                     E         ORNEY               GENE-
                              OF     TEXAS
                            AUSTIN       ~.TEXAS
  FVILL   WILSON
AlTORNEYGENERAL
                       February 20, 1961

     Mr. Wm. J. Burke              Opinion No. NW-996
     Executive Director
     State Board of Control        Re:    Whether Acts Fifty-sixth
     Austin, Texas                        Legislature, Third Called
                                          Session, 1959, Chapter 23,
                                          page 442 prohibits the chang-
                                          ing in the air duct connec-
                                          tions of the air condition-
                                          ing system in the State
                                          Office Building when such
                                          changes are necessary to in-
                                          sure proper functioning of
     Dear Mr. Burke:                      such system.
          You have requested an opinion on the following ques-
     tion:
                 "Does Section 40 of Article V, 'General
           Provisions' H.B. 4, enacted by the Third
           Called Session of the Fifty-sixth Legisla-
           ture,  In 1959, by the following language
           'Building Alterations Prohibited. None of
           the funds appropriated in this Act may be
           expended for removing walls, partitions or
           any other permanent part of the New State
           Office Building or the Supreme Court Build-
           ing' prohibit a change in air duct connec-
           tions supplying fresh air to the air con-
           ditioning system of the New State Office
           Building when such change is necessary to
           insure proper functioning and continuous
           satisfactory performance and adequate air
           conditioning effect from certain individual
           air conditioning units serving the first and
           second floors of the said State Office Build-
           ing?
                 "Does Section 40 quoted above prohibit
            the installation of the necessary and proper
            air duct to supply an adequate and dependably
            constant amount of fresh air to the individual
            air conditioning units serving the west end of
            floors one and two of the State Office Building
Mr. Wm. J. Burke, page 2 (m-996)


     to be connected with a new outside air intake
     opening constructed through the basement wall
     of the State Office Building near the southwest
     corner of said building?
          "If your answer to the above question is
     in the negative, is the Board of Control pro-
     hibited from paying the cost of such new duct
     installation and necessary correction work from
     funds appropriated to the Board of Control from
     Budget Item 69 of said H.B. 4 entitled, 'Air
     Conditioning Maintenance, including maintenance
     contracts, professional fees, materials and
     supplies, special tools and plant equipment'?“
     The facts on which your question is based are stated
in your request as follows:
          "Changes in the air supply ducts and con-
     nections are necessary because the large fans
     supplying the fresh air for all floors above
     the second floor develop a suction on the common
     air intake duct (from which the units serving
     the first and second floors also are supposed to
     obtain their fresh air supply) sufficient to
     prevent smaller individual units serving the
     said first and second floors and especially
     those in the west one-half of the building from
     receiving an adequate amount of fresh air to
     permit proper functioning, adequate performance
     and satisfactory air conditioning; and, further-
     more, at times completely overpower the intake
     capacity of the smaller units with the result
     that air flows are reversed to the extent that
     the return air grilles actually discharge hot,
     contaminated air under pressure instead of suck-
     ing it in for reconditioning through filters and
     the cooling units.
          "The effect of the above described occur-
     rence on offices, conference and meeting rooms is
     such that inside temaeratures cannot be controlled
     by the thermostats and the air conditioning units.
          "The proposed, and most feasible, solution
     of the problem is the separation of air intake
.   .




        Mr. Wm. J. Burke, page 3 (w-996)


             connections and/or air sources serving the
             large fans and the small air conditioning
             units so that the respective small fans and
             units may have separate and independent fresh
             air intake sources to insure that one cannot
             interfere with the satisfactory operation of
             the other.
                   "In order to provide the separate air in-
             take to supply fresh air to the units serving
             the first and second floors (west end) of the
             State Office Building, it becomes necessary to
             disconnect the air intake, serving the small
             units, from the main large air intake, serving
             the main fans that supply air to floors three
             to ten, inclusive, install a new fresh air in-
             take for the small units (serving floors one and
             twos)through the basement wall at the southwest
             corner of the State Office Building below ground
             level protected by an area-way and appropriate
             cover structure. Such installation of the neces-
             sary new duct would require an opening to be
             cut through the basement wall which would in
             effect remove a small portion of a 'permanent
             part' of the New State Office Building basement
             wall.
                  "Had the effect of the earlier described com-
             mon source main air duct on the smaller units
             (serving floors one and two) been anticipated and/or
             possible of calculation at the time the duct system
             for the air conditioning was designed, there is no
             doubt that separate ducts would have been installed
             when the building was constructed. The building has
             been completed, occupied, and the air conditioning
             system has been in operation more than one year, and
             It is now apparent that the conditions described above
             could become worse resulting in more unsatisfactory
             operation and improper and inadequate air cbndition-
             lng than we now experience."
             Section 7 of Article 678m, Vernon's Civil Statutes, pro-
        vides:
                  "The Commission shall obtain title for the
             State and retain control of the real property
                                                              .




Mr. Wm. J. Burke, page 4 (W-996)


     acquired for sites and of the buildings
     located thereon until final construction
     is completed and the buildings are occu-
     pied by the State agencies to be housed
     therein, at which time the management and
     control of said buildings shall be trans-
     ferred to the Board of Control. Except as
     otherwise provided in this Act, the initial
     occupants shall be those State agencies
     agreed upon by the Commission and the Board
     of Control."
     In view of the provisions of Section 7 of Article 678m,
it is the duty of the State Board of Control to keep the
State Office Building in proper maintenance and repair. Ther+
fore, it is the responsibility of the ,Board of Control to ex-
pend available funds to maintain the proper functioning of
equipment initially installed by the State Building Commis-
sion in the construction of the State Office Building.
     Section 40 of Article V of House Bill 4, Acts of the
Fifty-sixth Le islature, Third Called Session, 1959, Chap-
ter 23, page 482 (General Appropriation Bill) provides at
page 732:

          "None of the funds appropriated in this
     Act may be expended for removing walls, parti-
     tions or any other permanent part of the new
     State Office Building or the Supreme Court
     Building."
     It is our opinion that the foregoing does not prevent
the Board of Control from expending appropriated funds to
provide for the proper functioning of initial equipment in
the State Office Building. This is particularly true under
the facts outlined in our request, since the Legislature
in House Bill 4 in Item 69 (page 517) of the'appropriation
to the Board of Control made~specific appropriation for
air conditioning maintenance.
     You are, therefore,,advised that you are authorized to
expend monies appropriated in Item 69 for the purposes out-
lined in your request.

                    SUMMARY
                    -------
          The State Board of Control is authorized
          to spend monies appropriated for air
.   .




        Mr. Wm. J. Burke, Page 5 (m-996)


             conditioning maintenance for making changes
             in the air supply ducts and connections neces-
             sary to the proper functioning of the air
             conditioning equipment installed in the State
             Office Building.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas


                                               ‘hi&v-&
                                      John Reeves
        JR:ms                         Assistant
        APPROVED:
        OPINION COMMI!l?l?EE
        W. V. Geppert, Chairman
        William T. Blackburn
        Leon F. Pesek
        John C. Steinberger
        REVIEWED FOR THE ATTORNEY GENERAL
        BY: Morgan Nesbitt
