Honorable Robert S. Calvert
Comptroller of Public.Accounts
Austin, Texas
                             Opinion No. C-536
                             Re:     Construction of interagency
                                     contract between the Texas
                                     Department of Mental Health
                                     and Mental Retardation and
Dear Mr. Calvert:                    the State,Building Commission.
      Your request for an opinion reads as follows:
           "I am endlosing an account payable to
      the State Building Commission In the amount
      of $1,395.9&, Incurred under an interagency
      contract with the Texas Department of Mental
      Health and Mental Retardation. A copy of the
      interagency agreement is attached.
            "You will please advise if accounts incur-
      red under this contract would be legal charges
      against the following appropriation made to the
      Department of Mental Health and Mental Retarda-.
      tion which is found on page 21, Item 24, Article
      II of Rouse Bill #12, Acts of the 59th Legisla-
      ture.
           "'Salaries of Classified Positions (exclud-
      ing Legal and Claims Division)..........,$334,506.00’
           "A breakdown of the account shows that the
      amount of the claim,,$1,395.94, is to be deposit-
      ed in the appropriation to the Building Commission
      in the,followin manner.   'Professional fees and
      services', $1,1&2.00 'Travel expense', $253.94.
      Both appropriation a&ounts being itemized appro-
      priations of the Building Commission.
            "If your answer to the above question is in
       the negative, would payments under the contract be


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Hon. Robert S. Calvert, page 2 (C-536)


       governed by this provision which is found on
       Page 27 of the Appropriation Bill and reads
       as follows:
           "'Said Department Department of Mental
      Health and Mental Retar6,tion) is authorized
      to pay from the respective items under the
      State Hospitals and Special Schools Building
      Program the salary and travel of construction
      project inspectors and the salaries of mechanics
      and laborers as may be required. Such construc-
      tion project inspectors may be employed under
      the titles of Clerk of the Works I (9096) and
      Clerk of the Works II (9097).'
            "If you advise that the account is payable
      out of the classified salary appropriation, could
      the proceeds Abe deposited in the manner requested
      or must the deposits be a reimbursement to the
      appropriation out of which the employees were.,
      paid?
       Subdivisions (A), (B), (E) and (G) of Section 5 of House
Bill 37, Acts of the 59th Legislature, Regular Session, 165,
Chapter 455, page 926, compiled in Vernon's as Article 67%f,
Vernon's Civil Statutes, and known as the State Building Construc-
tion Administration Act, provide as follows:
           "(A) The State Building Commission is here-
      by designated as the administering agency and shall
      exercise the powers and duties conferred upon it
      by this Act in addition to all powers, duties and
      responsibilities previously conferred upon it by
      Acts of the 54th Legislature, Regular Session, 1955,
      Chapter 514, as amended (compiled as Article 678m,
      Vernon's Annotated Civil Statutes), and the provisions
      of such Act, as amended, shall apply where pertinent
      to all construction under the provisions of this Act.
      The Commission shall be the coordinating authority
      for the construction of any multiagency State office
      buildings which the Legislature may, from time to
      time, authorize.
            "(B) The,Commission shall, subject to the
       provisions of the Appropriaticn Act and such General
       Laws as may apply, employ professional, technical
       and clerical personnel. In selecting such personnel,
       the Commission shall give first preference to persons
       currently employed in the hgineering Section of the
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Hon. Robert S. Calvert, page 3 (C-536)


     State Board of Control and in the Design and
     Construction Division of the Board for Texas
     State Hospitals and Special Schools."
         "(E) The operating expenses of the State
    Building Commission shall, unless otherwise
    specified by the Legislature, be paid from
    appropriations made out of the State Building
    Fund. The State Building Fund shall be re-
    imbursed for such expenditures from the funds
    appropriated by the Legislature for projects
    supervised by the Commission. In order that
    each project shall bear its fair and proper
    share of the Commission's expenses, the Com-
    mission shall Institute and maintain a cost
    accounting system which shall be devised by
    the State Auditor as soon after the effective
    date of this Act as possible."
         "(G) On or before the first working day
    of the fiscal year beginning September 1, 1965,
    all files, records, equipment, furnishings and
    personal property of all kinds heretofore used
    by the Engineering Section of the Building En-
    gineering and Management Division of the State
    Board of Control and by the Design and Construc-
    tion Division of the Board for Texas State Hospi-
    tals and Special Schools shall be transferred to
    ,theCommission. The Commission shall agree with
    the State Board of Control and with the Board
    for Texas State Hospitals and Special Schools on
    the personal property to be transferred and shall
    evidence such agreement in a written inventory to
    be signed by representatives of the Commission
    end the respective Boards. The agreement when
    so signed shall be full authority (1) for the
    Commission to transfer the personal property list-
    ed thereon to Its control and (2) for the Comp-
    troller of Public Accounts to enter any inventoried
    items on the property Inventory records of the
    Commission and to delete the same items from the
    property inventory records of the State Board of
    Control and of the Bzard for Texas State Hospitals
    and Special Schools.
         Subdivision (D) of Section 7 of House Bill 37,   pro-
vides:



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Hon. Robert S. Calvert, page 4 (C-536)


         "(D) There is hereby appropriated out of
    the General Revenue Fund to the State Building
    Commission for the Implementation of the 'Build-
    ing Construction Administration Act' for an
    Archaeologist the sum of Twelve Thousand Dollars
     $12,000) each fiscal ear, four Project Analysts
    tnot to exceed $12,0003 the sum of Forty-four
    Thousand Dollars ($44,000) each fiscal year.
    Salaries of Classified Positions the sum of One
    Hundred Thousand Dollars ($100,000) each fiscal
    year, Professional Fees and Services, Fifteen
    Thousand Dollars ($15,000) each fiscal year and
    unexpended balances of the first year of the bi-
    ennium, Travel Expenses, Fifteen Thousand Dollars
    ($15,000) each fiscal year and unexpended balances
    of the first year of the biennium, Other Operating
    Expenses, Fifty Thousand Dollars ($50,000) each
    fiscal year and unexpended balances of the first
    year of the biennium. The combined sum for the
    biennium from the General Revenue Fund shall be
    Four Hundred Seventy-two Thousand Dollars
    ($472,000)."
          Pursuant to the authority vested in the State Building
Commission by the provisions of Section 5 of House Bill 37,
Acts of the 59th Legislature, Regular Session, 1965, and the
provisions of Article 678m, Vernon's Civil Statutes (See At-
torney General’s Opinion WW-1120 (1961)),the State Building
Commission and the Department of Mental Health and Mental Re-
tardation, successor to the Board for Texas State Hospitals
and Special Schools, entered into a contract whereby reimbur-
sement was to be made to the State Building Commission for
services rendered on construction projects previously entered
into by the Board for Texas State Hospitals and Special Schools.
          It Is noted that the appropriation to the Department
of Mental Health and Mental Retardation contained certain
classified positions now under the jurisdiction of the State
Building Commission by virtue of the provisions of House Bill
37 of the 59th Legislature. Since House Bill 37 specifically
provided for reimbursement to the State Building Commission
for expenditures'for projects now supervised by the Commission,
it was necessary to enter into the contract in question in order
to assure that the projects under construction would continue to
have qualified supervision. The contract provides as follows:
          "Pursuant to authority provided In Chapter
     514, Acts, Fifty-fourth Legislature, Regular


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Hon. Robert S. Calvert-,,.page~5~~(G-536)
                                        '~


     Session, and Attorney,Generall,s,OpinionNo.
     WW-1120, 1961, this agr’eemerit 'is entered into
     by the,Sta,te~~Bullding.Commission,.actlng  through
     its Executive.Director3   and the ~Department of
     Mental Health and Mental.Retardation, acting
     through its.Aoting Commissioner.
          %HEREAS, proper,and workmanlike construc-
     tion is'pequ,iredln.all structures erected by
     the State.of Texas; :and   'y
          "WHEREAS, economical, proper and workman-
     like construction can best be insured by quall-
     fied supervision during~the construction phase;
     and
         'WHEREAS, the, Department of Mental Health
    and Mental Retardation has current construction
    projects on which continuing qualified super-
    vision Is required, and on which Clerks of the
    Works are presently employed;
          'Now, Theref,ore,It is agreed by and be-
     tween the parties hereto that effective September
     1, 1965 the Department of Mental Health and Mental.
     Retardation agrees to reimburse the State Building
     Commission for these services for the fiscal year
     beginning September 1, 1965 in the maximum amount
     of Sixteen Thousand One Hundred Fifty-two and OO/lOO
     Dollars ($16,152.00).
         "THIS AGREEMENT shall continue on a month to
    month basis, in whole or in part, and may be termi-
    nated by the mutual consent of both parties.
          "IN WITNESS WHEREOF the ,covenant .herein des-
     cribed Is made this 1st day of September,~1965."
          You are therefore advised that the account payable
to the State Bulldlng Commission, incurred under the interagency
contract with the Texas Department of Mental Health and Mental
Retardation is a legal charge against the appropriation in
House Bill No. 12 for 'Salaries of Classified Positions (ex-
cluding Legal and Claims Division)" and the proceeds can be
deposited in the following Itemized appropriations to the
Building Commission: "Professional fees and services' and
%ravel expense."




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Hon. Robert S. Calvert, page 6 (C-536)


                      SUMMARY
          The account payable to the State Building
     Commission, incurred under the interagency con-
     tract with the Texas Department of Mental Health
     and Mental Retardation is a legal charge against
     the appropriation in House Bill No. 12 for "Salaries
     of Classified Positions (excluding Legal and Claims
     Division)" and the proceeds can be deposited in the
     following itemized appropriations 'to the Building
     Commission: "Professional fees and services' and
     'Travel expense."
                             Very truly yours,
                             WAGGONER CARR
                             Attorney General




                                  Assistant
JR:ms:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Malcolm Quick
Paul Phy
John Banks
Tom Routt
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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