Honorable C. P. McElhlnney          Opinion   No. C-690
Senior Vice President & Treasurer
University of Houston               Re:   Whether the University
Cullen Boulevard                          of Houston is required
Houston, Texas 77004                      to take out building
                                          permits covering either
                                          new construction of
                                          buildings or remodeling
                                          and repairs to existing
                                          buildings and related
Dear Mr. McElhlnney:                      questions.
          Your recent letter to this office Informs us that
the~rUniverslty of Houston now owns, or Is In the process of
acquiring,, property located within the cities of Houston,
LaMarque and Clear Lake. In connection with such property,
the University of Houston has certain building projects under
actual construction or in the active planning stage. These
projects Include botn new construction and remodeling of
existing buildings.
          You also state in your letter that these munlcipalltles
are lnslstlng that their ordinances and codes relating to
building permitsand construction apply to the-projects in
question. In view of these circumstances, you have requested
the opinion of this office as to whether:

           "(1) The University of Houston Is required
     to take out building permits covering either new
     construction, or remodeling and repairs.

          "(2) The building code of the respective
     munlcipallties is applicable to construction and
     to the Installation of electrical, plumbing,
     heating and air conditioning facilities.
          “(3) Final Inspection and approval by a
     municipal Inspector is required."

          Although you ask three questions, the single proposition
presented for our consideration is whether the building codes
provided by the ordinances of a home rule city apply to construction
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Ron. C. F. McElNnney,   page 2 (c-690)


repair and remodeling projects undertaken by the University of
Houston on property owned by that Institution?
          Article 1175 of Vernon's Civil Statutes grants to
home rule cities "full power.of local self-government;" hong
those powers specifically enumerated in Article 1175 are the
following:

          "25. To provide for the establishment and
     designation of fire limits and to prescribe the
     kind and character of buildings or structures
     or improvements to be erected therein, and to
     provide for the erection of fire proof buildings
     within certain limits, and ~to provide for the
     condemnation of dangerous structures or buildings
     or dilapidated buildings or buildings calculated
     to Increase the fire hazard, and the manner of
     their removal or destruction.
          "26. To divide the city in zones or
   ..-
     districts, and to regulate the location, size,
     height, bulk and use of buildings within such
     zones or districts and to establish building
     lines within such iones or districts or other-
     wise and make different regulations for
     dlff&ent districts and thereafter alter the
     same. . . .l(
          The validity of the ordinances which the munlcipalltles
s.eekto enforce Is not questioned. We assume, for purposes of
this opinion, that such ordinances were duly pr6mulgated and
adopted In accordance with applicable statutory provisions and
in furtherance of the powers granted to home rule cities by
the legislature. Ordinances of this nature constitute an
exercise of the police power. Klrechke Y. City of Houston
330 S.W.2d 629 (Tex,Civ.App. 1959, error ref. n.r.e.).
          It Is a well established rule that municipal ordinances
regulating the construction, repair and equipment of buildings
do not apply to projects undertaken by the state or Its aaents



                                                                 ier
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  .

Hon. C. F. McElhlnney, page i (c-690)


S.E 2d 676 (1950); accord: Ex parte Means 14 Cal.2d 254 93
P.2d 105 (1939); Newton v. City of Atlanta' 189 Ga.       6.S.E.2d
;lW(;z395/&
 .          Cl;;20f
             1    . Frankfort v. Commonwealth, 243 Ky.
                                                     441,
                                                       633, 49

          The rationale of these decisions Is the ultimate right
of the state to act with regard to property:~whichthe state
owns and controls without interference from or regulation by
a subordinate entity which was created by the state and derlv&
all of its power and authority from the state.
           "* l l /rRhe state will not be presumed
      to have waivx its right to regulate its own
      property, by ceding to the city the right
      generally to pass ordinances of a police nature
      regulating property within Its bounds. l **
      The principle Is that the state, when creating
      municipal governments, does not cede to them
      any control of the state's property situated
      within them, nor over any property which the
      state has authorized another body or power
      to control. The municipal government is but
      an agent of the state--not an independent body.
      It governs in the limited manner and territory
      that is expressly or by necessary lmpllcatlon
      granted to It by the state. It Is competent
      for the state to retain to Itself some part.
      of the government even within the municipality,
      which it will exercise directly, or through
      the medium of other selected and more suitable
      instrumentalities. How can the city have-ever
      a superior authority to the state over the
      latter's own property, or In Its control and
      mananement? From the nature of thlnas It cannot
      hive," Kentucky Institute For Education of Blind
      V. city of Louisville, 123 Q. 761, 97 S.W. 402,
      404 (1906).
          While this rule was expressly recognized by the
Supreme Court of Texas In Port Arthur Ind. Sch. Dist. v. City
of Groves, 376 S.W.2d 330 ITex. 1964) it was held that th
buildings erected by an independent &hool district are su:ject
to the regulatory ordinances of the municipality In which they
are located. This result was the consequence of the court's
conclusions at page 333 of the opinion:
          II   .mndependent   school districts
     are lndepenxnt political entitles and we will'
     not classify their property as state property.
     . . . The Legislature . . . made no provision
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     Hon. C. F.   McElhlnney, page 4   (C-690)


          whatsoever that they should regulate, Supervise
          or control In any manner the building of school
          buildings and provided for no safety regulations
          for the protection of the occupants or the
          property of others In the vicinity of the school
          buildings." (Emphasis added)
                                                                ..
     Compare School Dlst. of Philadelphia v. City of Philadelphia,
     417 Pa. m,   207 A.2d 864 (19651.
               In view of the decision In the City of Groves case
     it becomes Important to determine whether or not property owned
     and controlled by the University of Houston IS classified as
     state property.
               On the 1st day of September, 1963, the Unlverslty.of
     Houston an existing privately endowed institution, became a
     state &titutlon   of higher learning. S.B. No. 2, Acts 57th
     Leg., 1961 ch. 370, p. 811. It receives funds appropriated
     from the Tceasury of the-State of Texas. H.B:No. 86 Acts      .
                1963 ch 525 p. 1607; H.B. No. 12, Acts 19th Leg.,
     ;f:" k;&   ch. 720 'p..1887. And Is apportioned parts of a
     special t:x levied'for the benefit of certain state Institutions
     of higher learning. Tex. Const., Art. VII, Sec. 17.
               Section 15 of Article 2615g of Vernon9   Civil Statutes
     reads as follows:
               "Prom and after the operative date of this
          Act the University of Houston herein created
          shail be subject to the obligations and entitled
          to the benefits of all General Laws of Texas
          applicable to all other state lnstltutlons of
          higher learning, except where such.General Laws
          are In conflict with this Act and In such
          Instances of conflict this Act shall prevail
          only to the extent of such conflict."
               The organization and control of the University of
     Houston Is vested In a nine member board of regents appointed
     by the Governor of Texas with the advice and co,nsentof the
     Senate. Each member of the board must take the oath of office
     prescribed by the Constitution of Texas. The board Is directed
     to "enact.such by-laws, rules and regulations as may be necessary
     for the successful management and government of the University."
     Art. 2615g, Sec. 2, V.C.S.


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,-
Ron. c. F. McElhlnney, page 5   (C-69rJ)




          All of the property owned by, or held for, the
University of Houston, prior to Its becoming a state Institution
of higher learning was donated to the Board of Regents of the
University of Houston created by Article 2615g of Vernon's
Civil Statutes. Section 8 of Article 2615g specifically provides
that "the University of Houston created by this Act shall hold
title to'all properties SO conveyed and shall commence operations
of such properties for the use and benefit of the State of
Texas." (Emphasis added)
          Section 10a of Article 2615g vests in the board of
regents the power of eminent domain "to acquire'for the use
of the Unlverslty of Houston such lands as may be necessary
and proper for carrying out its purposes as a State-owned and
operated Institution of higher education." ‘(Emphasisadded)
          The board of regents is authorized to construct,
acquire, Improve, enlarge, repair and equip all types of
buildings, gymnasia, and stadla as may be needed for the good
of the University of Houston, when the total cost, type and
Plans and specifications have been approved by the board.
Art. 2615g, Sec. 11, V.C.S.
          In our opinion the constitutional and statutory
provislons to which we have referred clearly dispel1 all doubt
that the property owned and controlled by the Board of Regents
of the University of Houston Is state property. The board is
an agency of the state subject to legislative control and
all property owned by It is held solely as the represe&atlve
of the state.
299, 356 P.2d 3
Blind v. City of Louisville, 123 Ky. 767 97 S W 402 (1906)
City of Milwaukee v. McGregor, 140 Wls. 55, 12i R.W. 642 (19;s).
           We are likewise convinced that the board of regents
 has been vested with discretionary power with regard to cost,
 type, location, plans and specifications for the construction
 and repair of buildings and structures owned or to be owned by
the University of Houston. Cf. Splawn v. Woodard, 287 S.W.
 677 (Tex.Clv.App. 1926, no history). The discretion of the
 board of regents in this regard Is subject only to such
 conditions and restrictions as are Imposed by our constitution
 and the enactments of the legislature. In this connection, we
 specifically point out that Section 15(7) of Article 2919e-2
 of Vernon's Clvll Statutes requires that certain building
 projects proposed by the various lnstltutlons of higher learning
 be approved by the Coordinating Board, Texas College and
 University System. The extent to which thls latter statutory
 provlslon affects the building projects proposed by the various
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                                                 ,
non. C. F. McElhlnney; page 6 (C-690)


Institutions of higher learning has been construed by this
office in Attorney General's Opinion C-686 (1966).
          Having determined that the property owned and'
controlled by the University of-Houston is State-owned ~property
and that the planning, location construction, repair and
equipping of building projects is within the limits noted
above a matter vested In the boa;d of regents of such
lnstlfution by the legislature we are not compelled to
follow the decision in Port Arthur Ind. Sch. Dist. v. City
of Groves, supra.
          A coordinated, efficient and effective system of
higher education Is a matter of state-wide concern. This
concern was ciearly expressed by the legislature in Sedtion 1
of Article 2919e-2 of Vernon's Civil Statutes which reads as
follows:
          "This Act shall be known as the Higher Education
     Coordinating Act of 1965. Its purpose is to
     establish in the field of public higher education
     In the State of Texas an agency to provide leadership
     and coordination for the Texas higher education
     system, institutions and governing boards, to
     the end that the State of Texas may achieve
     excellence for college education of its youth
     through the efficient and effective utilization
     and concentration of all available resources
     and the elimination of costly duplication .
     in program offerings, faculties and physical
     plants."
          Municipalities have been given no responsibilities
in the field of higher education and their ordinances regulating
?.ocatlon,construction and design of buildings were enacted
without specific consideration for the needs of state institutions
of higher learning. Such ordinances are primarily concerned .
with the location of residences parks, factories, warehouses
businesses, and the constructto; of same with safety and bene#it
to the community and its citizenry. This Is a matter of local
concern and the plans and efforts of the state In the pursuit
of excellence in the field of higher learning are not to be
subjugated to the regulatory powers of municipalities.
          The case of Board of Regents v. City of Tempe 88 Ariz.
299, 356 P.2d 399 (1960) is, to our minds, squarely in'point
upon the question before'us. We consider It to be a well
reasoned oplnlon and in following it we hold that the municipal
                          -3319-
Hon. C. F. McElhinney, page 7 (C-690)


ordinances in question are not applicable to the building.
projects Inquired about.
          In Port Arthur Ind. Sch. Dist. v. City of Groves
the court expressed the fear that buildings erected by indipi%EzC
school districts would constitute a threat to the health and
safety of the community If they were not regulated by municipal
building ordinances. We do not view the prospect of the develop-
ment and expansion of the physical facilities of the various'state
institutions of higher learning unrestrained by the regulatory
ordinances of the various munlclpallties within which such
Institutions may be located, as a threat to the safety and
health of the community. The‘state is the ultimate authority
responsible for the protection of the health, safety and welfare
of Its citizens and we will not Presume that the state or the
designated governing boards of its institutions of higher
learning will, In the pursuit of educational excellence, so
plan and expand the facilities Of these institutions as to be
unmindful of the health and safety of the community Involved.
The following statement of the court In the CLt
       Is particularly appropriate to this aspec

            "There Is nothing to suggest that the Board
     will supervise the University's construction program
     with less concern for the public welfare than
     would the City. Indeed we may well assume that
     this .Court's determination of the scope of the
     Board's dutles.wlll be followed by an appreciation
     of the responsibilities generated thereby.' It is
     thus unnecessary for us to consider or enumerate
     the judicial and other remedies available to
     insure   that the Board or any other state or
     municipal agency, performs Its duties in a manner
     consistent with the health safety and general
     welfare of the people of this State.
          "We hold that the City of Tempe may not
     apply its building codes and regulations to
     Arizona State University." 356 P .2d 407.
          Therefore, you are hereby advised that the municipal
ordinances regulating location, construction, design, equipping
and inspection of buildings and structures within such munici-
palltles do not apply to projects undertaken by the University
of Houston on land owned by such institution. Our conclusion
upon this question Is also supported by Attorney General's
Opinions V-977 (1949) and C-301 (1964), both of which are
hereby affirmed.
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Hon. C. F. McElhlnney, page 8 (c-690)“


                       SUMMARY
         ,Municlpal ordinances regulating the location,
     size design, height, constructlon, equipping
     and lnspectlon of new buildings or the remodeilng
     and repair of existing buildings, do not apply
     to projects undertaken by the state on property
     owned by the state. The University of Houston
     is a state Institution of higher learning, created
     and controlled'by the state. Its property is       .
     state property, therefore the erection remodeling,
     or repair of buildings by the University of Houston
     is not regulated by the ordinances of the munici-
     palities within which they are located.
                              Very truly yours,
                              WAGGONER CARR
                              Attorney General




WOS:ra:ml
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John .Reeves
Pat Bailey
James Strock
Llnward Shivers
APPROVEDFORTHE   ATTORNEY GENERAL
BY: T. B. Wright




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