                           AUUTXN.   TEUAU    78711
I:MAwPoRD    c. MARTlN
  ATTaD)HNlcYGECNRRAI.          December 27, 1972

       Honorable B, R. Fuller                    Opinion No,   M-1285
       Acting Executive Director
       Texas Department of Community             Re:   Questions concerning
         Affairs                                       the relationship be-
       P. 0. Box 13166, Capitol Station                tween the Building
       Austin, Texas                                   Materials and Systems
                                                       Testing Laboratory
                                                       and the Texas Depart-
                                                       ment of Community
       Dear Mr. Fuller:                                Affairs.

            In your recent request you state that certain questions have
       arisen concerning the relationship between the Texas Department
       of Community Affairs, Article 4413(201), Vernon's Civil Statutes,
       and the Building Materials and Systems Testing Laboratory,
       Article 4413(39), Vernon's Civil Statutes.

            In this connection you request our opinion on four specific
       questions:

                   (1) In Section 5(d) of Article 4413(39), was
             it the intent of the Legislature to make the
             Building Materials and Systems Testing Laboratory
             subject to the policies, controls and direct:,on of
             the Texas Department of Community Affairs, the
             successor agency to the Division of State-Local
             Relations of the Governor's Office?

             Our answer i,s "yes". Section 2(4) of Article 4413(39) defines
       the "Department" as "the Division of State-Local Relations, Office
       of the Governor or any successor agency to that Division",    The,re-
       fore,  under Section  5(d) of Article 4413(39), the B.uilding
       Materials and Systems Testing Laboratory, through ,their Techn:icai
       Testing and Evaluation Council, is subject to the policies, controls




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Honorable B. R. Fuller, page 2      (M-1285)



and direction of the Department of Community Affairs, the suc-
cessor agency.

           (2) If the Laboratory is assigned to the
     Texas Department of Community Affairs, can the
     executive director of the Department authorize
     the Comptroller's Office to issue warrants
     against department funds for the laboratory?

     Our answer is "yes". Article 4413(201), Section 5(4) and
Section 13 authorize the executive director of the Department to
"administer all moneys entrusted to the department" and I'. _. .
expend for its purposes any appropriations or grants from the
State of Texas, the federal government, or any other source . . ."
This is express authority to the Department, through its
executive director, to use department funds for laboratory pur-
poses D

           (3) In Section 6(b) of Article 4413(39), mention
     is made of "included upon any list of testing labora-
     tories formulated by the board".   In this instance,
     does "board", which is not defined by Article 4413(39),
     refer to the Council or the Department?

     Our opinion is that "board" refers jointly to the Department
and the Council. The term "board" is not defined by the Act and
the quoted sentence in Section 6(b) is the only place in the
Act that this term is used. We must ascertain the intent of the
Legislature in using the term. By the established rules of
statutory construction we must look to the context in which the
term is used and the intention and purpose as manifested in the
Act as a whole.  In Section 6(a) the overall standards for testing
and evaluation are "adopted or promulgated by the council and
approved by the department,"  This method is in essence a joint
function of the Council and Department as a "board". Using thhi.s
sense of the term then in Section 6(b) the adoption of a list of
acceptable testing laboratories would be formulated by recommenda-
tion of the Council with approval of the department as the "board".




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Honorable B. R. Fuller, page 3      (M-1285)



           (4) Section 7(b) of Article 4413(39) states that
     "All fees shall be paid to the laboratory and deposited
     for the use of the laboratory in the administration
     and enforcement of this Act." Does this restrict the
     payment of all administrative charges to those funds
     established in the State Treasury by the payment of
     fees? Or is it possible for the Texas Department
     of Community Affairs to pay necessary administrative
     charges during the start-up phase of the laboratory
     from funds budgeted for that purpose within the
     Department's regular appropriations?

     Sections '7(a) and (b) of Article 4413(39) prescribe the
authority and purpose of the establishment and collection of
laboratory fees, 'I...to pay the costs incurred in the administra-
tion and implementation of this Act." These fees should be used
first to pay the necessary administrative costs in providing the
testing and evaluation services, then any additional funds avail-
able to the Texas Department of Community Affairs may be used to
pay for the administration and implementation of Article 4413(39)
under authority of Sections 5(4) and 13 of Article 4413(201),
The Comptroller is authorized to issue warrants out of appropriated
funds for such purposes.

                      SUMMARY

             The Texas Department of Community
          Affairs is the "department" charged with
          setting policies, controls and direction
          for the Technical Testing and Evaluation
          Council of the "Laboratory" established by
          Article 4413(39), Vernon's Civil Statutes.
          The term "board" in Section 6(b) of
          Article 4413(39) means the Council and De-
          partment acting together. The "Department"
          as defined in Article 4413(39), Section 2(4),




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Honorable B. R. Fuller, page 4        (M-1285)



          through its executive director, has authority
          to pay administrative expenses of the Labora-
          tory by requesting the Comptroller to issue
          warrants out of appropriated funds for such
          purposes.




Prepared by Harry C. Green
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

W. E. Allen, Chairman
Sig Aronson
Bob Lattimore
Bill Flanary
John Banks

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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