of
    Austin. (See Exhibit "B")
         "In negotiating for the acquisition au-
    thorized by Coamieeion-Minute,Order No. 6~2806,
                                   -6015-
Hon. J. C. Dingwall, page 2      (M-1226)


    an impasse was reached with the owners of certain
    parcels of land as to the fair cash market value
    thereof and damages, if any. Eminent domain pro-
    ceedings were then authorized and directed by
    Commission Minute Order No. 63555 dated May. 7,
    1970. (See Exhibit "C")
         "An equitable settlement has subsequently
    been reached with the owner of Parcel 2 shown
    in Exhibit "C" and a deed record in the name of
    the State is now on file.
         “3. By letter of October 20, 1969, approval
    was granted by Governor Smith for the Highway
    Department to construct a State Highway Depart-
    ment Headquarters Building in excess of 10,000
    square feet of floor space in accordance with
    requirements of the appropriation bill. (See
    Exhibit "D")
         “4. The preliminary plans of the proposed
    building were reviewed and approved by the
    Building Commission on December 3, 1969. Approval
    of the transfer of the north half of Block 124
    from the Building Commission to the Highway
    Department in exchange for the northeast one-
    quarter of Block 123 (present location) including
    building and improvements thereon was also con-
    firmed at this meeting. (See Exhibit "E")
         "5. The final design of the new building
    was approved and accepted by the Building Com-
    mission on December 3, 1970. (See Exhibit "F")
         “6. H.C.R. 180 of the 62nd Legislature
    directed the State Highway Department to reeval-
    uate its plans to build on this site. During
    this reevaluation the Department was advised
    by the Antiquities Committee that it would be
    necessary to perform an archeological investi-
    gation. On November 17, 1971, a public hearing
    was held as provided by law by the Antiquities
    Committee for issuance of permit for archeological
    investigation. There was no opposition and on
    November 23, 1971, the permit was granted. Ex-
    cept for the final report which is presently


                              -6016-
Hon. J. C. Dingwall, page 3      (M-1228)    :       ,'



     in progress, the investig.ationhas been satis-
     factorily.completed.
         "7. On January-,1,3r
                            .~1972,.,in
                                      accordance
    with the.provisions.of Artr .5421q, V.C.S., in-'
    eluding Proper Notice and Advertising, a public
    hearing was held by:this Department to receive
    the views and comments of all interested agencies,
    groups, or individuals regarding the use of this
    land. Several people appeared and spoke 'for.the
    proposed project. No.one appeared in opposition.
          "Based on the findings.of the reevaluation
    and restudy,,,thedecision of.the Highway Corn-- :~ ::.'
    mission was to proceed according to plan. During~'~'~
     the 3rd Called Session .of,the 62nd Legislature, .:    "
    .coaaaentson the floor were made which sight shave .~~.~
    hen interpreted as questioning ,the right ,of:-. :-: '.
     the ~Departmentto construct a Headquarters
     Building.
          ~"Senate Bill~l of.the,.3rdCalled Session     '..
     of the,62nd Legislature appxopriated $1.5 mill~ian~~
                                                        :~
     for the Parks-and Wildlife Department to -purchase.,.,
     this property:for a,park. This item"was vetoed,:" :
     by the Governor..
          "Collateral information also included herein,
     for ~your use and ~ready reference in this.matter.,e
     is an extract of,the Minutes of December 16,and
     17, 1970, of the Speakers Special Committee on
    .~.Historical.
                 Preservation. : lSeeMibit."G"f"i,-
                   ,,,   -' ~~'- .;            _    TIC_:
      _&'.
         1 We must first determine~the'.legaleffectof 'the'~
Governor's veto on the item of appropriation referred to in
your request.
           Senate Bill l,.Acts of the'62nd~Legislature,,3rd Called
Session, 1972, by general appropriation act for.the fiseal~year
beginning September 1, 1972, has made certain appropriations to
~the Parksand Wildlife Department in item.21 of the.appropriation
to that department. (p.,111-108, 111).
          The veto message of the Governor vetoed:




                               -6017-
Hon. J. C. Dingwall, page 4      (M-1228)


          "Item 21-- That portion of Item 21 reading:
                     t. . . NTE $1,500,000 for acquis-
                     ition from the Highway Department
                     of land bounded by.Congress Avenue,
                     Colorado Street, 10th Street and
                     11th Street in the City of Austin,
                     Texas, for development of said land
                     as a State garden park. . .' $1,500,000"
          The authority of the Governor~to veto items of appropria-
tion is set out in Article IV, Section 14 of the Constitution of
Texas. In exercising that veto power, the Governor is exercising
a legislative and not an executive or judicial function. He cannot
disapprove of certain portions of a bill which are not items of
appropriation and approve the remainder. Fulmore v. Lane, 104 Tex.
499, 140 S.W. 405 (1911); Attorney General's Opinion V-1196 (1951).
Therefore if the vetoed language quoted above constitutes an ~item
of appropriation, the Governor acted within his constitutional veto
power granted in Article IG, Section 14, Texas Constitution.
          It is our opinion that the language vetoed is an item
of appropriation subject to the Governor's veto for the reason that
it appropriates in and of itself $1,500,000 to the Parks and Wild-
life Department for the acquisition of certain property for the
development of said land as a "state garden park." While this
language is contained with other language in Item 21 of the ap-
propriation to the Parks and Wildlife Department, it is our opinion
that such language in and of itself constitutes an item of appropria-
tion and therefore the veto of such item does not affect the remainder
of the appropriation contained in Item 21.
          Having concluded that the above quoted item has been
constitutionally vetoed by the Governor , we will now turn to the
question of the authority of the State Highway Commission to pro-
ceed with their building project.
          Construction projects for the State are controlled by
the provisions of Article 678f, Vernon's Civil Statutes, the State
Building Construction Administration Act.
          The file attached with your request reveals that the pro-
visions of Article 678f are being complied with in connection with
the project under consideration.




                              -6018-
Hon. J. C. Dingwall, page 5     (M-1228)


          Prior to the creation of the Board of Control, a portion
of the land in question was in the custody of the Superintendent
of Public Buildings and Grounds. As his successor in office the
custody of the land has been in the Board of Control until the
adoption of Section 51b of Article III, Texas Constitution, creating
the State Building Commission. Section 7 of Article 678m, Vernon's
Civil Statutes, the enabling act for the provisions of Article III,
Section Sib, places control of real property for building sites in
the State Building Commission until final construction is completed
and the buildings are occupied by the State agencies to be housed
therein. Therefore the custody and control of the property in ques-
tion has been in the State Building Commission since 1955 (with the
exception of land purchased by the State Highway Commission--which
land is in custody of the State Highway Commission).
          Under the provisions of Article 678f, the orderly planning
of buildings constructed by the State is placed in the State Build-
ing Commission and the State Building Commission is the agency of
the State charged with the duty of carrying out State building
construction with certain exceptions provided in Section 3. Section
3, subdivision (A) specifically excepts "All projects constructed
by and for the Texas Highway Commission."
          It is our opinion that it is not the duty of the Building
Commission to construct the building in view of the.exception con-
tained in Section 3 of Article 678f, Vernon's Civil Statutes. This
duty rests with the State Highway Commission.
          In Attorney General's Opinion S-105 (1953), it was held:
         "Since the time the Highway Department was
    created, the Commission has interpreted the above
    legislative acts as giving it the authority to
    expend millions of dollars in the construction of
    many buildings throughout the State,to office its
    personnel and to provide storage for its equipment
    for the furtherance of public road construction and
    the establishment of a system of State Highways.
    It was strengthened in such interpretation by an
    opinion of this office dated August 22, 1928 from
    H. Grady Chandler, Assistant Attorney General, to
    Hon. Gibb Gilchrist, State Highway Engineer, where,
    in response to an opinion request as to whether the,
    State Highway Department could legally expend.money




                              -6019-
Hon. J. C. Dingwall, page 6      (M-1228)



    from the Highway Fund for purchase of land for
    building sites and storage yards for materials
    and equipment to be used in connection with
    construction and maintenance of highways, this
    office advised that while the Highway Commission
    was only given authority to construct and main-
    tain highways, yet, we were of the opinion that
    the Commission was not restricted to the exercise
    of the powers expressly conferred upon it, but it
    could exercise such implied powers as are necessary
    to carry out the powers expressly granted or such
    as are required to accomplish the purposes for
    which they were created.
         "And the Commission was further sustained in
    its interpretation by the fact that the Legislature
    could not help but be aware of the huge sums of
    money which have been expended for the construction
    of buildings in the past and therefore could not
    help but be aware of the interpretation placed on
    the legislative appropriations made from biennium
    to biennium to the State Highway Department Fund,
    and yet at each biennium an appropriation was made
    by the Legislature in which they continued to use
    substantially the same wording."
          This holding was reiterated in Attorney General's Opinions
WW-237 (1957) and WW-250 (1957).
          The Legislature has not changed this interpretation. On
the contrary it recognizes this interpretation by the exception
contained in Section 3 of Article 678f. It also recognized the
interpretation by the appropriation language contained in the item
of appropriation involved here which was vetoed by the Governor
for the reason that it used the phrase "for acquisition from the
Highway Department of land bounded by Congress Avenue. . . ."
          Since the term nproject" includes construction of any
building, Article 678f recognizes the authority for the Texas
Highway Commission to construct buildings necessary in the carrying
out of State Highway Commission's duty to maintain a system of
State highways, which,of course includes necessary office buildings.
Normally, office buildings are constructed by the State Buidling
Commission under the pre-existing laws of Article 678m and Article
678f. In the instant case, as above noted, construction of office
buildings for the State Highway Commission are to be built by the


                              -6020-
Hon. J. C. Dingwall, page 7         (M-1228)


State Highway Commission rather than the State Building Commission.
See Attorney General's Opinion M-721 (1970).
          You are advised that upon fulfillment of the terms of a
permit issued by the Texas Antiquities Committee as provided in
Article 6145-9, Section 6, Vernon's Civil Statutes, the Highway
Coannissionmay proceed with construction of its building project
for the construdtion of a new State Headquarters.Building.
                        SUMMARY
         The State Highway Commission has the legal au-
    thority to proceed with its building project for
    the construction of a new State Headquarters Build-
    ing on the site bounded by lOthand 11th Streets,
    Congress Avenue, and Colorado Street,.which is
    Block 124 in the City of Austin subject to the ful-
    fillment of the terms of a permit issued by the Texas
    Antiquities Coamuttee pursuant to Articles6145-9,
    Section 6, Vernon's Civil Statutes.




Prepared by John Reeves
Assistant AttOMey General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jack Goodman
John Banks
Malcolm Quick
Harold Kennedy
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
                                  -6021-
