                                         The Attorney             General of Texas
                                                             December 7, 1982
MARK WHITE
Attorney General


                                        Mr. Kenneth H. Ashworth                 Opinion No. MN-520
Supreme   Court Building                Conmlissioner
P. 0. Box 12546
Austin, TX. 76711. 2546
                                        Coordinating Board                      Re: Whether university con-
5121475-2501
                                        Texas College and University System     struction project is exempt
Telex   9101674-1367                    P. 0. Box 12788, Capitol Station        from a requirement of co-
T&co&r        51214750266               Austin, Texas   78711                   ordinating   Board    approval
                                                                                where it is constructed partly
1607 Main St.. Suite 1400
                                                                                from funds appropriated by
Dallas.   TX. 75201-4709                                                        HOUSe  Bill No. 1 of 2nd
2141742-6944                                                                    Called Session, Sixty-seventh
                                                                                Legislature
4624 Alberta       Ave., Suite    160
El Paso, TX.       79905.2793
                                        Dear Mr. Ashworth:
915/533-3464
                                             You have requested our opinion as to whether certain funds may be
                                        expended for college construction without the approval of the
1220 Dallas Ave., Suite          202
                                        Coordinating Board.
Hou.s,on,  TX. 77002.6966
7131650.0666
                                             In Attorney General Opinion MN-519 (1982), we said that approval
                                        by the Coordinating Board is not required in order to expend any of
606 Broadway,        Suite 312          the funds appropriated in House Bill No. 1, Acts 1982, Sixty-seventh
Lubbock,     TX.    79401-3479          Legislature, 2d Called Session, chapter 1, at 1. The pertinent
6061747-5236
                                        portion of the appropriation provides:

4309 N. Tenth.     Suite B                          Section 1. In addition to sums previously
McAllen,     TX. 76501-1665                      appropriated, the following amounts are appropri-
512/662-4547                                     ated to the named institutions of higher education
                                                 from the general revenue fund and other funds that
200 Main Plaza, Suite 400                        may be specified for the purpose of constructing
San Antonio.  TX. 76205-2797                     permanent improvements, acquisition of land, and
5121225-4191                                     major repair and rehabilitation projects as
                                                 listed, and those   projects  or improvements are
An Equal       Opportunity/
                                                 hereby authorized. Those institutions for which
Affirmative      Action     Employer             new construction only is authorized may use
                                                 appropriated   funds     for major    repair   and
                                                 rehabilitation.

                                        There follow specific appropriations for seventeen named institutions,
                                        together with details regarding the purpose of the expenditures. The
                                        first two appropriations, for example, provide as follows:




                                                                   p. 1884
Mr. Kenneth I-l.
               Ashworth - Page 2        (MW-520)




          1.   The University of Texas at Arlington

               New Construction:

               a.   Thermal Energy Plant
               b.   Architecture Building
               C.   Engineering Building

               Major Repairs and Rehabilitation:

               d.   Renovation of Cooper Center

               TOTAL APPROPRIATION                 $25,000,000



          2.   Texas Tech University

               New Construction:

               a.   Library Basement Alterations for Computer
                    Center
               b.   South Utilities Tunnel Interconnect
               C.   Completion of Subbasement in Art Building

               Major Repairs and Rehabilitation

               d.   Industrial Engineering Building
               e.   Civil and Mechanical Engineering Building

               TOTAL APPROPRIATION                 $5.900.000

Section 2 of House Bill No. 1 then states:

          Funds appropriated in this Act may be expended
          only   after   the   advance  approval   of   the
          Coordinating Board, Texas College and University
          System,   in   accordance with    the   statutory
          responsibilities of the board. A project shall
          not be initiated until the aovernina board of the
          institution has     determined that   there are
          sufficient funds available to complete the
          project. (Emphasis added).

     Attorney General Opinion MN-519 (1982) held that section 61.058
of the Education Code obviated the need for Coordinating Board
approval in the situation presented there. That statute provides, in
pertinent part:




                                     p. 1885
Mr. Kenneth H. Ashworth - Page 3   (MW-520)




             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 building and
          facilities at institutions of higher education
          financed from any source other than ad valorem tax
          receipts of the public junior colleges, provided
          that:

             . . ..

             (D) the requirement of approval or disapproval
          by the board does not aeely to any new
          construction or major repair and rehabilitation
          project that is specifically approved by the
          legislature.

Since the legislature in House Bill No. 1 has specifically approved
each of the "new construction" and "major repair and rehabilitation"
projects funded by that statute, Attorney General Opinion MW-519
(1982) concluded that Coordinating Board approval is not required for
any of the projects. You now ask whether approval is required where
funding for the projects is derived in whole or in part from non
appropriated funds.

     Section 61.058(D) provides that Coordinating Board approval is
not necessary for any "Project that is specifically approved by the
1egislature.u (Emphasis added). As we have noted, section 1 of House
Bill No. 1 declares that "those projects or improvements are hereby
authorized." The Supreme Court has held that a rider which authorizes
a university to acquire and construct various projects is not an "item
of appropriation," and therefore, is not subject to veto by the
governor. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 599
(Tex. 1975). We conclude that the terms of House Bill No. 1 itself
authorize the particular "projects" referred to therein and that, as a
result, section 61.058(D) precludes the necessity of Coordinating
Board approval in those instances.

                            SUMMARY

            Approval by the Coordinating Board of the Texas
         College and University System is not required for
         any project authorized in House Bill No. 1, Acts
         1982,   Sixty-seventh Legislature,     2d   Called




                             p. 1886
Mr. Kenneth H. Ashworth - Page 4   (MW-520)




          Session, chapter 1, at 1, for %ew construction"
          and "major repairs and rehabilitation" at any of
          seventeen named institutions of higher education,
          regardless of the source of funding of any such
          project.

                                       ml#g

                                                  WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Kate Conroe
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




                              p. 1887
