              H[E,~XTORNEY            GENERAL
                         OFTEXAS




Honorable Wm. J. Burke               Opinion No. WW-499
Executive Director
State Board of Control               Re:   Authority of the State
Austin, Texas                              Board of Control to
                                           modify and alter the
                                           permanent entrances ln-
Dear Mr. Burke:                            to the Capitol grounds.
           You have requested an opinion conaernlng your auth-
ority to change the design of the drive entrances and exits
of    the Capitol grounds located addacent to the corner of Con-
gress    Avenue and Eleventh Street. Attached to your request
is a map or plat showing the proposed change In the driveways
providing for the entrance and exit of traffic into and out
of the Capitol grounds.

        The proposed change contemplates a widening of that
part of the driveways providing for the entrance and exit
located adjacent to the corner of Congress Avenue and
Eleventh Street in the City of Austin, and eliminating the
ninety degree turns existing at the present time. You state
that the purpose of this proposed change is as follows:

                "The fact that a serious bottleneck
            exists at the 11th Street &nation with
            the west drive of the Capitol creates a
            necessity for consideration of changes
            in design of the outlet. The change in
            design would move (slightly to the west)
            the ornamental stone column ad,jacent to
            the drive outlet and would necessitate
            the removal of approximately 4' of the
            iron fence In order to straighten out the
            offset In the west Capitol Drive; the
            ornamental column would be replaced on
            its foundation and the fence reconnected.
Honorable Wm. J. Burke, page 2 (WW-499).



       We merely propose to eliminate the off-
       sets In the west driveway and to provide
       for freer access to 11th Street. A similar
       change would be required on the east drive
       in the moving of the ornamental column
       (slightly to the east), shortening of the
       fence, and its subsequent reconnection to
       the ornamental column. Each of the changes
       proposed will involve a slight change in
       the radius of the curbs bordering 11th
       Street.


              "The changes proposed would eliminate
        the existing blockade of sidewalks on both
        the west and eastdrives.    AA lnspectloA
       .of the area will reveal that the sidewalk
        terminates near the fence, that IA order
        to obtain access to the street it is
        necessary for pedestrians witbiA',the
        Capitol grounds and on the sidewalk to step
        out into the drive in order to get around
        the end of the fence and the ornamental
        column. Our proposal would provide a
        sidewalk connection with the curb area
        without the existent danger that is iAhereAt
        in the present situation. We believe that
        we should correct difficulties relating
        to pedestrian and vehicalar movements wlth-
        in the Capitol grounds; the correction
        will improve the external appearanae of the
        grounds, particularly on the 11th Street
        side."

               Your specific questions are:

        "1 .   If the ObllgatiOA to maintain, repair,
               supervlse, etc., iAClUdes the grounds
               and driveways, does the Board of
               Control have authority to modify
               the entrance to the Capitol drives
               to conform with proposed design iA-
               dlcated on the attached print?

        "2 *   Does Article 86lB of the Penal Code
               prohibit such modification of the
               entrance ways under the terminology
               ,of Sections 1 and 6?
Honorable Wm. J. Burke, page 3   (WW-499)



       "3. Does Article 861B of the Penal Code
            abrogate any of the authority, ex-
            pressed or implied, conve ed by
            Articles 667 and 670 (VCS~?

       "4. Does the Board of Control now have
            full authority to proceed to make
            the modifications of the drives in
            the event such should be necessary?"

       Section 1 of Senate Bill 437, Acts of the 55th
Legislature, Regular Session, 1957, Chapter 313, page 758,
codified in Vernon's as Article 861b, Vernon's Penal Code,
provides:

           "It shall be unlawful, without the prior
       express consent of the Legislature, for any
       officer of this state or any employee thereof
       or any other person to construct, build, erect
       or maintain any building, structure, memorial,
       monument, statute, concession or any other
       structure including creation of parking areas
       or the laying of additional paving on any of
       the grounds that surrounded the State Capitol
       on January 1, 1955, and which grounds were then
       bounded by Eleventh, Brazes, Thirteenth and
       Colorado Streets, In the City of Austin, Texas,
       whether such land lay inside OP outside the
       fence enclosing part of the grounds3 provided,
       however, that paved access and underground
       utility installations may be constructed and
       m           provided further, that the pro-
       visions of this Act shall not apply to the
       Supreme Court Building, according to the ap-
       proved plans dated October 29, 1956, nor to
       the State Office Building, according to the
       approved plans dated November, 1956.”

       Sections 2 and 3 provide for the penaltieS   for   Viola-
tion of the provisions of Section 1 of the Act.

        Section 1 of Article II of the Constitution of Texas,
provides as follows:

            "Section 1. The powers of the Govern-
       ment of the State of Texas shall be divided
       into three distinct departments, each of which
       shall be confided to a separate body of magis-
       tracy, to wit: Those which are Legislative to
       one; those which are Executive to another, and
       those which are Judicial to another; and no
Honorable Wm. J. Burke, page 4   (w-499 1


      person, or collection of,persons, being of
      one of these departments, shall exercise any
      power properly attached to either of the
      others, except in the instances herein ex-
      pressly permitted."   (Rmphasis added)

       In view of the prohibition contained in Section 1
of Article II of the Constitution above quoted, it Is
necessary that we first determine whether the provisions
of Article 861b of Vernon's Penal Code is an attempt to
exercise managerial functions (an exalusive power of the
Executive Department of Government) as'dlstinguished from
a law making function (an exclusive power of the Legls-
latlve Department of Government).

       It is noted that in enacting the provisions of
Article 861b, the Legislature did not attempt to state
how any particular building or structure would be erected
or maintained; rather the Legislature was providing by law
the limits of power to construct, build, erect or maintain
certain buildings.  Therefore, it is our conclusion that
Article 861b of Vernon's Penal Code constitutes an exercise
of Legislative function rather than an Executive function
of government and in this respect is constitutional because
it is not an attempt by the Legislature to Itself "exercise"
an executive power. We need not discuss the phrase "with-
out the prior express consent of the Legislature".

       The State Board of Control Is a statutory board,
created by Title 20 of the Revised Civil Statutes of Texas
of 1925, as amended, and, therefore, exercise only statutory
powers. Therefore, we are not confronted with the question
of whether the provisions of Article 861b attempts to limit
the exercise of powers granted by the Constitution of Texas
to officers and boards created by the Constitution and we
express no opinion thereon,

       The proposed change contemplated in your request
will require the laying of additional paving on the Capitol
grounds as defined by Article 861b, Vernon's Penal Code.
Furthermore, it will require the removal and reinstalla-
tion of an existing structure (ornamental granit columns)
on the Capitol grounds. Therefore, such proposed change is
in direct contravention to the express provisions of Arti-
cle 861b. Since the proposed change is providing for
paved access to the Capitol grounds, the only remaining
question is whether such proposed change will fall within
the proviso above quoted.
Honorable Wm. J. Burke, page 5      (w-499 1



       It is our opinion that the proviso will not negate
the express prohibition of laying additional paving on the
Capitol grounds, for when a statute expresses a purpose,
and afterwards an Inconsistent particular Is expressed,
the latter is to be regarded as an exception to the former,
and both are permitted to stand. 39 Tex. Jur., Statutes,
Section 101, page 191.

       In our opinion the proposed than e will contravene
the provisions of Section 1 of Artiale iii
                                        61b. Therefore,
in answer to your specific questions you are advised:

       1. The State Board of Control does not have the
authority to modify the entrance to the Capitol drives
to conform with the proposed design indicated by the at-
tached map or plat to your request.

       2. Article 86lb, Vernon's Penal Code, prohibits
such modification of the entrance way.

       3. Article 667, Vernon's Civil Statutes, provld-
ing that the Board of Control shall have charge and aon-
trol of the halls, chambers and committee rooms of the
State Capitol Building, and Article 670, authorizing the
Board of Control to prepare plans and specifications for
the improvements and repairs of public buildings or pro-
perty of the State and to supervise the construction of
said work, have no application to the facts presented in
your request.

       4. The Board of Control does not have full
authority to proceed to make modifications of the drives
involved in your request.

       This opinion is not to be construedas passing
upon the validity of the Penal provisions contained in
Sections 2 and 3 of Article 861b, Vernon's Penal Code.



                          SUMMARY

               The State Board of Control is
               prohibited by the provisions
               of Section 1 of Article 861b of
    Honorable Wm. J.   Burke,   page 6   (w-499 1



                         Vernon's Penal Code from making
                         any modlfTcotlonof the drives
                         Into or from the Capitol grounds
                         whiah will call for the laying of
                         additional paverent.
                                         Yours   very truly,
                                         WILL WILSON
                                         Attorney General of Texas




    JR:zt                                    Asellstant

    APPROVED:
    OPINION COMMITTEE
    Geo. P. Blackburn, Chairman

    Leonard Passmore

    Jack Goodman

    REVIEWED FOR THE ATTORNEY OENERAL
r   BY:
        W. V. Geppeti
