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    Honorable Homer A. Foerster           Opinion No.M-1276
    Executive Director
    State Board of Control                Re:   Authority of a State agency
    P. 0. Box 13047, Capitol Station            occupying space in a State
    Austin, Texas 78711                         office building on Board of
                                                Control inventory to expend
                                                specifically appropriated
                                                funds for certain space
                                                modifications under cir-
                                                cumstances stated, and re-
    Dear   Mr. Foerster:                        lated questions.

                your request for an opinion reads as follows:

                "The Board of Control has performed certain
           special office modifications for State agencies
           occupying State office buildings on Board of
           Control inventories.  These office modifications
           were considered to be over and above normal re-
           pairs, maintenance and improvements for general
           occupancy.  The occupying agency, through Governor's
           authority, transferred funds to the Board of
           Control to pay for such special modifications.
           The Attorney General's Opinion No. M-1199 has
           held invalid the Governor's authority to make
           such transfers.

                 "Inasmuch as the Board of Control receives
           appropriations only for the normal maintenance
           repairs and improvements required for general oc-
           cupancy, no funds are available  for providing
           modifications peculiar to the special needs of
           the programs of the occupying agency.

                "Therefore, a formal opinion is respectfully
           requested on the following questions:

                "1 . Can 'a State agency occupying space in a
           State office building on Board of Control inventory
           expend specifically appropriated funds for certain
           space modifications which are considered to be

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Hon. Homer A. Foerster, page 2      (M-1276)



    peculiar to the needs of that agency, necessary
    for the efficient performance of its program, and
    which are considered to be over and above normal
    building maintenance, repairs and improvements
    required for general occupancy?

          "2 . If the above question is answered in
     the affirmative, can the Board of Control be re-
     imbursed for the actual cost of rendering services
     of employees, services of maintenance, and/or
     services of equipment to make such modifications
     through an interagency contract as authorized by
     Article 4413(32), V.C.S.?

          "3 . If Question Number Two (2) is answered
     in the affirmative, is the Comptroller thereby
     authorized to process vouchers and draw a warrant
     for the reimbursement for the actual cost of
     services in accordance with the interagency contract?

          "In regards to Question Number One (l), refer-
     ence is made to Article 673, V.C.S. wherein the
     responsibility of providing improvements and re-
     pairs is clearly within the Board of Control's
     authority.   Reference is made also to Article
     678f, V.C.S., Section 2, Paragraph (A), which in
     effect prohibits occupying agencies from making
     such modifications except through the State Board
     of Control as the 'Using Agency."   Reference is
     also made to Article 4413(32), V.C.S. Section 3
     and Section 6. In this regard, reference is made
     to Attorney General's Opinion No. C-78 (May 15,
     1963) and Opinion No. M-695 (September 14, 1970).

          "Specific examples of the office modification
     required for agency programs are enumerated as
     follows:   (1) Agency obtains computer equipment
     which requires additional air conditioning handling
     units. The Board of Control is called upon to
     provide and install these extra air conditioning
     units.   (2) Agency personnel expansion resulting
     from new programs requiring modifications in office
     layout, requiring relocation, removal and/or ad-
     ditional partitions to provide more efficient
     program functioning.    (3) Agency installation of
     sophisticated mechanical equipment requiring
     special electrical service for proper function-
     ing.
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Hon. Homer A. Foerster, page 3              (M-12?6)


             II                   II
                  .   ,   .   .



             In Attorney General's Opinion M-1274      (1972) it was
held:

             "The State Department of Public Welfare may
        contract with the State Building Commission and
        the Board of Control for the renovation of the
        fifth floor of the John Ii. Reagan State Office
        Building, for the renovation of other portions
        of that building to ,accomodate the installation
        of computers and other equipment, and for the
        improvement of the defective elevator system
        currently in use in that building."

          It was pointed out in this opinion that the Legislature
has provided that when improvements or repairs are needed in the
proper care of State-owned buildings maintained by the Board of
Control, the Board shall provide for such repairs or improvements.
Articles 67Sf, 673 and 665, Vernon's Civil Statutes.

             Section 3 of Article 678m, Vernon's Civil Statutes,
provides:

             "The Commission shall have the authority to
        promulgate such rules and regulations as it deems
        proper for the effective administration of this
        Act. Under such terms and conditions as may be
        provided by law, the Commission may acquire necessary
        real and personal property, modernize, remodel, build
        and equip buildings for State purposes, and make
        contracts necessary to carry out and effectuate
        the purposes herein mentioned in keeping with ap-
        propriations authorized by the Legislature.  Pro-
        vided, however, that the Commission shall not sell
        or dispose of any real property,of the State, except
        by specific authority from the Legislature."

          Section 3 of Article 4413(32), Vernon's Civil Statutes,
provides in part:

             "Any state agency may enter into and perform
        a written agreement or contract with other agencies
        of the state for furnishing necessary and authorized
        special or technical services, including the services
        of employees, the services of materials, or the
        services of equipment.   . . .II


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 Hon. Homer A. Foerster, page 4             (M-1276)



           The provisions of Article 678m and 4413(32) above quoted
 must be construed together with the statutory powers of the Board
 of Control to provide for the proper care and maintenance of State-
 owned buildings maintained by the Board of Control.

               As pointed out in your request, the Legislature in
     making appropriations to the Board of Control for the proper care
     and maintenance of buildings under its management and control,
     does not contemplate major renovations that may be necessary for
     the proper utilization of office space by the occupying agency.
     In certain instances this may be accomplished through the State
     Building Commission under the authority granted to it by the pro-
     visions of Article 67Sm, Vernon's Civil Statutes, and in other in-
     stances it may be accomplished through interagency agreements
     entered into by the Board of Control under the provisions of
     Article 4413(32), Vernon's Civil Statutes.

               In view of the foregoing your questions are answered
     as follows:

               Question 1. A State agency occupying space in a State
     office building under the management and control of the State Board
     of Control may expend appropriated funds for certain space modifi-
     cations which are considered to be peculiar to the needs of that
     agency necessary for the efficient performance of its program and
     which are considered to be over and above normal building main-
     tenance, repairs and improvements required for general occupancy.

               Questions 2 and 3. This may be accomplished by the
     occupying agency and the Board of Control entering into an inter-
     agency agreement pursuant to the provisions of Article 4413(32),
     Vernon's Civil Statutes.

                                SUMMARY

                  A State agency occupying space in a State
             office building maintained and controlled by the
             Board of Control may expend specifically appropriated
             funds for certain space modifications which are
             necessary to the peculiar needs of that agency
             necessary for the efficient performance of its
             program and which are considered to be over and
             above normal building maintenance, repairs and im-
             provements required for general occupancy, and such
             agency may enter into an interagency contract with



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Hon. Homer   A. Foerster, page 5      (M-1276)



     the Board of Control for such purpose.




                                              General of Texas

Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Banks
J. C. Davis
Roland Carlson
Harry Green

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALXER
Executive Assistant

NOLA WHITE
First Assistant




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