c   :




                     THE    ATTORNEY             GENERAL
                                 OF    TEXAS



                                  May 19, 1969


    Honorable Harry B. Kelton, Director            Opinion No. M- 396
    Texas National Guard Armory Board
    West Austin Station
    Austin, Texas 70703                            Re:   Whether the Texas
                                                         National Guard
                                                         Armory Board can
                                                         act independently of
                                                         the State Building
                                                         Commission in the
                                                         awarding of construction
                                                         contracts on the basis
                                                         of open-market sealed
                                                         bids for armory constru-
                                                         tion and related
        Dear Mr. Kelton:                                 questions.

                     Your request for an opinion asks the following
        questions:

                  "In your opinion, can the Armory Board act
             independently of the State Building Commission on
             the following functions?:

                  "1. The development of armory construction
             and related projects.

                    "2 . The selection of a qualified registered
             architect or engineer and awarding an architect-
             engineer contract for design and construction super-
             vision    of armory and related projects.

                  "3 . The awarding of construction contracts
             on the basis of open-market sealed bids for
             armory construction and related projects.




                                       - 1966-
                                                            :   ,




Honorable Harry B. Kelton, page 2 (M-396)

          "In the event your opinion is affirmative
     on any of the above functions, can the State
     Comptroller legally draw warrants, payable from
     funds in the State Treasury, in payment of such
     services and/or contracts?"

          The powers of the State Building Commission, in
regard to State building projects, are prescribed in
Article 670f, Vernon's Civil Statutes, known as the State
Building Construction Administration Act. The purpose of
said act is set out in Section 1 as follows:

          "The purpose of this Act is to provide for
     the orderly planning of buildings constructed by
     the State, to provide for adequate inspection
     in the State's interest of building construction
     work in progress, and to provide for reasonably
     accurate projections of building program require-
     ments, and estimates of the cost of proposed proj-
     ects prior to legislative appropriations or
     specific authorizations for the construction and
     equipping of such projects.

          "The Legislature hereby declares that the
     policy of the State of Texas in regard to proj-
     ects constructed under the provisions of this
     Act shall be to provide requisite physical facili-
     ties for the operation of State government in an
     architectural form which will represent the
     dignity of the State of Texas and which shall
     be aesthetically pleasing. Designs shall adhere
     to established construction practices and utilize
     materials, methods and equipment of proven de-
     pendability to the end that projects shall be
     economical to construct, operate and maintain."

          Section 3 of Article 678f provides certain
exceptions not applicable to your request.  In addition
to the projects excluded by Section 3, Section 4 makes
additional exclusions.  Section 4 provides in part:

                           - 1967-
Honorable Harry B. Kelton, page 3     (M-396)

          "In addition to the projects excluded by
     Section 3 of this Act, it is specifically pro-
     vided that nothing in this Act shall apply to:

          "(A) Projects constructed by or under the
     supervision of any public authorities created
     by the laws of this State, or

           . . .3,
          !,

          The powers of the Texas National Guard Armory
Board are contained in Title 97A of the Revised Civil
Statutes of Texas, 1925, as amended, being Articles 5931-l
through 5931-13, Vernon's Civil Statutes. The general
powers of the Texas National Guard Armory Board are stated
in Article 5931-4, as follows:

          "The board shall constitute a public authority
     and a body politic and corporate and shall possess
     all powers necessary for the acquisition, construction,
     rental, control, maintenance, and operation of all
     Texas National or Texas State Guard Armories, including
     all property and equipment necessary or useful in
     connection with the armories."

          In addition to the general powers of the Texas
National Guard Armory Board, Article 5931-5 provides certain
specific powers of the Armory Board, as follows:

          "The board shall possess but is not limited
     to the following powers:
          #I
               .   .   .




          "(2) to enter into contracts in connection
     with any matter within the objects, purposes or
     duties of the board. . .
          #I
               .   .   .




                           - 1968 -
                                                                i   :




Honorable Harry B. Kelton, page 4       (M-396)

          "(7) to construct buildings on any of its
     real property, whether held in fee simple or
     otherwise, and to furnish and equip the same and
     to hold, manage and maintain all of said property.   . .

          "(8) from time to time, to borrow money,
     and to issue and sell bonds, debentures, and other
     evidences of indebtedness for the purposes of
     acquiring one or more building sites and buildings,
     and for the purpose of constructing, remodeling,
     repairing, and equipping one or more buildings,. . .



          Articles 5931-4 and 5931-5, Vernon's Civil Statutes,
are articles dealing specifically with specified powers of
the Texas National Guard Armory Board, while Article 678f.
Vernon's Civil Statutes, applies to State building construction
generally. Also, the provisions of Articles 5931-l through
5931-13 were enacted subsequent to Article 678f. Furthermore,
Section 4 of Article 678f specifically excludes projects
constructed by or under the supervision of any public authority
created by the laws of this State. The Texas National Guard
Armory Board by statutory definition (Article 5931-4) is
such public authority.

          You are therefore advised that the Armory Board
has the power and authority to act independently of the State
Building Commission on the items and activities referred
to in your request, namely, the development of armory
construction and related projects: the selection of a
qualified registered architect or engineer and awarding an
architect-engineer contract for design and construction
supervision of armory and related projects: and the awarding
of construction contracts on the basis of open-market sealed
bids for armory construction and related projects-




                           -   1969 -
Honorable Harry B. Kelton, page 5     (M-396)

          In answer to your last question, you are advised
that the Comptroller of Public Accounts may legally draw
warrants, payable from funds in the State Treasury, appro-
priated to the Armory Board for such purposes in the pay-
ment of such services and/or contracts.

                   SUMMARY

          Pursuant to the provisions of Article 5931-4
     and 5931-5, Vernon's Civil Statutes, the Texas
     National Guard Armory Board may act independently
     of the State Building Commission on the development
     of armory construction and related projects: the
     selection of a qualified registered architect or
     engineer and awarding an architect-engineer con-
     tract for design and construction supervision of
     armory and related projects: and the awarding of
     construction contracts on the basis of open-market
     sealed bids for armory construction and related
     projects.

          The Comptroller of Public Accounts may legally
     draw warrants, payable from funds in the State
     Treasury, appropriated to the Armory Board for such
     purposes in the payment of such services and/or
     contracts.

                               Youm   very truly,




                                         General of Texas

Prepared by John Reeves
Assistant Attorney General




                             -1970-
Honorable Harry B. Kelton, page 6 M-396)



APPROVED:
OPINION COHMITTBE

Kerns Taylor, Chairman
George Kelton, Co-Chairman
Marvin Sent011
Sam McDaniel
Rex H. White
Wardlow Lane

W. V. Geppert
Staff Legal Assistant

Hawthorne Phillips
Btecutive Assistant




                             -1971-
