                     September     14, 1970


Honorable Ben Barnes                  Opinion No. M-695
Lieutenant Governor of Texas
Honorable Gus Mutscher                 Re: Authority of the Senate
Speaker of the House of                    and House of Representa-
  Representatives                          tives to enter into a con-
Austin, Texas                              tract direct with the State
                                           Building Commission for
                                           certain "building repair
                                           and remodeling" and to pay
                                           certain funds for such ser-
                                           vices.
Gentlemen:

     In your letter requesting an opinion from this office, you
submit the following fact:

          "In House Bill No. 2, Pets of the 61st Legis-
     lature, Second Called Session,*the Senate and House
     of Representatives have appropriations provided to
     them which in part permit 'building repair and re-
     modeling and other expenses' of the Senate and House
     of Representatives,“

     With regard to this fact you ask the following question:

          "Do the Senate and House of Representatives
     have the authority to enter into a contract direct
     with the State Building Commission for 'building re-
     pair and remodeling' and to transfer to the Building
     Commission such portion of said appropriated funds
     as are necessary to pay for such building repairs
     and remodeling under the terms of the contract?"


*    General Appropriation   Act


                                 -3354-
Hon. Ben Barnes, Hon. Gus Mutscher, page 2        (M-695)


     Section 51-b, Article III, Texas Constitution, added Novem-
ber 2, 1954, created the Texas Building Commission.  Paragraph (b)
of Section 51-b states, in part, as follows:

          "Sec. 51-b(b) The State Building Fund is
     hereby created. . . This provision is self-enacting.
     The State Building Fund shall be expended by the
     Commission upon appropriation by the Legislature for
     the uses and purposes set forth in subdivision (c)
     hereof."

Paragraph (c) of Section 51-b of Article III of the Texas Con-
stitution provides as follows:

          "(c) Under such terms and conditions as
     are now or may be hereafter provided by law, the
     Commission may acquire necessary real and personal
     property. salvage and dispose of property unsuitable
     for State purposes, modernize, remodel, build and
     equip buildings for State purposes, and negotiate and
     make contracts necessary to carry out and effectuate
     the purposes herein mentioned."

     Article 678m, Vernon's Civil Statutes, was enacted pursuant to
Section 51-b, Article III, Texas Constitution.  The provisions of
Article 618m most pertinent to our discussion are quoted as follows:

          "Section 1. The State    Building Commission
     . . . is hereby declared to   be a State agency for
     performing the governmental   functions outlined in
     Section 51-b of Article III   of the Constitution of
     the State, . ..

          "Section 3. . .. Under such terms and con-
     ditions as may be provided by law, the Commission
     may acquire necessary realand personal property,
     modernize, remodel, build and equip buildings for




                              -3355-
Hon. Ben Barnes, Hon.   GUS   Mutscher,    page 3   (M-695)


     State purposes, and make contracts necessary to
     carry out and effectuate the purposes herein
     mentioned in keeping with appropriations authorized
     by the Legislature ..."

          #I...

          "Section 5. The Commission is authorized
     to take any action and enter into any contracts
     necessary to provide for the obtaining of sites
     and the planning, designing and construction of
     the buildings and memorials provided for by
     Section 51-b, Article III of the Constitution,
     and the Commission is also authorized to take any
     action and enter into any contracts to obtain sites
     which it deems necessary in order to provide for
     the orderly future development of the State Build-
     ing Program which is contemplated by this Act,
     insofar as appropriations permit. . ."

     Attorney General's Opinion WW-llZO(1961) held that the pro-
visions of Section 5, supra, and Section 8 of Article 678m.
Vernon's Civil Statutes, would constitute sufficient authority
for the State Building Commission to obtain the services of and
enter into contracts with other State agencies and that "con-
tracts entered into by the State Building Commission with other
State agencies pursuant to the provisions of Article 678m do not
require the approval of the Board of Control."

     Article 678f, Vernon's Civil Statutes, is known as the "State
Building Construction Act." The purposes of the Act are stated
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 requirements, and estimates of the




                                  -3356-
Hon. Ben Barnes, Hon.   GUS   Mutscher,    page 4   (M-695)


     cost of proposed projects prior to legislative
     appropriations or specific authorizations for the
     construction and equipping of such projects."

     Section   5 of the Act states, in part, as follows:

          "Section 5. (A) The state Building Commis-
     sion is hereby designated as the administering
     agency and shall exercise the powers and duties con-
     ferred 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 670m, 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. ...-

     Based on the provisions of Section 5, supra, it is our opinion
that Article 678f. Vernon's Civil Statutes, does not limit the
authority of the State Building Commission to contract with any
other State agency or department.  In this regard, see Attorney
General's Opinion C-536 (19651, which held that an account payable
to the State Building Commission incurred under a contract with
the Texas Department of Mental Health and Mental Retardation
pursuant to the authority of Article 678m and Article 678f. Ver-
non's Civil Statutes, was an allowable claim against the Texas
Department of Mental Health and Mental Retardation.

     In addition to the authority of the State Building Commission
to enter into contracts with other State agencies under the pro-
visions of Article 678m, Vernon's Civil Statutes, the Commission
is authorized to enter into contracts with other State agencies
under the provisions of Article 4413 (32). Vernon's Civil Statutes,
known as "The Interagency Cooperation Act." Attorney General's
Opinion C-78( 1963). We quote from the provisions of Article
4413(32) as follows:




                                  -3357-
Hon. Ben Barnes, Hon. Gus Mutscher, page 5       (M-695)




          II
               .   .   .




           "Section 2. When used in this Act the word
     'agency' includes department, board, bureau, com-
     mission, court, office, authority, council, institution,
     university, college, and any service or part of a State
     institution of higher education.

           "Section 3. Any state agency may enter into and
     perform a written agreement or contract with other
     agencies of the state for furnishing necessary and
     authorized special or technical services, including
     the services of employees, the services of materials,
     or the services of equipment...

          "Section 4. Before any services may be rendered
     or received, a written agreement or contract shall be en-
     tered into, specifying the kinds and amounts of services
     to be rendered, the bases for calculating reimbursable
     costs, and the maximum account of the costs during the
     time period covered by the agreement.

           t,.. .

           "Section 6. Payments for such services by a
     receiving agency shall be made from the appropriation
     items or accounts of the receiving agency from which
     like expenditures would normally be made, based upon
     vouchers drawn for this purpose by the receiving
     agency payable to the furnishing agency. Payments re-
     ceived by the State agency performing the services
     shall be credited to that State agency's current appro-
     priation items or accounts from which the expenditures
     of that character were originally made. . .'I

     The facts submitted in connection with Attorney General's
Opinion C-78(1963) are outlined, in part, as follows:




                              -3358-
Hon. Ben Barnes, Hon. Gus Mutscher, page 6      (M-695)


           "Recently the Department of Public Welfare has
     purchased an IBM machine which they desire to have
     installed in the new building . . . In order to in-
     stall this equipment and have it function properly,
     it is necessary to augment the air conditioning with-
     in the designated room location and furnish an addi-
     tional source of electrical power supply . . . The
     Department of Public Welfare has stated that they
     have the appropriated funds to cover the installation
     in the amount stipulated.    Sufficient contingency
     funds originally appropriated to the State Building
     Commission for the structure do not remain to cover
     the installation of this newly acquired and unforeseen
     IBM machine requirement. . ."

Opinion C-78 (1963) cites Section 3 and Section 6 of Article
4413(32), Vernon's Civil Statutes, and holds under the facts
submitted that:

          "It is the opinion of this office that the State
     Building Commission has the power and authority un-
     der Section 3 of Article 4413(32) to enter into agree-
     ments or contracts with other State agencies whereby
     the Commission performs services for the other agency.
     The services rendered by the State Building Commission
     would be 'special' or 'technical services' within the
     meaning of Article 4413(32).

          II
           . . . The contract would be subject to the
     limitations on interagency contracts and agreements
     contained in Article 4413(32), and payment would have
     to be made in accord with Section 6 of Article
     4413(32) as quoted above." (Emphasis added.)

     Section 1, Article II of the Texas Constitution establishes
the Legislature as a separate "department" of the State government.
"The Legislative power of this State shall be vested in a Senate
and House of Representatives, which together shall be styled
'The Legislature of the State of Texas."' Section 1, Article III,
Texas Constitution.  Thus, there has been created "two separate




                             -3359-
Hon. Ben Barnes, Hon. Gus Mutscher, page 7      (M-695)


and coordinate chambers acting independently of each other."
See Interpretive Commentary under Article III, Section 1,
Constitution of Texas, Vol. 1 of Vernon's, page 550. Although
the principal function of the Legislature is to enact laws, in-
cluding the amendment, repeal and suspension of enforcement of
existing laws,the Legislature also possesses powers of a non-
legislative character. 36 Tex.Jur.2d 132, Legislature, 9 8.
One of these non-legislative powers is the power to contract.
Conlev, et al v. Daughters of the Republic, 156 S-W. 197, 106
Tex. 80 (1913 reh, den. 157 S.W. 937); (Charles) Scribner's
Sons v. Marrs, 262 S.W.  722, 114 Tex. ll(1924); Dikes v. Miller,
25 Tex. Supp. 281(1860). Throughout many years in Texas it
has been the usage and practice for each separate legislative
body to contract for and expend its legislative appropriation.
There being no constitutional prohibition, the extent of a
legislative body's power is to be determined as well by usage as
by specific grants. 49 Am.Jur. 250, States, etc., Sec. 33.

     In view of the foregoing, it is our opinion that, as separate
legislative bodies, the Senate and House of Representatives each
jointly or severally, have the power to contract to expend ap-
propriations which the Legislature has made to each body separately.
With reference to the Interagency Cooperation Act, it is our
opinion that the Senate and House of Representatives have the
legal capacity to contract with the State Building Commission
under the authority of Article 4413(32), Section 2, and Article
678m, Vernon's Civil Statutes and Attorney General's Opinion
No. WW~1120 (1961).

     Presently the Senate and House of Representatives have funds
appropriated to each separate body which provide, in part, for
the "building repair" and "remodeling."  It is our opinion that
building repair and remodeling would be special or technical
services within the meaning of Article 4413(32), Section 3, Vernon‘s
Civil Statutes, and also within the scope of the authorized pur-
poses specified in Article 678m, Section 3, Vernon's Civil Statutes.

     On the basis of the preceding discussion, it is our opinion
that the State Building Commission under the authority of the
provisions of Section 51-b, Article III of the Constitution of
Texas, Article 678m, Vernon's Civil Statutes, and Article 4413(32),




                              -3360-
Hon. Ben Barnes, Hon. Gus Mutscher, page 8            (M-695)


Vernon's Civil Statutes, may contract directly with the Senate
and House of Representatives to provide building repair and
remodeling services. Moreover the Senate and House of Representa-
tives is authorized to pay the State Building Commission for
these services under the authority of Attorney General's Opinion
C-78(1963) upon vouchers drawn for this purpose by the Senate
and House of Representatives payable to the State Building Com-
mission.

                          SUMMARY

               The State Building Commission under the
          authority of the provisions of Article III,
          Section 51-b, Texas Constitution, Article 678m,
          Vernon's Civil Statutes, and Article 4413(32),
          Vernon's Civil Statutes, may contract directly
          with either the Senate or House of Representa-
          tives, or both of-such bodies to provide
          "building repair" and "remodeling services."

               The Senate and House of Representatives
          are authorized to pay the State Building Com-
          mission for these services under the authority
          of Attorney General's Opinion C-78(1963) upon
          vouchers drawn for this purpose by the Senate
          and House of Representatives payable to the
          State Building Commission.

                                              truly yours,




                                         Attorne&/General    of Texas

Prepared by Ivan R. Williams,   Jr.
Assistant Attorney General




                                -3361-
Hon. Ben Barnes, Hon. Gus Mutscher, page 5   (M-695)


APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Houghton Brownlee
John Banks
J. C. Davis
S. J. Aronson

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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