                      January 4, 1968


Hon. J. K. Williams          Opinion NO. M-182
Commissioner, Coordinating
  Board                      Re:   Whether the governing
Texas College and Univer-          boards of junior college
  sity System                      districts are required
Sam Houston Office Bldg.           to take out building
Austin, Texas 78701                permits on the construc-
                                   tion of buildings of the
                                   district and related
Dear Mr. Williams:                 questions.
          In your request for an opinion on the above subject
matter, you ask the following questions:
          "1 . Does a municipality have legal author-
     ity to impose building restrictions on a public
     junior college district?
          "2 . Is a public junior college district
     required to obtain a building permit from a
     municipality?
          "3 . Is a public junior college district
     required to pay a municipality a fee for a
     building permit?"
          In Port Arthur Ind. Sch. Dist. v. City of Groves,
376 S.W.Zd 330 (Tex.Sup. 19641, it was held that the build-
ings erected by an independent school district are subject
to the regulatory ordinances of the municipality in which
they are located. This result was the consequence of the
court's conclusions at page 333 of the opinion:
          u. . . [IIndependent school districts . . .
     are independent political entities and we will
     not classify their property as state property.
     . . . The Legislature, in providing that local
     school boards shall contract for the erection
     of school buildings and superintend the con-
     struction of same, made no provision whatsoever
     that they should regulate, supervise or control
     in any manner the building of school buildings

                          -870-
Hon. J. K. Williams, page 2, (M-182)

     and provided for no safety regulations for the
     protection of the occupants or the property of
     others in the vicinity of the school buildings."
     (Emphasis added.)
          Accord, School District of Philadelphia v. Zonin
Board of Adjustment, City of Philadelphia, 417 Pa. 277, 20
A.2d 864 (1965), wherein the Supreme Court of Pennsvlvania
held that a municipality had the power to regulate by means
of zoning ordinances the construction of public school build-
ings by the school district within the municipal limits.

          It is a well established rule that municipal ordi-
nances regulating the construction, repair and equipment of
buildings do not apply to projects undertaken by the state or
its agents on property owned by the state. Board of Regents
v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (19601: Kentuc&
Institute For Education of Blind v. City of Louisville,
Ky. 767, 97 S.W. 402 (1906):,Town of Blood                  Jersey
Highway Authority, 18 N.J. 237 113 A.2d 658 (19551: Count
                             .._------_L . . .-~- . ..IY --
of Westchester v. Village of m&onecn,    LL  App.uiv.~a     Lz-3
255 N.Y.S.Zd 290 (19641, affirmed 16 N.Y.2d 940, 212 N.E.2d 442
(1964); Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.Zd
777 (1956); City of Charleston v. Southeastern Const. co., 134
W.Va. 666, 64 S.E.2d 676 (1950); accord, Ex .partef Means, 14
Cal.Zd 254, 93 P.2d 105 (1939); Newton v. City o Atlanta, 189
Ga. 441, 6 S.E.Zd 61 (19391: Citv of Frankfort v. Commonwealth.
243 Ky:633, 49 S.W.2d 548'i1932).
          The rationale of these decisions is the ultimate right
of the state to act with regard to property which the state
owns and controls without interference from, or regulation by,
a subordinate entity which was created by the state and derives
all of its power and authority from the state.
          II
           . . . [Tlhe state will not be presumed
     to have waived its right to regulate its own
     property, by ceding to the city the right
     generally to pass ordinances of a police na-
     ture regulating property within its bounds.
     . . . The principle is that the state, when
     creating municipal governments, does not
     cede to them any control of the state's
     property situated within them, nor over
     any property which the state has autho-
     rized another body or power to control.
     The municipal government is but an agent
     of the state - not an independent body.
     It governs in the limited manner and ter-
     ritory that is expressly or by necessary
                           -871-
Hon. J. K. Williams, page 3, (M-182)


    implication granted to it by the state.
    It is competent for the.state to retain
    to itself some part of the government
    even within the municipality, which it
    will exercise directly, or through the
    medium of other selected and more suit-
    able instrumentalities. How can the city
    have ever a superior authority to the
    state over the latter's own property,
    or in its control and manasement? From
    the nature of things it cannot have."
    Kentucky Institute for Education of
    Blind v. City of Louisville, 123 Ky. 767,
    97 S.W. 402, 404 (1906).
          Reviewing the above cited authorities together with
the provisions of Article 2615g, Vernon's Civil Statutes, es-
tablishing the University of Houston as a state institution
of higher learning, this office held in Attorney General's
Opinion C-690 (1966):
          "Municipal ordinances regulating the loca-
     tion, size, design, height, construction, equip-
     ping, and inspection of new buildinqs or the re-
     modeling and repair of existing buildings, do
     not apply to projects undertaken by the state
     on property owned by the state. The Universi-
     ty of Houston is a state institution of higher
     learning, created and controlled by the state.
     Its property is state property, therefore, the
     erection, remodeling, or repair of buildings
     by the University of Houston is not regulated
     by the ordinances of the municipalities within
     which they are located."
          In discussing the City of Groves case, supra, we
observed in Opinion C-690:
          "In Port Arthur Ind. Sch. Dist. v. City
     of Groves, supra, the court expressed the
     fear that buildings erected by independent.
     school districts would constitute a-threat
     to the health and safety of the community
     if they were not regulated by municipal
     building ordinances. We do not view the
     prospect of the development and expansion
     of the physical facilities of the various
     state institutions of higher learning, un-
     restrained by the regulatory ordinances of
     the various municipalities within which
                          -872-
Hon. J. K. Williams, page 4, (M-192)


     such institutions may be located, as a
     threat to the safety and health of the
     community. The state is the ultimate au-
     thority responsible for the protection of
     the health, safety and welfare of its
     citizens and we will not presume that
     the state or the designated governing
     boards of its institutions of higher
     learning will, in the pursuit of educa-
     tional excellence, so plan and expand
     the facilities of these institutions
     as to be unmindful of the health and
     safety of the community involved. The
     following statement of the court in the
     City of Tempe case, supra, is partic-
     ularly appropriate to this aspect of
     the question:
          "'There is nothing to suggest that
     the Board will supervise the University's
     construction program with less concern
     for the public welfare than would the
     City. Indeed, we may well assume that
     this Court's determination of the scope
     of the Board's duties will be followed by
     an appreciationsof the responsibilities
     generated thereby. It is thus unnecessary
     for us to consider or enumerate the judicial
     and other remedies available to insure that
     the Board, or any other state or municipal
     agency, performs its duties in a manner
     consistent with the health, safety and
     general welfare of the people of this
     State.
          "'We hold that the City of Tempe may
     not apply its building codes and requlations
     to Arizona State University.' 356 P.2d 407
          "Therefore, you are hereby advised that
     the municipal ordinances regulating location,
     construction, design, equipping and inspec-
     tion of buildings and structures within such
     municipalities do not apply to projects under-
     taken by the University of Houston on land
     owned by such institution. Our conclusion
     upon this question is also supported by
     Attorney General's Opinions V-977 (1949)
     and C-301 (19641, both of which are hereby
     affirmed."
                          -x73 -
Hon. J. K. Williams, page 5, (M-182)

          In view of the above authorities, the answer to your
questions depends on whether property owned and controlled by
junior colleges is to be classified as state property: and in
order to determine the answer to this question, it becomes im-
portant to determine the nature of junior colleges as well as
applicable statutory provisions governing the construction of
junior college facilities. In Shepherd v. San Jacinto Junior
College District, 363 S.W.Zd 742 (Tex.Sup. 1963), the court
In discussing the nature of junior college districts made the
following observation at page 744:
          “Some difficulty of classification has
     arisen with reference to junior colleges and
     the regional districts supporting them. Un-
     doubtedly the framers of the Texas educational
     system envisioned a system of schools extending
     from those of an elementary grade to those of
     a university level, that is, elementary schools,
     secondary schools or high schools and colleges
     and universities. The junior colleges, developed
     for the most part since 1929, are sandwiched in,
     so to speak, between the high schools on one
     hand and the colleges or universities on the
     other hand. In certain respects, the junior
     college is what its name implies, that is, a
     school which is above the high school level yet
     one whose highest grade is below the educational
     level required for a degree from a university.
     Yet, as pointed out by one of the briefs on
     file here, it would not be inappropriate to
     refer to the districts which support such
     schools as 'junior college districts,' 'ad-
     vanced independent school districts' or 'grad-
     uate high school districts.' The point of this
     is that junior colleges and their districts may
     in some instances be regarded as colleges and
     in other instances as schools in the nature of
     advanced high schools. The Junior College Act
     itself makes numerous references to independent
     school districts when delineating the powers
     and operations of a junior college district.
          "The Texas junior college history bears
     some relation to the experience of other
     states with secondary schools, that is, high
     schools or college preparatory schools."
     (Emphasis added.)
          Sections 1 and 2 of Article 2815r-2, Vernon's Civil
Statutes, provide:

                          -874-
Hon. J. K. Williams, page 6, (M-182)

         "Section 1. The governing boards of all
    junior college districts heretofore or here-
    after organized under the laws of the State
    of Texas are hereby severally authorized and
    empowered, each for its respective institu-
    tion or institutions, to construct, acquire
    and equip, on behalf thereof, buildinqs and
    other structures and additions to existing
    buildings and other structures and to acquire
    land for said additions, buildings and other
    structures in any manner authorized by law,
    if deemed appropriate by said governinq
    boards. Said constructions, equipping and
    acquisition may be accomplished in whole or
    in part with proceeds of loans obtained from
    any private or public source. The said gov-
    erning boards are also severally authorized
    to enter into contracts with municipalities
    and school districts for the joint construc-
    tion of said facilities.
          "Sec.2. The buildings and structures
     and additions to buildings and structures
     constructed pursuant to the authority con-
     tained in this Act, together with the equip-
     ment therein shall be of types and for pur-
     poses which the authorizing governing board
     shall deem appropriate and shall deem to be
     for the good of the institution, provided
     such governing board shall approve the total
     cost, types, plans and specifications of
     such construction and equipment."
          In view of the foregoing, we believe that property
belonging to junior college districts is not to be classified
as State property as it is governed by the rule announced in
City of Groves case rather than the rule announced in the Cit
of Tempe case. Therefore, you are advised that a municiparyity
has legal authority to impose building restrictions on a pub-
lic junior college district and that a public junior college
district is required to obtain building permits from a munic-
ipality, and pay the municipality a fee therefor when the munic-
ipality had duly promulgated such an ordinance in accordance
with applicable statutory provisions in furtherance of powers
granted to such city by the Legislature.
                       SUMMARY
                       -------
          A municipality has legal authority to im-
     pose building restrictions on a public junior
                          -875-
Hon.   J. K. Williams, page 7, (M-182)

       college district and a public junior college
       district is required to obtain building permits
       from a municipality, and pay the municipality
                                                - _
       a fee therefor when the municipality has duly
       promulgated an ordinance providing therefor,
       in accordance with applicable statutory provisions
       and in furtherance of powers granted to such city
       by the Legislature.

                                          very truly,
                                    yY=




Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Arthur Sandlin
James Broadhurst
John Banks
A. J. CARUBBI, JR.
Staff Legal Assistant




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