                                 ,




--



                                                     The Attorney        General of Texas
          JIM MATTOX                                                October 12, 1983
          Attorney General



          Supreme      Court Building
          P. 0. Box 12546
                                                   Mr. Kenneth H. Ashworth                Opinion No. JM-77
          Austin,    TX. 76711. 2546               Commissioner
          5121475~2501                             Coordinating Board                     k?:    Whether    Coordinating
          Telex    9101674-1367                    Texas College and University System    Board has authority to approve
          Telecopier     51214754266                                                      college construction funded in
                                                   200 E. Riverside Drive
                                                   Austin, Texas   78741                  part by ad valorem tax funds
          714 Jackson.    Suite 700                                                       received under former article
          Dallas.   TX. 75202.4506                                                        VII, section 17, of the Texas
          2141742.6444                                                                    constitution

          4624   Alberta     Ave..   Suite   160
                                                   Dear Mr. Ashworth:
          El Paso, TX.       79905.2793
          9151533.3464                                  You have requested clarification of Attorney General Opinion
                                                   MW-594 (1982), which holds that construction projects for institutions
                                                   of higher education funded by state ad valorem taxes received under
-    41         Texas,    Suite 700
                                                   former article VII, section 17, of the Texas Constitution, are not
            wsto”,     TX. 77002-3171
          1131223.5666
                                                   subject to Coordinating Board approval. Although section 61.058 of
                                                   the Education Code provides that the Coordinating Board shall approve
                                                   or disapprove all new construction of facilities at institutions of
          806 Broadway.        Suite 312           higher education. projects funded under former article VII, section
          Lubbock.     TX.    79401-3479
                                                   17, of the constitution were held in that opinion to be exempted by
          6061747-5236
                                                   the constitution itself.

          4309 N. Tenth,     Suite B                    You now inquire as to what proportion of the total funding of a
          McAllen,     TX. 76501.1665              project must derive from state ad valorem taxes in order to exempt it
          5121662.4547
                                                   from the requirement of Coordinating Board approval under section
                                                   61.058(B) of the Education Code.
          200 Main Plaza, Suite 400
          San Antonio.  TX. 76205.2797                  In our opinion, Attorney General Opinion NW-594 was incorrectly
          5121225.4191                             decided. Article VII, section 17 was repealed at the November 2, 1982
                                                   election. Article VIII, section l-e of the Texas Constitution was
          An Equal      Opportunity/
                                                   amended at the same election to provide as follows:
          Affirmative     Action     Employer
                                                                sec. l-e. 1. No State ad valorem taxes shall
                                                             be levied upon any property within this State.

                                                                2. All receipts from previously authorized
                                                             State ad valorem taxes that are collected on or
                                                             after the effective date of the 1982 amendment to
                                                             this section shall be deposited to the credit of
-e                                                           the general fund of the county collecting the




                                                                           p. 325
Mr. Kenneth H. Ashworth - Page 2 (JM-77)




          taxes and may be expended for county purposes.
          Receipts from taxes collected before that date
          shall be distributed by the legislature among
          instit"tions eligible to receive distributions
          under prior law.    Those receipts and receipts
          distributed under prior law may be expended for
          the purposes provided under prior law or for
          repair and renovation of existing permanent
          improvements.

     The recently enacted constitutional amendment changes the mode of
distribution of the ad valorem tax funds from that formerly dictated
by article VII, section 17. See Attorney General Opinion H-1129
(1978). Under article VIII, Zion         l-e, tax receipts collected
before the effective date of the amendment are to be appropriated by
the legislature and projects constructed with those funds are subject
to Coordinating Board approval to the same extent that other
legislatively appropriated funds for college construction are subject
to such approval. See Jessen Associates, Inc. v. Bullock, 531 S.W.2d
593 (Tex. 1976).   -

     The new constitutional amendment states with respect to receipts
distributed under prior law, that is, article VII, section 17, that
they "may be expended for the purposes provided under prior law or for
repair and renovation of existing permanent improvements." The new
provision preserves the purposes for which funds could be spent under
former article VII, section 17. It does not preserve the language
that rendered article VII, section 17 "self-enacting." Thus, any
language of article VII, section 17, which might have excepted ad
valorem tax funds from the requirements of section 61.058(B) of the
Education Code is no longer in effect.   Construction projects are not
excepted from Coordinating Board approval under section 61.058(B)
merely because they are funded in whole or part with ad valorem tax
funds. Cf. Attorney General Opinion MW-245 (1980). Of course, if the
project z   be funded by these receipts has been approved by the
legislature, Coordinating Board approval will be unnecessary. See
Attorney General Opinion MW-520 (1982).

     Thus, the answer to your question is that Coordinating Board
approval is required for all construction projects even if they are
funded in whole or in part from ad valorem tax funds. Attorney
General Opinion MW-594 is hereby overruled.

                            SUMMARY

             Construction projects are not excepted from
          Coordinating Board approval under section 61.058
          of the Education Code merely because they are
          funded in whole or in part from ad valorem tax




                                 p. 326
     Mr. Kenneth H. Ashworth - Page 3     (JM-77)


-1




               funds.   Attorney    General      Opinion   Mw-594   is
               overruled.




                                                 JIM     MATTOX
                                                 Attorney General of Texas

     TOM GREEN
     First Assistant Attorney General

     DAVID R. RICHARDS
     Executive Assistant Attorney General

     Prepared by Susan Garrison &
     Rick Gilpin
     Assistant Attorneys General

     APPROVED:
     OPINION COMMITTEE
--
     Rick Gilpin, Chairman
     Jon Bible
     David Brooks
     Colin Carl
     Susan Garrison
     Jim Moellinger
     Nancy Sutton




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