                           The Attorney                      General of Texas
                                                 September         22,   1980

MARK WHITE
Attorney General

                   Honorable E. D. Walker                                Opinion No.     M+245
                   Chancellw
                   University of Texas System                            Re:    Whether projects constructed
                   60 1 Colorado                                         by    proceeds     of  bonds     issued
                   Austin, Texas   78701                                 pursuant   to article VII, section 18
                                                                         of the Texas Constitution     must be
                   Honorable Kenneth H. Ashworth                         ;ppyd         by   the  Coordinating
                   Commissioner   of Higher Education
                   Coordinating  Board
                   Texas College & University System
                   Austin, Texas   78711

                   Gentlemen:

                           You ask the following       question:

                                         1. Are      proposals   for   the   construction       cr
                                     acquisition    of build@   or other permanent      improve-
                                     ments for the use of The University           of Texas at
                                     Austin and The University         of Texas at El Paso
                                     financed in whole out of proceeds from bonds issued
                                     pursuant     to Section 18 of Article VII of the Texas
                                     Constitution      required   to be skmitted          to the
                                     Coordinating     Board for approval pursuant to Section
                                     61.058 of the Texas Education Code?

                           Article     VII, section   18 of the state     constitution   provides   in pertinent
                   part:

                                [Flor    the plrpcee    of constructing, equipping,   or
                                acquiring buildings or other permanent   improvements
                                for The University     of Texas System,  including The
                                Main University of Texas at Austin, The University of
                                Texas Medical Branch at Galveston, The University of
                                Texas Southwestern      Medical School at Dallas, The
                                University   of Texas Dental Branch at Houston, Texas
                                Western College of The University of Texas at El Paso,
                                . . &sting of five other institutions]




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Honorable   E. D. Walker    - Page Two       (MN-245)




             the Board of Regents        of The University       of Texas is hereby
             authorized    to issue negotiable    bonds and notes not to exceed a
             total amount of two-thirds (Z/3) of twenty per cent (20%) of the
             value of the Permanent      University Fund exclusive of real estate
             at the time of any issuance thereof;            provided,    however, no
             building or other permanent       improvement      shall be acquired or
             constructed      hereunder   for use by any institution            of The
             University    of Texas System, except at and for the use of the
             general academic institutions      of said System, namely, The Main
             University     and Texas Western        College,     without    the prior
             approval    of the Legislature       or of such agency as may be
             authorized   by the Legislature   to grant such approval.

             .I..




             This Amendment     shall be self-enacting;   . . .

The name of the Main University      has been changed to “The University of Texas at
Austin,” and the name of Texas Western College has been changed to “The University
of Texas at El Paso.” -See Educ. Code §§ 67.02, 69.02.

        The quoted language authorizes      the Regents of the University of Texas to issue
bonds to finance construction      of buildings and other permanent       improvements    at ten
enumerated     institutions.  However, it provides that such construction      projects may not
be undertaken        at eight of these institutions     without    the prior approval    of the
legislature   or of an agency authorized        by the legislature    to approve them.      This
restriction  &es not apply to construction     projects at The University of Texas at Austin
and The University of Texas at El Paso.

       The amendment       is expressly made “self-enacting,”    a term used interchangeably
with the more common term “self-executing.”            See, e.g., Attorney General Opinions
WW-2 (1957); V-748 (1948); V-158 (1947). A self-executing              constitutional    provision
supplies a sufficient    rule to protect the right given or to permit enforcement           of the
duty imposed.     Mitchell County v. City National Bank of Paducah, Kentucky, 43 S.W.
880 (Tex. 1898); ‘see, e.g., State v. Klein, 224 S.W. 2d 250 (Tex. Crim. App. 1949); Aston
v. Allison, 91 S.W. 2d 852 (Tex. Civ. App. -Dallas 1936, no writ). Thus, the Regents
may exercise     the authority      granted them by article      VII, section     18 without the
enactment   of enabling legislation.

        When a constitutional       orovision   is self-executinz.    the le&lature     mav not
unreasonably     restrict   the power it grants.     Vinnicombe ;I State, 541 P. 2d 705-(Cal.
App. 1959); Link v. Public Utility Commission           of Ohio, 131 N.E. 796 (Ohio 1921). Any
legislation  on the subject of a self-executing       provision must be in harmony with it and
further the exercise of the power it grants.           Direct Sellers Association   v. McBrayer,
503 P. 2d 951 (Ariz. 1973); State v. Dunn, 496 S.W. 2d 480 (Tenn. 1973). For instance,
article XVI, section 37 of the constitution       provides for mechanics’ liens. This orovision
is self-executing       and grants a right which exists despite non-compliance          with the




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        Honorable     E. D. Walker     - Page Three          (MW-245)




        statutory lien procedures.  First National Bank in Dallas v. Whirlpool Corp., 517 S.W. 2d
        262 (Tex. 1974); Robert Burns Concrete Contractors,      Inc., v. Norman, 561 SW. 2d 614
        (Tex. Civ. App. - Tyler 1978, writ ref’d n.r.e.).

              In our opinion, the Regents of the University of Texas may issue bonds to finance
        the acquisition   or construction of permanent   improvement  at the University of Texas
        at Austin or the University       of Texas at El Paso without the approval        of the
        Coordinating    Board. Section 61.058 of the Education Code provides in part:

                           To assure efficient use of construction   funds and the orderly
                      development     of physical  plants    to accommodate      projected
                      college student enrollments,   the board shall:

                      . . . .

                          (8) approve or disapprove        all new construction   and repair
                      and rehabilitation  of all buildings and facilities at institutions  of
                      higher   education   financed     from any source other than ad
                      valorem tax receipts of the public junior collages. . . .

               This statute formerly excepted from the approval requirement            projects involving
        the use of constitutional      funds authorized   by article VII, sections 11, 17, or 18 of the
        Texas Constitution.      See Acts 1971, 62d Leg., ch. 1024, 51, at 3138 (amending and re-
        enacting   Title 3 of the Texas Education          Code).   A 1975 amendment          deleted this
        exception.     Acts 1975, 64th Leg., ch. 676, 883, 5, at 2056, 2057. The Coordinating
        Board now has the power to approve or disapprove construction              projects financed by
        article VII, section 18 at eight of the University of Texas institutions           enumerated    in
        that constitutional   provision.    We do not believe they can constitutionally       exercise the
        power to approve or disapprove such projects at the University            of Texas at Austin or
        the University of Texas at El Paso.

              Your second       question   is as follows:

                           Are proposals for the construction      or acquisition of buildings
                      or other permanent       improvements     for The University of Texas
                      at Austin and The University           of Texas at El Paso financed
                      partially   out of other sources of revenue and partially from
                      proceeds of bonds issued pursuant to Section 18 of Article VII of
                      the Texas      Constitution     required    to be submitted      to the
                      Coordinating    Board for approval pursuant to Section 61.058 of
                      the Texas Education Code?

        Section 18    of article VII of the constitution   exempts from the approval requirement
        permanent      improvements   “acquired or constructed    hereunder” for The University   of
        Texas at      Austin end The University        of Texas at El Paso.      (Emphasis   added).
        “Hereunder”      has been defined to mean “under the authority         of” this statute    or
        provision.    Oxford English Dictionary at 240. The answer to your questions depends on




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Honorable    E. D. Walker   - Page Four       OlW-245)




whether      a building financed    partially   from the constitutional   bond proceeds    and
partially from other funds is a building constructed       under the authority of article VII,
section 18. In our opinion, a building that receives a minimal amount of financing from
the section      18 bond proceeds       is not constructed    under the authority      of that
constitutional    provision.   We believe the major portion of financing for a building
should derive from article VII, section 18 funds before the bulIdlng can be said to be
constructed    under that provision.     Consequently,  where at least half of the funding for
a building derives from other sources, approval under section 61.058 is required unless
some other exception is applicable.       See Educ. Code §61.058(8).

                                        SUMMARY

                 Proposals for the construction      or acquisition  of buildings or
             other permanent     improvements     for the University    of Texas at
             Austin or the University     of Texas at El Paso financed in whole
             out of bond proceeds raised pursuant to article VII, section 18 of
             the Texas Constitution     are not required to be samitted        to the
             Coordinating   Board for approval pursuant to section 61.058 of
             the Education Code. Projects for those institutions         financed in
             part by article VII, section 18 funds must be swmitted            to the
             Coordinating   Board for approval pursuant to section 61.058 when
             other funds provide the predominant       source of financing.

                                                  Very truly yours,


                                                                 M
                                                  MARK        WHITE
                                                  Attorney   General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

Prepared    by Susan Garrison
Assistant   Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath,    Chairman
Jon Bible
Susan Garrison
Rick Gilpin
Eva Loutzenhlser




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