Senator W. S. Fly
Chairman of the Committee
   on Finance
Senate of the State of Texas
Capitol Station
Austin, Texas
                 Opinion No. WW-40

                 Re:   Scope of authority of the
                       State Building Commission
                       under Acts 1955, 54th Leg.,
                          1298, ch. 514, Article
                       6P?8m, V.A.C.S., and the
                       effect of such Act as to
                       the repealing of Article
                       861a, P.C.

Dear Sir:

           We have received your request for our opinion
dated February 12, 1957, which propounds the following
questions:

           "1. Was the Building Commission, cre-
     ated under Article 678m Vernons Annotated
     Civil Statutes, authorized to begin con-
     struction of the State Courts Build,ing with-
     o,ut having undertaken and completed the air-
     conditioning of the halls, offices and com-
     mittee rooms of the Rouse of Representatives
     and the Senate?

          "2 o Was the Building Commission au-
     thorized to enter into a contract for the
     construction of the State Courts Building
     and pledge funds required to be expended
     for such air-,conditioning project aforesaid?

          "3 ~ Is the Building Commission au-
     thorized to enter into a contract pledging
     moneys beyond a period of two years?
Senator W. S. Fly, page 2 (WW-40)




           4. Did the Building Commission Act,
          I!


     namely, Article 678m repeal the Penal Act,
     towit: Article 861a of the Penal Code, ln-
     sofar as its depredation of the Capitol
     grounds?"

          1. Article III, Sec. 51b, Subdivision (c) of
the Constitution prescribes the powers and duties of the
Commission as follows:

          "Under such terms and conditions as
     are now or may be hereafter provided by
     law, the Commission may acquire necessary
     real and personal property, salvage and
     dispose of property unsuitable for State
     purposes, modernize, remodel, building and
     equip buildings for State purposes, and
     negotiate and make contracts necessary to
     carry out and effectuate the purposes
     herein mentioned."

          It will be noted that the Commission is em-
powered to:

          1. Acquire necessary real and personal
     property.

          2. Salvage and dispose of property un-
     suitable for State purposes.

          3.   Modernize.

          4.   Remodel.

          5. Build and equip buildings for State
     purposes.

          Each of the five acts enumerated are within
themselves separate and distinct functions of the Com-
mission.

          Article 678m, Sec.qa, V.A.C.S., authorized
the Commission to engage In two acts by stating: "The
first major modernizing and remodeling program to be
.




    Senator W. S. Fly, page 3 (WW-49)




    undertaken under the provisions of this Act shall be
    the air conditioning of the halls, offices and committee
    rooms of the House of Representatives and Senate in the
    Capitol Building;"

               The restrictive language used in Sec. 9a applies
    to "modernining and remodeling" programs only and does not
    restrict the Commission from undertaking non-major moderni-
    zation and remodeling projects, nor does it affect or re-
    strict the Commission from pursuing,any of the other three
    func,tions enumerated by Article III, Sec. 51b, subdivision
    (c) of the Constitution.    The last sentence of Article
    678m, Sec. ga, does not serve to broaden the scope of the
    language used in the first sentence of said Sec. ga, but
    mereiy indica~tes that this modernization and remodeling
    to 'be first ,undertaken should be completed with all dis-
    patch.

              It follows then that the Building Commission
    was authorized to begin the State Courts Building prior
    to the undertaking and completion of the air condition-
    ing of the halls, offices and committee rooms of the
    House of Representatives and the Senate in the Capitol
    Building.

               2. Article III, Sec. 5lb, Subdivision (b) of
    the Constitution provides, "The State Building Fund shall
    be expended by the Commission upon appropriation by the
    Legislature for the uses and purposes set forth in sub-
    division (c) hereof."

              This constitutional provision makes it clear
    that the Commission may not expend any of the State Build-
    ing Fund without a legislative appropriation.   This ap-
    propriation must be specific in nature, in view of
    Article VIII, Sec. 6 of the Constitution.   Examination of
    the appropriations made in Art. 678m, V.A.C.S., Sets. 9a
    and 18, shows that these appropriations are specific in
    nature, and leave the Commission without authority to
    divert to the State Courts Building by pledge, or obligate
    in any,o,ther manner, any of the funds appropriated for the
    specific purpose of air conditioning "the halls, offices
    and committee rooms of the House of Representatives and
    Senate in the Capitol Building."

              3. Following the authority as set out by the
    Constitu,tion, Article 678m, Section 5, V.A.C.S., provides:
Senator W. S. Fly, page 4 (WW-40)



              "The Commission is authorized
     to take any action and enter into any
     contracts necessary to provide for the
     obtaining of sites and the planning, de-
     signing, md construction of buildings and
     memorials provided for by Section 51b,
     Article III of the Constitution. . . .'

             Thus having been authorized to make contracts,
both by the Constitution and by Statutes, any contracts
made by the Commission, within the limits of the legis-
lative appropriations, are effective to bind the State.

              The restrictive nature of Article VIII, Sec-
tion 6 of the Constitution, which limits the legislative
appropriations to not more than two years and provides
that State money must be drawn from the Treasury by pur-
suance of specific appropriations made by law, has been
interpreted as being a restriction on one Legislature
making appropriations out of funds which will come into
the Treasury during the sessions of subsequent Legisla-
tures, and thus obliging every-new Legislature to de-
termine the object for which State money is spent. Thus,
an appropriation made by the Legislature can remain subject
to use, by virtue of the foregoing Article, for only two
years from the date such appropriation becomes law. This
does not mean, however, that an obligation contracted
during the period of the appropriation may not be paid
by the Treasury after the expiration of such period. If,
in fact, a claim is based upon obligations incurred
or contracted during the period of the appropriation,
such claim may legally be paid, subject only to Art.4357,
V.A.C.S.

             Art. 4357, V.A.C.S., provides in part: "No
claim shall be paid from appropriations unless presented
to the Comptroller for payment within two (2) years from
the close of the fiscal year for which such appropriations
were made, but any claim not presented for payment within
such period may be presented to the Legislature as other
claims for which no appropriations are available."

             As this article has been previously con-
strued in Attorney General's Opinions Nos. V-1416 and
V-1535a, the Comptroller may pay all claims arising out
of a valid contract entered into during the fiscal year
during which such appropriation was made, at any time
     .

“’


         Senator W. S. Fly, page 5 (WW-40)




         within two (2) years from the end of said fiscal year.
         This article, thus construed, is not inconsistent with
         Article VIII, Sec. 6 of the Constitution, since It, in
         effect, provides that a contract which legally binds the
         State Is an encumbrance and Is effective to withdraw the
         funds from the unexpended funds of the Treasury and any
         valid claim presented within the two year limitation of
         Article 4357 can "be drawn from the treasury in pursuance
         of specific appropriation made by law."

                   So long then as the Commission makes a contract
         within the biennium of the appropriation made by the Legis-
         lature, it can effectively obligate the State to pay the
         funds thus appropriated, upon valid claims arising by
         virtue of such contract, so long as they are presented
         for payment before the expiration of two years from the
         end of the period within which the appropriation is made.

                   4.   Article 86la, P.C., Sec. 1, provides:

                   "It shall be unlawful for any officer
              of this State, or any employee thereof, or
              any other person to construct, build, or
              maintain within the Campus enclos,z'e around
              the Capitol in Austin any building, memorial,
              monument, statue or concession or other
              structure, without the authority of the Legis-
              lature theretofore given by statute Er con-
              current resolution for that purpose.

                   This article was not repealed by Art. 678m,
         V.A.C.S.  However, it is noted that Sec. 12 of Art.678m,
         V.A.C.S., states, "the State Building Commission is
         hereby directed to make a careful survey of the most
         suitable site in the vicinity of the State Capitol for
         the erectlon of the said Supreme Court Building.  In
         keeping with the foregoing considerations, the Commission
         is hereby specifically authorized, if the State does not
         already own a suitable site, to acquire such a site."
         In our opinion, this is sufficient to give the Commission
         "the authority of the Legislature" mentioned in Art. 861a,
         and exempt the Commission from the penalties provided for
         in Sec. 2, Art. 861a, P.C.
Senator W. S. Fly, page 6 (~~-40)


                      SUMMARY

           1. The Building Commission was au-
     thorized to begin the State Courts Build-
     ing prior to the undertaking and completion
     of the air conditioning of the halls, offices,
     and committee rooms of the House of Represen-
     tatives and the Senate in the Capitol Build-
     lng .

          2. The Commission is without au-
     thority to divert to the State Courts Build-
     ing by pledge, or obligate in any other
     manner any of the funds appropriated for the
     specific purpose of air conditioning the halls,
     offices and committee rooms of the House of
     Representatives and Senate in the Capitol
     Building.

          3. A contract made by the State Build-
     ing Commission within the biennium of the
     appropriation made by the Legislature is ef-
     fective to obligate the payment of funds
     thus appropriated, upon valid claims arising
     by virtue of such contract, so long as they
     are presented for payment before the expira-
     tion of two years from the end of the period
     within which such appropriation is made.

          4. Article 678m, V.A.C.S., did not
     repeal Article 86la, P.C., however, it was
     sufficient to give the State Building Com-
     mission the authority of the Legislature
     to use any suitable part of the Capitol
     Grounds for the purposes therein stated.

                                Very truly yours,

                                WILL WILSON
                                Attorney General




ROS:bt
                                Bd!!?2!?*
                                    Assistant

APPROVED:

OPINION COMMITTEE


H. Grady Chandler
         Chairman
