                        AUSTlN     11. TExaS




                                 January 18, 1962


Honorable Price Daniel                     Opinion No. W-1244
Governor of Texas
Capitol Station                            Re:   Authority of the Legis-
Austin, Texas                                    lature to appropriate
                                                 State Building Commis-
                                                 sion Funds to renovate,
                                                 equip'and repair the ex-
                                                 terior of the San Jacinto
                                                 Memorial Tower and Museum
Dear Governor Daniel:                            Building.
           Your request for opinion on the above subject matter
reads as follows:~
               "As you know, the San Jacinto Memorial
          Tower and Museum Building is badly in need of
          construction work to protect the valuable re-
          cords and exhibits housed in this building and
          to protect from injury those who work and visit
          in the building. A dangerous amount of flaking
          has been occurring between the joints of the
          masonry work for several years, and so much
          additional damage was caused by Hurricane Carla
          that the building is now leaking water into the
          museum and record rooms. It has caused the
          museum to be closed to the public.
                "I have recommended to the Legislature an
           emergency appropriation of $156,000 from the State
           Building Commission Fund to renovate, equip and
           repair the exterior and interior of the building,
           and the Fund has this much unappropriated money
           available.
                "The question has been raised as to whether
           this structure is a 'building' within the meaning
           of the Texas Constitution, Sec. 51-b, Article 3,
           which authorizes the use of the Fund to 'modernize,
           remodel, build and equip buildings for State pur-
           poses.' Of course, it is often referred to as a
           monument, but actually the San Jacinto Memorial
           Tower is a building in the opinion of this office,
                                                                ‘_   ,




Honorable Price Daniel, page 2.   (ww-1244)


           the State Board of Control and the staff of
           the State Pullding Commission.
               "Also, you will note that the original
          resolution of the Texas Legislature, dated
          April 17, 1939, Chapter 16, Acts of the 46th.
          Legislature, Regular Session, makes reference
          to the 'San Jacinto Memorial Tower' as a
          'building' seven times, and in subsequent re-
          solutions and contracts under these resolu-
          tions, the structure is referred to as a
          'building' at least 210 times. I attach a
          memorandum from the State Board of Control
          showing the actual usable floor space within
          the building, from which you will note that
          much of the interior of the shaft is used for
          housing, storage, etc.
               'Since this matter is now pending in
          committees of both Houses, I would appreciate
          your earliest possible advice as to whether
          the San Jacinto Memorial Tower and Museum
          Building comes within the provisions of the
          Texas Constitution, for the purposes of State
          Building Commission funds being appropriated
          by the Legislature to do the necessary con-
          struction work above mentioned."
           According to the memorandum attached to your request
the structure contains 34,205 square feet of floor space and is
constructed In such manner as to contain a basement floor, en-
trance floor, second floor, third floor, fourth floor, souvenir
floor, observation floor and elevator machine floor.
           The pertinent provision of Section 51-b of Article
III of the Constitution of Texas reads as follows:
                      The State Building Fund shall
          be expknded by the Commission upon appropria-
          tion by the Legislature for the uses and pur-
          poses set forth in subdivision (c) hereof.
               "(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 dis-
          pose of property unsuitable for State pur-
          poses, and negotiate and make contracts
Honorable Price,llaniel;,~page
                            3.     (W-1244)


            necessary to carry out and effectuate the
            purposes hereinmentioned."
            Section 3 ,of Article 678m, Vernon's Civil Statutes,
provides:
                 "Sex. 3. The Commissiop~shall have the
            authority to promulgate such rules and regu-
            lations as it deems:proper for the effective
            administration of this Act. Under such terms
            and conditions as may be provided by law, the
            Commission may acquire necessary real and per-
            sonal property, modernize, remodel, build and
            equip buildings for State purposes, and make
            contracts necessary to carry out and effectuate
            the purposes herein mentioned in keeping with
            appropriations authorized by the Legislature.
            Provided, ~however,that the Commission shall
            not sell,or dispose of any real property of
            the,~State;except by specific authority from,
            the Legislature."
            Section 24 of Article 678m, Vernon's Civil Statutes,
provides:
                 "Sec. 24. The State E&llding,Commission
            may, in its discretion, provide for t!e storage
            and display of the archives of Texas.'
           It is our opinion that the structure,~involvedin
your request constitutes a building for State purposes with-
in the meaning of subdivision (c) of Section 51-b, Article
III of the Constitution of~Texz+sand Section 3 of Article 678m,
for the reason that such structure is builtin a manner to
house valuable records and exhibits constituting archives of
Texas. The structure contains numerous floors and approxi-
mately 34,000 square feet of floor space.
           In view of the foregoing you are advised that sub-
division (c) of Section 51-b of Article III of the Constitu-
tion of Texas and Sections 3 and 24 of Article 678m, Vernon's
Civil Statutes, above quoted, constitutes pre-existing law for
the appropriation outlined in your request.
Honorable Price Daniel, page 4.     (~~-1244)


                           SUMMARY

               The Legislature is authorized to
               appropriate State Building Com-
               mission Funds to renovate, equip
               and repair the exterior and interior
               of the San Jacinto Memorial Tower
               and Museum Building.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas




JR:lg:zt                              Assistant Attorney General

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard Mays
Bob Eric Shannon
Joseph Trimble

REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
