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    The Honorable Bevington Reed          Opinion NO. B-762
    Commissioner
    Coordinating Board                    Re: Authority of the
    Texas College and                     Coordinating Board, Texas
         University Syetem                College and University
    P. 0. Box 12788, Capitol Station      System, to control the
    Austin, Texas 78711                   cost of conetruction
                                          program8 undertaken by
                                          public colleges and
                                          universitie8.
    Dear   Dr.   Reed:
           You have asked us:
                 Does the Coordinating Board, Texas
                 College and University System have
                 the authority and the obligation
                 under [Education Code] Section 61.058,
                 as amended by Senate Bill 706, 64th
                 Texas Legislature, 1975, to regulate
                 the expenditure of funds in dealing
                 with construction and rehabilitation
                 projects in institutions of higher
                 education?
         You explain that "[tlhe term 'regulate' in this question
    refers to guiding the relationship of dollare to facilities
    space toward an efficient ratio as determined by Coordinating
    Board deliberation on each project."
         Section 61.058 of the Texas Educaton Code, as amended
    [Acts 1975, 64th Leg..,ch. 676, p. 20551 reads (emphasis
    added):




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The Honorable Bevington Reed - page 2 (H-762)


               Sec. 61.058. Construction Funds
          and Development of Physical Plants

              To assure efficient use of
         constKc=unde       and therxrly
         development omeical     plants to
         accommodate projected college student
         enrollments, the board shall:
               (1) determine formulas for
         space utilization in all educational
         and general buildings and facilities
         at institutions of higher education;
               (2) devise and promulgate
         methods to assure maximum daily and
         year-round use of educational and
         general buildings and facilities,
         including but not limited to maximum
         scheduling of day and night classes
         and maximum summer school enrollment:
               (3) consider plans for selective
         standards of admission when institutions
         of higher education approach capacity
         enrollment:
               (4) require, and assist the
         public senior colleges and universities,
         medical and dental units, and other
         agencies of higher education in
         developing, long-range plane for
         campus development;
               (5) endorse, or delay until the
         next succeeding session of the legislature
         has the opportunity to approve or
         disapprove, the proposed purchase of
         any real property by an institution
         of higher education, except a public
         junior college:
         rules(6) develop and publish standards,
                 and regulations to guide the
         instiiutions and agencies of higher
         education in making application for
         the approval of new construction and
         major  repair and rehabilitation of
         all buildings and facilities regardless
         of proposed use:




                         p. 3221
”   .




    The Honorable Bevington Reed - page 3 (H-762)


                  (7) ascertain that the standards
             and specifications for new construction,
             repair, and rehabilitation of all
             buildings and facilities are in accordance
             with Chapter 324, Acts of the 61et
             Legislature, Regular Session 1969, as
             amended (Article 678(g) Vernon's Texas
             Civil Statutes); and
                   (8) approve or disapprove all
             new construction and repair and rehabil-
             itation of all new buildings and
             facilities at inetitutione of higher
             education financed from any source
             other than ad valorem   tax receipts of
             the public junior colleges, provided
             that:
                        (A)  the board's consideration
                  and determination shall be limited
                  to the purpose for which the new
                  or remodeled buildings are to be
                  used and their gross dimensions
                  to assure conformity with approved
                   space utilization standards and
                  the institution's approved programs
                  and role and scope:
                        (B) the requirement of
                  approval for new construction
                   financed from other than appropriated
                   funds applies only to projects
                   the total cost of which is in
                   excess of $100,000;
                        (C) the requirement of
                   approval for major repair and
                   rehabilitation of buildings and
                   facilitiee applies only to projects
                   the total cost of which is in
                   excess of $25,000; and
                        (D) the requirement of
                   approval or disapproval by the
                   board does not apply to any new
                   construction or major repair and
                   rehabilitation project that is
                   specifically approved by the
                   legislature.




                               p. 3222
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The Honorable Bevington Reed - page 4 (H-762)


     Sub,section(8) specifically provides that when approv-
ing or disapproving new construction projects and repair and
rehabilitation of buildings the Coordinating Board's considera-
tion is limited to two factors. The Board may consider (1)
whether the purpose of the building conforms to the institution's
approved programs, role and scope, and (2) whether the gross
dimensions of the building are consistent with the Board's
space utilization standards and with the inetitution's
approved programs, role and scope. There is no express or
implied authority in subsection (8) for the Coordinating
Board to specifically regulate the expenditure of funds for
construction or rehabilitation projects. Of course, while
the Board may not epecifically regulate the expenditure of
funds, its promulgation of space utilization standards and
determination of an institution's programs, role and scope
will necessarily have an indirect effect on the amount of
funds which will be expended for construction and rehabilitation
of buildings.
     Your second question is:
          If the response to question Xl is
          negative, does the Coordinating Board
          have the authority to consider cost as
          a factor in its approval or disapproval
          of institutional requests for new construction
          and/or major repair and rehabilitation
          projects?
     As in the answer to your first question, subsection (8)
specifically limits the factors the Board may consider in
approving or disapproving construction and rehabilitation
projects, and the factors listed do not include cost.
Therefore, the Board may not utilize a cost consideration
when considering the proposals submitted to it.




                        p. 3223
The Honorable Bevington Reed - page 5 (H-762)


                       SUMMARY

            The Coordinating Board, Texas College
            and University System, does not have the
            authority to regulate the expenditure
            of construction funds or to consider
            cost as a factor in determining
            whether to approve or disapprove an
            institution's application for the
            construction, rehabilitation or repair
            of buildings or facilities at instit-
            utions of higher education. However,
            its promulgation of space utilization
            standards and determination of an
            institution's program, role and scope
            will indirectly affect the amount of
            funds expended for construction and
            rehabilitation of buildings.
                                 yery truly yours,



                                 Attorney General of Texas
APPROVED:




Opinion Committee
jwb




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