Mr. James A. Giddlngs            Opinion No. Ww-231
Acting Executive Director
Board for Texas State Hospi-     Re:   Is it necessary for
   tals and Special Schools            the Board for Texas
Austin, Texas                          State Hospitals and
                                       Special Schools to
                                       secure approval of
                                       the Board of Control
                                       for ouilding con-
                                       tracts executed
                                       after August 31,
                                       1957 involving reappro-
                                       priated funds under
                                       the 1957 General
Dear Mr. Giddings:                     Appropriation Act.
       We have your letter in which you call attention
to the last paragraph of Opinion m-158 (1957) and then
state:
       "Section 1 of Article II, House Bill 133,
        Acts, 55th Legislature, R.S., reappropriated
        to the Board for Texas State Hospitals and
        Special Schools any unexpended balances
        remaining in the State Hospitals Building
        Fund appropriated by H.B. No. 111, Chapter
        ilf(A;;s,lzzd Legislature, R.S., 1953, and
                      :;cts,54th Legislature, R.S.,
        1955, including accrued interest.
       "In view of the language of Opinion No. WW-
        158 and in order that this office may pro-
        perly carry out its duties, we respectfully
        request an opinion from your office as to
        whether or not it is necessary to secure
        the approval of the Board of Control for
        contracts executed after September 1, 1957
        involving these reappropriated funds."
       For convenience, we will sometimes hereinafter
refer to the Board for Texas State Hospitals and Special
Schools as "Hospital Board", and the State Hospitals and
Special Schools Building Fund as "Hospital Building Fund".
Mr. James A. Giddings, Page 2,   (w-231)


       In the above mentioned Opinion ~~-158, we were
only concerned with the extent of the authority of the
Board of Control to review and approve the building
contracts made by the Hospital Board. We only briefly
mentioned the fact that the authority of the Board of
Control would terminate after August 31, 1957, for the
reason that we considered that the question discussed
would become moot after that date which was only two
months away, and also because we did not think it neces-
sary to discuss the constitutional question involved In
the statute giving the Board of Control authority to
review and approve b,uildingcontracts made by the Hos-
pital Board.
       As shown by the history of this matter as set
out in the footnote to this Opinion, it is clear to us
that the authority and duty of the Board of Control to
review and approve building contracts made by the Hos-
pital Board by virtue of all acts since 1949, and through
the 54th Legislature, will expire after August 31, 1957.
The only question is whether the authority of the Board
of Control has been extended beyond August 31, 1957 by
the 55th Legislature, 1957.
       The General Appropriation Act of 1957 for the
biennium beginning September 1, 1957, (House Bill 133,
Ch. 385 Acts R.S. 55th Leg., 1957, p. 870) at page
908 reappropriated to the Hospital Board the unexpended
balances remaining in the Hospital Fund for building
purposes. We are unable to find any provision in this
Appropriation Bill or any General Law where the Legisla-
ture made any provision for authority of the Board of
Control to review or approve ~the building contracts
made by the Hospital Board during the biennium beginning
September 1, 1957.
       You are, therefore, advised that it is not
necessary for the Rospital Board to secure the approval
of the Board of Control of building contracts made by
the Hospital Board after August 31, 1957.
                         SUMMARY
           It is not necessary for the Board
           for Texas State Hospitals and
           Special Schools to secure the
           approval of the Board of Control
           of building contracts made after
,   .   -.




             Mr. James A. Giddings, Page 3   (WW-231)


                         August 31, 1957.
                                        Very truly yours,
                                        WILL WILSON
                                        Attorney General of Texas



                                        By b&and-
             APPROVED:                     Assistant
             OPINION COMMITTEE:
             B. H. Timmins, Jr.
             Richard Stone
             REVIEWED FOR THE ATTORNEY GENERAL
             BY: George P. Blackburn

             HGC:jas



                    1.
                        Chapter 316, page 588, Acts, Regular Session,
             51st Legislature, 1949 (V.A.C.S. Article 317&b) created
             the Hospital Board and placed upon said Board the
             powers theretofore exercised by the Board of Control
             except the Board of Control was to continue to handle
             all purchases.
                    The same Legislature at its First Called Session,
             1950, by House Bill 2, Chapter 1, page 1 amended the
             original omnibus tax bill of 1935 which amendment per-
             tained only to the cigarette tax so as to provide a fund
             for the buildings of the State Hospitals and Special
             Schools. This amendment of 1950 amended the 1935 Act
             in the following respects:
                    (1) Section l(a) provided for an increase in
             the cigarette tax, and provided that Section 2 of the
             1935 Act is "amended so as to hereafter and until August
             31, 195'7,read as follows".
                    (2) Section l(b) provided for a different tax
             on cigarettesand provided that Section 2 of the 1935
             Act is "amended effective September 1, 1955, so as to
Mr. James A. Giddings, Page 4    (ww-231)


thereafter read as follows".
     (3) Section 2(a) provided that Section 3 of the
1935 Act as amended "is hereby amended so as to here-
after and until August 31, 1957, read as follows". Said
Section 2(a)    the third unnumbered paragraph provided
that a certain portion of the cigarette tax shall be
credited to a special fund to be known as the State
Hospitals and Special Schools Building Fund which was
created by said section and limited the amount of this
Fund to five million dollars for the biennium ending
August 31, 1951, and not in excess of five million
dollars for each fiscal year thereafter. This same
Section 2(a) of said House Bill 2 in the 5th and 6th
unnumbered paragraphs contained provisions reading as
follows:
          "All funds credited to the State Hospi-
     tals and Special Schools Building Fund under
     this Act are hereby appropriated to the Board
     for Texas State Hospitals and Special Schools
     for the purpose of constructing, repairing
     and equipping such buildings as in the opinion
     of the Board are necessary to the proper care
     of those committed or to be committed to such
     hospitals and special schools according to law.
     Provided, however, the fees paid to an architect
     shall not exceed six per cent (6%) for the plans,
     specifications and supervisions of said build-
     ings and all contracts made for and the final
     acceptance in connection with such construction
     other than the plans and specifications, shall
     be subject to the review and approval of the
     Board of Control.
          "All unexpended balances of funds appro-
     priated to the said Board existing at the end
     of this or any succeeding biennium shall revert
     and be returned to the State Hospitals and
     Special Schools Building Fund."
     All of the provisions of said Section 2(a) of
House Bill 2 are carried forward in V.A.C.S., Vol. 20,
page 74 et seq as a part of V.A.C.S. Article 7047c-1,
and with a heading reading "Text of Section 3 until
August 31, 1957". It is to be noticed that the above
quoted paragraphs pertaining to the Board of Control
are placed under this heading as being effective only
until August 31, 1957. It is only a question as to
whether any Act has been passed extending the authority
Mr. James A. Giddings, Page 5   (w-23l)


of the Board of Control under the above quoted provi-
sion after August 31, 1957. It is also to be noticed
that Vernon's statutes showed by Its heading that the
above quoted portion of the 1951 Act pertaining to
the power of the Board of Control is not to be con-
sidered as a permanent act, but only a temporary act
effective until August 31, 1957.
     (4) Section 2(b) of said House Bill 2 provided
that Section 3 of the 1935 Act as amended "is amended
effective September 1, 1957." It is to be noticed
that there is nothing whatever under this Section 2(b)
to become effective on September 1, 1957, which allo-
cates any part of the cigarette tax to the Hospital
Building Fund or pertaining to the power of the Board
of Control over contracts made by the Hospital Board.
All of these provisions of said Section 2(b) of said
House Bill 2 are carried forward in V.A.C.S., Vol. 20,
page 77 under the heading "Text of Section 3 effective
September 1, 1957".
     After August 31, 1957, everything contained in
Section 2(a) of said House Bill 2 will be wiped out,
which will include the provision relating to the Board
of Control, and on September 1, 1957, the provisions of
Section 2(b) of said House Bill 2 will become operative
unless changed by the Legislature.
     Even if the Act did not provide that the provisions
of Section 2(a) would expire at the end of the biennium
ending August 31, 1957, that part of said Section above
quoted pertaining to the powers of the Board of Control
would expire at the end of the biennium ending August
31, 1951, for the reason that the above quoted provi-
sion is only an appropriation of the funds in the
Hospital Building Fund, and giving the Board of Control
power over the expenditure of these funds, and said
appropriation under Article VIII, Section 6 of the
Constitution could not be for a longer term than two
years. The Legislature recognized this view just
expressed, for in the General Appropriation Bill for
1951, Chapter 499, page 1228 at page 1298, Acts of the
52nd Legislature it made an appropriation out of the
Hospital Building Fund for the biennium ending August
31, 1953. A rider or provision was attached to the
appropriation in the identical language above quoted
as to the power of the Board of Control conained in the
1951 Act above mentioned.
Mr. James A. Giddings, page 6    (W-231)


     The General Appropriation Bill for 1953, Chapter
81, page 127 at page 161 made an appropriation out of
the Hospital Building Fund to the Hospital Board for
building purposes for the biennium ending August 31,
1955. We are unable to find any provision in this
appropriation or General Law giving any authority or
duty to the Board of Control with reference to the
expenditure of this money like that found in previous
appropriations to the Hospital Board.
     The General Appropriation Bill for 1955, Chapter
151, page 1348 at page 1376 made an appropriation out
of the Hospital Building Fund for building purposes
for the biennium ending August 31, 1957. This Appro-
priation Bill had no rider or provision relating to
any power or duty of the Board of Control with
reference to the expenditure of this money. However,
under another Act of the ,sameLegislature, to-wit,
House Bill 660, Chapter 404, Acts of the 54th Legis-
lature, Regular Session, page 1080, the 1935 Act was
again amended by increasing the tax on cigarettes and
said amendment contained the same provision as con-
tained in Section 2(b) of the 1951 Act which allocated
to the Hospital Building Fund the same percentage of
the tax as formerly allocated and also appropriated
this fund, and the same appropriation had a clause
identical with that contained in the 1950 and 1951
Acts pertaining to the duty and authority of the Board
of Control. This appropriation, of course, could be
for only two years (Article VIII, Section 6 of the Con-
stitution), and, therefore, the authority of the Board
of Control terminates with the end of the biennium on
AuglJst31, 1957. This view is f~urtherstrengthened by
the fact that the same Act of 1955 providesthat after
August 31, 1957, all revenue derived from the cigarette
tax, except that allocated to the School Fund, shall be
credited to the General Revenue Fund. In other words,
there will be no additional part of the cigarette tax
credited to the Hospital Building F,undafter August 31,
1957. This appropriation of the Building Fund expires
after August 31, 1957, and the authority of the Board
of Control also terminates with the appropriation.
     As stated in the   body of this opinion, the 1957
appropriation for the   biennium beginning September 1,
1957 does not contain   any provision for the Board of
Control to review and   approve any contracts made by
the Hospital Board.
