                  I‘HE      A-O-Y                  GENERAL
                                    OF   TEXAS
                                 Au-       11. -
PRICE  DANIEL
ATTORNW GEWBRAL


                                         October 11, 1949

              Haa, Claude Isbell                   Opinion No. V-931.
              Executive Secretary
              Board of Regents                     Re8 Use of proeeeds   6f bonds
              State Teachers College6                  iseuedunder Art. VIZ,
              Austin, Texas                            Sec. 17 of Texas Conati-
                                                       tutiono
              Dear Sir,
                              Ye refer   to your inquiry   rrom which we quotet
                               ‘lo. At the least Texas State Teaohers
                         College,   Commerce, Texas, in a bulLding
                         heretofore   oonetructed and ocoupied by the
                         Department of Journalism and designated a8
                         Dealey- Ball, space was provided for a Col-
                         lege Printing Shop. Question.       Would-the
                         College be authorl,eed to purchase $50,000
                         worth of printing    equlpment out~of the pro-
                         ceeds mentioned In Article     7; Seotlon 17,
                         of the Constitution     of Texas, to be placed
                         in such building?
                              "2.    Could any pdrtionof the funds
                         provided for by Article   7 Section 17 of the
                         Constitution  of the State of Texas be used
                         by any Collegefor the purposes or oloarlng,
                         grading, drainage or other surface improves
                         Bents on a certain portion of the campus,
                         anticipating  subsequent ereotion  of build-
                         lnge thereon?
                               “3.’ Could funds provided for by Arti-
                         cle 7 Section 17 of the Constitution  of the
                         State of Texas be used by any College ior
                         the purpose of converting a gymnasium for
                         the exclusive  use of Women’s Department of
                         Physical F&cation?”
                        With respect to your first    question,  thlr o?-
              fice is further informed by official8    of the college
              that the building,  Dealey Hall, was acquired while Arti-
              cle VII, Section 17 of the Constitution    ~8s in Utlgatiou
Eon. Claude Isbell,    page 2 (V-931)


                          214 S,W,2d 844 (Tex, 01~; App.
                       ’ It WM acqUlMd with funds other
than those provided by that Constitutional       Amendment.
Title in fee simple rests in the State for the use and
benefit   of the college,     Space in Dealey Hall was set
aside for a college prlntlng shop (to be operated in
connection with the Department of Jouvnallsm).         Suoh
space has never been equipped, lnltlally       or otherwise,
fork that purpose0
            Section 17, Article  VII, of the Constitution
of Texas,   the College Building Amendment, provides in
parts
            ”         there 1s hereby levied
     a State’ai     Galorem tax on property oh iiGe
     cents (5#) 1 i . for the purpose of acqulr-
     lng, constructing      and lnltlally     equlpplng
     bulldings     or other permanent improvements
     at the designated InStltUtlons          of higher
     1earnlng;~and the governing board of eaoh
     of  such institutions      of higher learning is
     fully authorized to pledge all or any part
     of said funds allotted       to suoh lnetltutlon
     as hereinafter     provided,    to 8eouPe bonds
     or notes Issued for the purpose of acqUlr-
     lng, constructing      ana lnltlally     equipping
     such buildings      or other permanent l.mp*ove~
     ments at said respective        lnstitUthm3r      . *
            ”       e and all such designated instl-
     tutlona’o).    higher learning which partlcl-
     pate in e , . such funds shall not there-
     after’receive     any other state funds for the
     acquiring or constructing         of bu%lU     a or
     other pemnanent Improvements . . .” ercw
     la case of calamity).
            In our oplnlon   No, V-848,    outlining    the his-
tory of the amendment, we held It was Intended by the
Legislature   and the people to provide primarily for
the construction   or acquisition   of buildings,   and the
construction   or acquisition   of other permanent improve-
ments and that there is no provision     therein.fcur  the
repair of existing buildings with such funds;
          The question for declsl.on here la whether
that amendment a8.n be construed to authorite   the use of
the funds provided therein for “lnltlally    equipping” a
    Hon. Claude Isbell,     page 3 (V-931)


    building for college printing shop purposes which was
    acquired after the amendment became effectlve~from~eourc-
    es other than thoee provided in the ain’endment.
                It 3.6 our Interpretation    that Article    VII,
    Section 17 was Intended to provide for the construction
    or acqulslkon     of buildings   and other permanent Improve-
    ments and for the lnltlally      equipping of
    or permanent improvements.       There Is no
    amendment for “Initially      equlpplng” existing    buildings
    or buildings   acquired from sources other t+         those pro-
    vided In the amendment, Nor do the express provisions
    of that amendment warrant such a construction         by lmpl$-
    cati on.
                 It vi11 be noted also that the amendment does
    not say “for the purpose of acqtirl~,          constructing    s
    lnltlally    6qulapiaE; build+    8 . . .    It uses the con-
    Jun$tlve word and rater &han the disjunctive              word
              The woti “a.nd”.as used herein     when considered
    ai$      with the spIrIt and context of’the amendment, pre-
    cludes,‘we     believe, construction   thereof as being lnter-
    changeable with “or.”       2 Sutherland’s   Statutory Construc-
    tlon (3rd Ed. 1943) 450, Sec. 4923,
              Accordingly,  Dsaley Hall not having been ac-
    quired or constructed  wlth~ConstitutIona1    Amendment
    building funds (Tex. Const., Art. VII, Sec. 17), those
    funds may not be used for initially    equipping this
    builaiag,
                Cacernlng    your seuond question,       the amendment
    authorizes   the governing board of the college to pledge
    the tax funds to be provided to secure bond0 or note8 Ia-
    sued for the purpose of conatruoting         bulldlngs    or other
)   permanent improvements at the respective          InstItutIonsi
    You state that’ the college       (pursuant to and lntialpatIng
    subsequent erection     of a new bulldlng)      desires nov to
    use a portbn~or     its  amendment     funds for clearing,     grad-
    ing, drainage, and other surface Improvement8 on that
    part of the campus on which the building Is to be oon-
    strutted.    We think that such Improvements may properly
    be considered either as “other permanent improvements”
    or as necessarily    incidental     to the construction     of a
    new building    on the campus. The funds provided and to
    be allotted   under the amendment may be expended by then
    governing beard bf the college         for the p\urposes stated.
               For WYBP to your thlPd question,           we quote
    from Opinion HO; v-848 as follower
Hon. Claude Isbell,   page 4 (V-931)


            “It 1s conceivable   that the shell of a
     building could be so completely remade and
     altered that the college would be conslder-
     ed as thereby ‘acquiring’     or ~constructing t
     a new bulldlng or Improvement . o . We have
     no particular    fact8 before ‘us and vi11 not
     attempt to lay down any hard and fast line
     as to when there la an ‘acquirlngr      or (con-
     structlon~ and when thePe Is a repairing       or
     alteration.    The matter rests in the first
     Instance wlthln the sound discretion      of the
     governing boapds of the various lnstltutlone.
     The responslbllltg    MS placed there by the
     people ln the adoption of the amendment,
     The good faith and sound judgment of such
     governing boards will be given due respect
     by the courts should their decisions      be
     questioned.”
Fw?ther, Opinion Xo. V-848 among other matters held that
money received from college amendment bonds nmy not be
used to make ~epalrs to existing buildings.


           Only those buildingsolr other pernaracnt
     improvements acquired OP constructed  with
     Constitutional  Amendment buLlding funds %x0
     Cons& Art. VIS, Sea* 17) may be initial L
     equipped at the expense of Chat fund.
           Those funds may be used f a  purposes of
     cleqMng,   @ad&kg,  Winage,    OF other SW@-
     race dmprovements  on a portion of IBat Texas
     State Teachers College campus, enticlpat
     subsequent erectionof buildings    thereanw9’ th
     college amendmentfunds.
        4
                                    Yours very truly,
                                 ATTORRE’OFSERAL
                                         Y      OF TXXAS


                                  -
                                       Chester   2. Oll.isoo
                                                  Aasleknt
