       ,-




                                         The Attorney           General of Texas
                                                        December 1, 1982
MARK WHITE
Attorney General

                                        Honorable Roy Blake, Chairman          Opinion No.MW-519
Supreme      Court Building             Senate Committee on Administration
P. 0. BOX 12546                         Texas State Senate                     Re: Whether funds appropriated
Austin, TX. 76711. 2546
                                        G-27-J, State Capitol Building         for college construction by
51214752501
Telex    9101674-1367
                                        Austin, Texas   78711                  second called session of the
Telecopier     5121475.0266                                                    Sixty-seventh Legislature may
                                                                               be expended without coordina-
                                                                               ting board approval
1607 Main St., Suite 1400
Dallas.  TX. 75201-4709
2141742a944
                                        Dear Senator Blake:

                                             You have requested our opinion as to whether certain funds
4624 Alberta       Ave., Suite    160   appropriated for college construction may be expended without approval
El Paso, TX.       79905-2793
9151533.3464
                                        of the coordinating board.

                                             House Bill No. 1, was enacted in May 1982, and became effective
1220 Dallas Ave., Suite          202    upon the adoption of the amendment to article VII, section 17 of the
tiouston,  TX. 770024966                Texas Constitution at the November 2, 1982 election. Acts 1982, 67th
7131650-0666
                                        Leg., 2d called session, ch. 1, at 1, provides, in pertinent part:

606 Broadway.        Suite 312                       Section 1. In addition to sums previously
Lubbock,     TX.    79401.3479                    appropriated,    the   following   amounts    are
8061747-5236                                      appropriated to the named institutions of higher
                                                  education from the general revenue fund and other
4309 N. Tenth, Suite El                           funds that may be specified for the purpose of
McAllen,     TX. 76501-1685                       constructing permanent improvements, acquisition
5121662-4547                                      of land, and major repair and rehabilitation
                                                  projects as listed, and those projects or
 200 Main Plaza, Suite 400
                                                  improvements are     hereby  authorized.    Those
 San Antonio.  TX. 76205-2797                     institutions for which new construction only is
 5121225-4191                                     authorized may use appropriated funds for major
                                                  repair and rehabilitation.
 An Equal      OppOrtunitYI
 Affirmative     Action    Employer
                                        There follow specific appropriations for 17 named institutions,
                                        together with details regarding the purpose of the expenditures. The
                                        first two appropriations, for example, provide as follows:

                                                  1.   The University of Texas at Arlington

                                                       New Construction:




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Honorable Roy Blake - Page 2     @lw-519)




               a.   Thermal Energy Plant
               b.   Architecture Building
               c.   Engineering Building

               Major Repairs and Rehabilitation:

               d.   Renovation of Cooper Center

               TOTAL APPROPRIATION                 $25.000.000

          2.   Texas Tech University

               New Construction:

               a.   Library Basement Alterations for Computer
                    Center
               b.   South Utilities Tunnel Interconnect
               c.   Completion of Subbasement in Art Building

               Major Repairs and Rehabilitation

               d.   Industrial Engineering Building
               e.   Civil and Mechanical Engineering Building

               TOTAL APPROPRIATION                 $ 5,900,000

Section 2 of House Bill No. 1 then states:

          Funds appropriated in this Act may be expended
          only   after   the   advance  approval    of   the
          Coordinating Board, Texas College and University
          System,   in   accordance with    the    statutory
          responsibilities of the board. A project shall
          not be initiated until the governing board of the
          institution has    determined tha;     there are
          sufficient funds available to complete the
          project. (Emphasis added).

Section 3 of the bill states:

             Part of each institution's appropriation under
          this Act represents a distribution of the
          undistributed balance of the state ad valorem tax
          fund and the remainder is appropriated from the
          general   revenue   fund.     Each   institution's
          distribution from the state ad valorem tax fund is
          in the same proportion that the institution's
          total of funds appropriated and distributed under




                               p. 1881
..


     Honorable Roy Blake - Page 3   (MW-519)




               this Act bears to the total appropriated and
               distributed under this Act to all institutions.

     You ask whether section 2 requires that the funds appropriated by
     House Bill No. 1 "be expended only after the advance approval of the
     Coordinating Board."

          Section 61.058 of the Education Code provides, in pertinent part:

                  To assure efficient use of construction funds
               and the orderly development of physical plants to
               accommodate projected college student enrollment,
               the board shall:

                  . . ..

                  (8)  approve or disapprove all new construction
               and repair and rehabilitation of all building and
               facilities at institutions of higher education
               financed from any source other than ad valorem tax
               receipts of the public junior colleges, provided
               that:

                  .. . .

                 (D) the requirement of approval or disapproval
              by the board does not =PPlY to any new
              construction or major repair and rehabilitation
              project that is specifically approved by the
              legislature.

          We note initially that the appropriations described herein would
     be invalid if they attempted to modify general law. Moore v.
     Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); Attorney General Opinions
     MW-51 (1979); V-1253 (1951). Section 2 clearly states, however, that
     coordinating board approval is required "in accordance with the
     statutory   responsibilities of     the  board."    Those   statutory
     responsibilities include an exception limiting the need for board
     approval in the situation you present. e   Jessen Associates, Inc. v.
     Bullock, 531 S.W.2d 593 (Tex. 1975).

          Each of the 17 appropriations is categorized by House Bill No. 1
     as either "new construction" or "major repair and rehabilitation."
     The items of appropriation detail the purposes for which the
     expenditures are to be made. In our opinion, it is clear that the
     legislature has "specifically approved" each of the "new construction"
     and "major repair and rehabilitation" projects funded by House Bill
     No. 1. As a result, in accordance with subsection (8)(D) of section




                                p. 1882
Honorable Roy Blake - Page 4     (MW-519)




61.058 of the Education Code, coordinating board approval is not
required for any of the projects.

                               SUMMARY

             In accordance with section 61.058 of the
          Education Code, approval by the Coordinating Board
          of the Texas College and University System is not
          required to expend any of the funds appropriated
          in House Bill No. 1, Acts 1982, 67th Leg., ch. 1,
          at 1, for "new construction" and "major repairs
          and   rehabilitation" at     any   of   17   named
          institutions of higher education.

                                          Very truly yours,
                                                              .

                                         &ai&&!d
                                          MARK      WHITE
                                          Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Lance Beversdorff
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




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