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                               The Attorney              General of Texas
                                               October      24,   1979
MARK WHITE
Attorney General


                           Honorable Lee Drain                       Opinion No. NW-7 6
                           Texas State University System
                           505 Sam Houston Building                  Re: Coordinating Board approval
                           Austin, Texas 78701                       of    construction   project     for
                                                                     Southwest Texas State University.

                           Dear Mr. Drain:

                                  You inform us that on January 26,1977, the Coordinating Board, Texas
                           College and University System, approved construction of Phase II of a Multi-
                           Purpose Building on the campus of Southwest Texas State University. The
                           Coordinating Board gave its approval under section 61.058 of the Education
                           Code which at that time did not authorize it to consider cost of construction
                           projects in giving its approval. See Attorney General Opinion H-762 (1976).
                           Thereafter the legislature amended section 61.058(8)(A) of the Education
                           Code to provide that the Coordinating Board could consider “cost factors
                           and the financial implications” if the total cost of the project exceeded
                           $500,000. The cost of the building exceeds this figure. This amendment
                           became effective approximately seven months after the Coordinating Board
                           approved Phase II. The Commissioner of Higher Education subsequently sent
                           to the colleges and universities a memorandum containing the following
                           language:

                                      If bids on a project approved by the Coordinating
                                      Board exceed cost estimates       by more than ten
                                      percent or reduce square footage projections by more
                                      than ten percent, then the proposed project is subject
                                      to another review by the Board.

                           Bids on the Phase II project have exceeded cost estimates by more than ten
                           percent. Based on these facts, you ash the following question:

                                      Does the Board of Regents, Texas State University
                                      System, have authority    to award a construction
                                      contract for the Multi-Purpose Building, Phase II,
                                      which exceeds cost estimates    by more than ten
                                      percent, without another review by the Coordinating
                                      Board?



                                                    P.     231
Honorable Lee Drain    -      Page Two   (NW-7 6 1



The memorandum requiring a resubmission of projects when the bids exceed the
anticipated cost by more than ten percent is not a rule or regulation of the Coordinating
Board. It is merely a part of the application which colleges and universities are required
to submit to the Coordinating Board when they seek approval of building projects. It was
first used September 2, 1977, more than seven months after the Southwest Texas State
University project was approved. While the requirement set out in the application could
serve to condition approval granted after September 2, 1977, it &es not purport to affect
applications approved prior to that time. Since the requirement for resubmission appears
only in the application for approval, there is no necessity to determine whether the Board
could require projects approved before September 2, 1977, to be presented to it again for
additional review.     Accordingly, there was no requirement that the Southwest Texas
project be resubmitted to the Board.

       Even if the Coordinating Board could withdraw its prior approval, it has not done so
here. The October 19, 1979, motion to approve the project was defeated by a tie vote.
While the tie vote caused the motion to approve to fail, it did not result in a disapproval
of the project or a withdrawal of the 1977 approval. Accordingly, the 1977 approval is still
effective, and the Board of Regents of the Texas State University System has authority to
award a construction project on the basis of the Coordinating Board’s 1977 action.

                                         SUMMARY

           The Regents of the Texas State University System may award a
           construction contract based on Coordinating Board approval of the
           project secured in January, 1977.

                                                 Very truly yours,




                                                 Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Susan Garrison
and C. Robert Heath
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks


                                            P.     232
Honorable Lee Drain   -   Page Three   (MW-76)




Bob Gammage
Susan Garrison
Eva Loutzenhiser
Richard Rafes
William G Reid
Bruce Youngblood




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