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                      The Attorney               General of Texas
                                       January    14,    1980

MARK WHITE
Attorney General


                   Honorable William P. Clements, Jr.           Opinion No. Hw-128
                   Governor of the State of Texas
                   Capitol Building                             Re: Construction    of a building by
                   Austin, Texas                                the    Department      of     Human
                                                                Resources.

                   Dear Governor Clementm

                          You have requested our opinion on a number of questions regarding the
                   construction of a building by the Texas Department of Human Resources
                   [hereinafter DHR]. In Attorney General Opinion MW-51 (1979), we held that
                   you were without authority to veto the following provision of the General
                   Appropriations Act [hereinafter referred to as rider 471:

                                 (47) The Texas Department of Human Resources is
                              hereby authorized and directed to construct a state
                              office building, in cooperation with the State Board
                              of Control, consisting of NTE 530,000 gross square
                              feet (400,000 net square feet). No General Revenue,
                              Children’s Assistance, or Medical Assistance funds
                              may be used for this purpose.

                                 It is the intent of the Legislature that the building
                              house the central administrative      offices of both the
                              Texas Department of Human Resources and the Texas
                              Youth Council.       Further, it is the intent of the
                              Legislature that the building be constructed on State
                              land currently owned by the Texas Department of
                              Mental Health and Mental Retardation.        The Board of
                              Mental Health and Mental Retardation            is hereby
                              authorized and directed to transfer to the State
                              Board of Control record title to a certain triangulal-
                              shaped tract of land 29 acres, more or less, in the
                              north part of the City of Austin, bounded on the west
                              by    West Guadalupe       Street    and North Lamar
                              Boulevard, on the north by Slst Street, on the east by
                              Guadalupe Street and having the southern tip of the
                              tract at the intersection      of Guadalupe and West
                              Guadalupe Streets, together with all records held by
                              it concerning this tract.




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Honorable William P. Clements, Jr.     -    Page Two     (MW-128)



In reaching our conclusion, we said that rider 47 does not itself set aside or dedicate
funds, but merely directs and qualifies the use of funds appropriated elsewhere. We noted
that rider 6 to the DHR appropriation, which rider appropriates earned federal funds,
constitutes one source of funds available for the construction of the building contemplated
by rider 47. After the funds. have been earned by the state they are freed from federal
control. Rider 6 provides:

              (6) The appropriations herein made may be used to match federal
           funds granted to the state for the payment of personal services,
           travel and other necessary expenses in connection          with the
           administration and operation of a state program of public welfare
           services.    The Texas Department of Human Resources is hereby
           authorized to receive and disburse in accordance         with plans
           acceptable to the responsible federal agency, all federal moneys
           that are made available (including grants, earnings, allotments,
           refunds, and reimbursements) to the state for such purposes and all
           fees authorized by federal law, and to receive, administer, and
           disburse federal funds for federal programs in accordance with
           plans agreed upon by the Department of Human Resources and the
           responsible federal agency, and such other activities as come under
           the authority of the Department of Human Resources, and such
           moneys are appropriated to the specific purpose or purposes for
           which they are granted or otherwise made available.

       Rider 6 authorizes DHR to receive and disburse three categories of funds: (1) those
made available “for such purposes,” i.e., payment of personal services, travel and other
necessary expenses in connection with the administration and operation of a state program
of public welfare services; and (2) those made available “for federal programs . . . and
(3) such other activities    as come under the authority of the Department of Human
Resources.” The rider appropriates the funds “to the specific purpose or purposes for
which they are granted or otherwise made available.” Expenditure of the third category
of funds: will not require federal approval.

       We have been advised that DHR anticipates the availability of earned federal funds
in an amount exceeding $178 million for the present biennium.         Of this amount, only
$60,650,000 has been specifically earmarked by the legislature for financing line items.
As a result, earned federal funds of approximately $117 million should be available to
finance the construction of the building described in rider 47. It is anticipated that the
building will cost approximately $40 million. Since the Board of Human Resources is
“responsible for the adoption of policies and rules for the government of the department,”
the board is authorized to determine the purpose or purposes for which non-earmarked
funds are to be expended, and the amount to be designated for each such purpose. Human
Resources Code, section 21.003.

      We will now address your particular   questions.

           1.    Which particular funds appropriated by rider 6 may be used to
                 finance the construction of the building for the Department
                 of Human Resources?




                                            P-   406
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        Honorable William P. Clements, Jr.    -   Page Three      (Mw-129)



        Funds available for construction   of the DHR building are those included within the third
        category described above.

                   2.    What is the monetary limit on such funds that                 may be
                         expended for the construction of this building?

        The entire amount of earned federal funds under category three, less the $60,650,000
        specifically earmarked by the legislature, may be expended for the construction of the
        DHR building.     Under present estimates, approximately  $117 million should thus be
        available.

                    3.   If $100 million or $200 million is available from the particular
                         fund or funds that may be used to finance the building, may
                         any or all of that amount be expended?

        As we have said previously, the entire amount, less that specifically earmarked, may be
        expended. Of course, it is anticipated that the building will cost substantially less than
        that amount.

                    4.    Is the construction of a building ‘a purpose for which federal
                          moneys are made available within the meaning of rider 6’?

        Yes, since earned federal funds are to be used, and they are available for any purpose.

                    5.    Is the construction of a building a federal program within the
                          meaning of rider 6, and, if so, must the Department of Human
                          Resources and the responsible federal agency agree upon
                          plans for the construction of this building?

        Since the second category of funds is not relevant      to this expenditure,    it is not necessary
        that we answer this question.

                    6.    Is the construction of a building an activity that comes under
                          the authority of the Department of Human Resources, and, if
                          the Department of Human Resources has such authority,
                          where is that authority found in the statutes?

        Yes. DHR is granted broad authority “to accept, expend, and transfer funds” and to “enter
        into agreements” with other state agencies to accomplish the purpose of assisting needy
        families and individuals.     Human Resources Code 5 22.002(e).      We cannot say that
        construction of a building will not assist in accomplishing this purpose. Furthermore,
        sections 5.01, 5.04, 5.16 and 5.17 of the new State Purchasing and General Services Act,
        article 601b, V.T.C.S., specify the procedure for cooperation between DHR and the State
        Purchasing and General Services Commission [formerly the Board of Control] in
        constructing a building.     We believe that these provisions furnish statutory authority
        sufficient to sustain the validity of rider 47 which, as we have noted merely directs or
        qualifies the use of funds appropriated elsewhere. -See Jessen Associates, Inc. v. Bullock,
        531 S.W.2d 593 (Tex. 1975).




                                                     p.   407
Honorable William P. Clements, Jr.     -    Page Four      (MW-128)



           7.    Have moneys been granted or otherwise made available for
                 the s ecific purpose of constructing a building within the
                 meamng
                     -FLT.o ruder 6?

Although DHR is not granted specific statutory authority to construct the building at
issue, we believe that the statutes described in our answer to question 6 furnish ample
statutory authority to sustain the validity of riders 6 and 47, which do make funds
available for the specific purpose of constructing a building.

           8.    Are the fun& appcpriated      for the construction    of a building
                 restricted to those appropriated in rider 6?

No, fun& are also available under article 5, section 19 of the General Appropriations Act,
but we believe that such funds are essentially the same as those described in rider 6.

           9.    Can any of the funds appropriated in Section 19 of Article V
                 of H.B. 558 be utilized for the purpose of constructing a
                 building for the Department of Human Resources?

Yes, but as we have noted   such fun& are essentially      the same as those described in rider
6.

           10.   Who has the responsibility for determining the purposes for
                 which funds appropriated by rider 6 can be utilized, and has
                 this been accomplished7

As we have previously indicated the Board of Human Resources has the responsibility for
determining  the purposes for which rider 6 funds may be utilized, and it is our
understandng that the Board has done so.

           1L    Who has the responsibility for determining the amount of
                 funds that can be utilized for a specific purpose under rider 6,
                 and has this been accomplished?

Again, the Board of Human Resources        has this responsibility,   and we have been advised
that it has done so.

           12.   What are the purposes for which the funds appropriated in
                 rider 6 can be utilized and what is the amount appropriated
                 for each purpose?

Rider 6 funds may be expended under the three categories described above. The amount
appropriated under each category depends upon the amount made available to DHR under
various agreements with the federal government.      We have previously indicated the
approximate amount available.

           13.   Are the funds appropriated in rider 6 ‘to the specific purpose
                 or purposes for which they are granted or otherwise made
                 available’?



                                           p. 408
Honorable William P. Clements, Jr.       -   Page Five   (MW-1281



       Yes, according to the language of rider 6.

            14.     Who has the responsibility   for determining   the ‘specific
                    purpose or purposes’ for which these funds are granted or
                    otherwise made available, and has this been accomplished in
                    rider 6?

The answer to this question is the same as our answer toquestion      number 10.

            15.     Who has the responsibility for determining the amount of
                    funds that are to be used for the ‘specific purpose or purposes’
                    for which these fun& are granted or otherwise made
                    available, and has this been accomplished under rider 6?

The answer to this question is the same as our answer toquestion      number 1L

            16.     Are the funds appropriated by rider 6 restricted to ‘plans
                    agreed upon by the Department of Human Resources and the
                    responsible federal agency and such other activities as come
                    under the authority of the Department of Human Resources’?

The three categories    of fun& described in rider 6 have been discussed above.

            17.     Can the Department of Human Resources expend any federal
                    funds received without having approval of the responsible
                    federal agency ?

Yes, expendture      of the third category   of funcb described   in rider 6 doea not require
federal approval.

             18.    In relation to Article V, Section 19 of H.B. 558, are the funds
                    appropriated by this section ‘to such agencies for the purposes
                    for which the federal grant, allocation,      aid, payment or
                    reimbursement was made’ subject to the legislative mandates
                    contained in said article and section?

Yes.

             19.    Is this the contrdling     and most specific appropriation
                    authority and expression of legislative intent in relation to
                    the funds appropriated by said rider? If it is not, what is?

As we have noted these funds are essentially      the same as those described in rider 6, which
is the more specific appropriation.

             20.    Who has the responsibility for determining the purposes for
                    which funds appropriated by Article V, Section 19 can be
                    utilized, and has this been accomplished?




                                             P.   409
Honorable William P. Clements, Jr.        -        Page Six (NW-128)



As with rider 6 funds, the Board of Human Resources has such responsibility,         and it is our
under&an&g that this has been accomplished

            2L     Who has the responsibility for determining the amount of
                   funds appropriated by Article V, Section 19 that can be
                   utilized  for a specific   purpose,   and has this been
                   accomplished7

Again, the Board of Human Resources has this responsibility,           and we are advised that it
has been accomplished

            22.   What are the purposes for which the funds appropriated in
                  Article V, Section 19 can be utilized and what is the amount
                  appropriated for each purpose?

Article V, section 19 funds, being essentially the same as those described in rider 6, may
be expended for the same purposes and in the same amounts as rider 6 funds. Therefore,
our answer toquestion number 12 is contrdling here.

            23.   Is rider     47 unconstitutional in that it attempts to amend
                  general     law by designating a particular site for the location
                  of the      Department of Human Resources in violation of
                  Article    695(c), V.A.C.S.?

No, becaize as we said in our answer to question number 6, general law is sufficient            to
support an appropriation such as rider 47.

            24.   Must the construction   of              the Department  of Human
                  Resources  building comply               with H.B. 1673, effective
                  September 1,1979?

Yes.

            25.   If so, since federal fun& are being used to construct this
                  building is it a requirement that there be an enabling federal
                  statute in accordance with H.B. 1673, Section 5.15(h), and if
                  there must, what enabling statute authorizes the construction
                  of this building?

Section 5.15(h) provides:

               (h) The commission may waive, suspend, or modify any provision
            of this article which shall be in conflict with any federal statute or
            any rule, regulation, or administrative    procedure of any federel
            agency where such waiver, suspension, or modification shall be
            essential to the receipt of federal funds for any project.       In the
            case of any project wholly financed from federal fun&, any




                                              P.    410
Honorable William P. Clements, Jr.        -   Page Seven      (Hw-128)



            standards required by the enabling federal statute or required by
            the rules and regulations of the administering federal agency shall
            be-controlling.

Section 5.15(h) does not require a federal statute.     It provides only that any standa&
required by federal statute or regulation shall control over conflicting provisions of article
601b.

            26.     Must the construction     of the Department               of     Human
                    Resources building comply with H.B. 1673?

Yes. This question is a duplicate of question number 24.

            27.     a) If not, under what constitutional or statutory authority             is
                    the Department of Human Resources project exempt?

In light of our answer toquestion     26, no answer is required

                    b) If it must, where in H.B. 558 is there an appropriation to
                    the State Purchasing and General Services Commission for
                    the construction of this building?

The appropriation      is to the     Department        of Human   Resources        rather   than   to the
Commission

            28.     By not making an appropriation to the Commission, does rider
                    6, Article V, Section 19, and rider 47 of H.B. 558 violate
                    Article 3, Section 35 of the Texas Constitution by amending
                    and modifying general law contained in H.B. 1673?

No. See answers toquestion        numbers 6 and 23.

            29.     Before the appcpriation   of money for the construction of the
                    Department of Human Resources building, was it necessary
                    for a project analysis to be submitted to the budget agencies
                    of this Statein accordance with Article 678f, V.T.C.S.?

Article 678f, the predecessor statute of article 601b, was in effect at the time fun& were
appropriated for the project at issue here Section 6(E) of that statute required the State
Building Commission to submit to the budget agencies of the state a report listing all
projects for which a project analysis was required      Nothing in article 678f, however,
protibited the legislature from appropriating funds for a project not included within the
Commission’s report.

            30.     If not,    what constitutional  or statutory   authority is this
                    project   exempt from the provisions of Article 678f? [sic]




                                                  p.    411
Honorable William P. Clements, Jr.      -   Page Eight   (NW-1281



As we noted in our answer to question number 29, article 678f imposed certain duties on
the State Building Commission, but placed no restrictions on the legislature with regard to
the apprcpriation of funds.

              31.   By its failure to require a project analysis for the con-
                    struction of this building before making an appropriation
                    authorizing such construction, did the legislature attempt to
                    modify and amend general law in violation of Article 3,
                    Section 35 of the Texas Constitution?

No. As we     have said, the statutory requirement that a project analysis be submitted spoke
only to the   duty of the Building Commission. Since no statute required the legislature to
have seen     a project analysis before making an appcqriation,       the legislature did not
attempt to     amend general law by appropriating these funds in the absence of a project
analysis.

                                        SUMMARY

              Rider 47 to the Department of Human Resources appopriation    for
              the 1979-81 biennium is not unconstitutional. The Board of Human
              Resources may authorize the expenditure of all non-earmarked
              earned federal funds in accordance with the provisions of that
              rider.




                                               MARK     WHITE
                                               Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
Bruce Youngblood



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