     THE




                     March 6,   1952

Hon. Olin Culberson, Chairman
Railroad Commission of Texas
Austin, Texas           Opinion FJo.V-1417
                          Re:   Legality of altering, re-
                                pairing, and extending
                                the existing air condi-
                                tioning system for the
                                eleventh floor of the
Dear Sir:                       Tribune Building.
            Your request for an opinion reads, in part, as
follows:
          "The existing heating, ventilating, and
     cooling system for the Eleventh Floor of the
     Tribune Building, Austin, Texas, is not ade-
     quate. We would like to make some alterations,
     repairs and extensions of the existing heating
     and air conditioning system.
          "This system was originally designed for
     residential penthouse occupancy. The ~,orlglnal
     human occupancy load for the cooling system
     was based on a maximum of three or four people.
     The present full-time employees in this space
     number approximately ten plus any v,lsltors
     that may be in the offices. . . .
          "Your opinion as to whether ue can use
     State funds to make these alterations, repairs
     and extensions of the existing heating and air
     conditioning systems, Eleventh Floor, Tribune
     Building, Austin, Texas, is requested."
          House Concurrent Resolution 38, 52nd Leg., R.S.
1951, p. 1563, provides, In patit,as follows:
          "Whereas, The Legislature finds that it
     Is economically unsound to air condition State
     buildings, except new construction, or to pur-
     chase room air conditioning machinery or units
     for use therein; and . . .
Hon. Olin Culberson, page 2   (V-1417)


         "Resolved by the House of Representa-
    tives, the Senate of Texas concurring, That
    the policy of the State of Texas Is not to
    permit the use of State funds for air condi-
    tioning State buildings, except new construc-
    tion, or for the purchase of room air condl-
    tloniffgmachinery or units; and, be it further
    . . .

          In Att'g Gen. Op. V-1269 (1951) we construed
the above quoted provisions, holding that this resolu-
tlon prohibits State agencies from purchasing new air
conditioning equipment, except In new construction, In
the absence of a specific appropriation for such a pur-
chase. There Is no such specific appropriation In the
current appropriation bill Douse Bill 426, Acts 52nd
Leg., R.S. 1951, ch. 495, p. 1228 to the Railroad Com-
mission. However, "Item 4" of ti?e appropriation to
"Capitol and State Office Buildings" provides funds for
"miscellaneous repairs, Including repairs to steam,
electric, and air condltlonlng equipment," and "recon-
ditioning cooling tower" in the Tribune Building. R.B.
426, supra, at p. 1328.
          We have previously held that air conditioning
ln~tallatlons which were in use prior to the passage of
House Concurrent Resolution 38 may continue to be oper-
ated, repaired, and maintained, even though no specific
appropriation has been made for that purpose. Att'y
Gen. Op. V-1269, au ra. Thus, the Railroad Commission,
which was operating
                 91 a r conditioning equipment In the
Tribune Building before the resolution was passed, may
continue to operate and malntaln its equipment. It re-
mains, however, to determine whether the proposed work
set out in your request may be carried out under the au-
thority to repair and maintain existing air conditioning
facilities.
          The terms "repair" and "maintain," and other
similar terms, have been judicially defined in decisions
too numerous to be exhaustively reviewed here. "Repair"
contemplates the restoration of a thing to Its original
condition or to a sound state after injury, decay, or
any other form of depreciation. To repair is to mend.
The word "maintain" has been held to embrece "repair,"
and It lmpl!es the upkeep of something already in exist-
ence e To maintain equipment ia to keep It In good repair.
.   .,




         Hon. Olin Culberson, page 3   (V-1417)


         These terms are discussed in M. K. & T. Ry. Co. v. Bryan,
         107 S.W. 572, 576 (Tex. Clv. App.lgOt%J, as follows:

                  "The word 'repair,' as defined by
             Webster, means 'to restore to a sound
             or good state after decay, Injury, dl-
             lapldation, or partial destruction';
             and the phrase 'in good repair' means
             in such state of reparation, and Implies
             the existence of the thing to be repaired.
             It has been held that the words 'maintain'
             and 'repair' mean practically one and the
             same thing. . . .
                   However, work which substantially changes theme
         character or enhances the value of property is not main-
         tenance or repair work. The distinction has, in the
         past, been recognized by this office. Att'y Gen. Op.
         O-1216 (1939). When changing conditions or the inevlt-
         able passage of time requires the substitution of modern
         for antiquated equipment, or that extraordinary repairs
         be made, theae are not "repairs" as such, but 'improve-
         ments" or "altere.tlons." Delta Cotton Oil Co. v. Love-
         lace, 196 SO. 644 (Miss. Sc'1940).    As applied to the
         upkeep of machinery, the words "repair" and "replace"
         contemplate 0~1~ a restoration of the equipment to Its
         original condition, not the employmeiitof expertsto re-
         design and~reconstruct It. Alleghei. County v. Maryland_
         ~~~~~~~~~;,,,~~,";,Sup". 672 (WiD. Pt. 1941)': Under the
                              there can be no enlargement or im-
         provement except iniofar as the work of repairing neces-
         sarily enlarges and Improves. Whlte v. Perkins, 65 S.W.
         26 423 (Tex. Civ. App. 1933).
                    The propohedremodeling work contemplates a
         considerable enlargement of the air condltlonlng system
         presently bslng used by the Rallroad Commission. The
         contractor  proposes to Install new mechanical equipment,
         as well as to Increase the capacity of the machinery
         which Is now In use, In short, an Installation orig-
         inally designed to care for a maximum of four persons
         Is to be enlarged to accommodate a minimum of ten. Such
         a project  is not comparable to the ordinary maintenance
         and repair work which this office held to be authorized
         under the provisions of House Concurrent Resolution 38.
         Therefore, you are advised that It is our opinion that
         the Railroad Conrmlssionmay not use State funds for the
         purpose of making this proposed enlargement of the air
         conditioning system for its offices on the eleventh floor
         of the Tribune Building.
Hon. Olin Culberson,,page 4, (V&1417)


           In Oglnlon v-1269, supra, ,thls,officedefined
an .alr’condltionlng unit as “an’apparatus used to re-
duce the temperature and affect the humidity of i&r-air
inn   enclosed space.” It would be unreasonable to as-
sume that the resolution was passed In an effort to pro-
hibit State agencies from purchasing heating equipment.
It is our opinion, therefore, that House Concurrent
Resolution 38 does not In any way restrict the authority
to enlarge the heating plant which Is now being used by
the Railroad Commlsslon.




              House Concurrent Resolution 38, .52nd
        Leg., R.S. 1951, prohibits a State agency
        from substantially enlarging and increasing
        the capacity of an air conditioning lnstalla-
        tlon which was In operation before the passage
        of the resolution. This resolution, however,
        has no effect on the authority of an sgellcy
        ,to purchase or enlarge its heating equipment.

APPROVED:                         Yours very truly,
David 8’;irons                      PRICE DANIEL
Administrative Assistant          Attorney General
E. Jacobson
Reviewing Assistant
                                  m (!AL.-AG-4             ,!(i
Charles D. Mathews                Calvin B. Garwood, Jr.
First Assistant                                Assistant

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