Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
June lo,2004
Mr. John A. Wells Opinion No. GA-0200
Executive Director
Texas Military Facilities Commission Re: Whether Government Code section 435.013(a)
2200 West 35th Street, Building 64 grants exclusive authority to the Texas Military
Austin, Texas 78703 Facilities Commission to construct, repair, and
maintain facilities on its property (RQ-0147-GA)
Dear Mr. Wells:
You ask whether Government Code section 435.013(a) grants exclusive authority to the
Texas Military Facilities Commission (the “Commission”) to construct, repair, and maintain
facilities on its property.’ See TEX. GOV’T CODE ANN. 0 435.013(a) (Vernon 1998).
I. Backmound
You ask two questions concerning the Commission’s authority in relation to the authority of
the Adjutant General’s Department (the “Department”). The legislature established the Commission
in 1935 as the Texas National Guard Armory Board “to administer a state program to build
and maintain National Guard armories.“2 Government Code chapter 435 now governs the
Commission’s authority. See id. $9 435.001-.048 (Vernon 1998 & Supp. 2004). Althoughrenamed
in 1997, the Commission’s duty to construct and maintain National Guard armories has not
changed.3
The Department’s authority is governed by Government Code chapter 43 1. The Adjutant
General, who “controls the military department of the state” and is the head of the Department, is
“subordinate only to the governor in matters pertaining to the military department of the state and
‘See Letter from Mr. John A. Wells, Executive Director, Texas Military Facilities Commission, to Honorable
Greg Abbott, Texas Attorney General (Dec. 12, 2003) (on file with Opinion Committee, also uvuiZubZe at
http://www.oag.state.tx.us) [hereinafter Request Letter].
2T``~ SUNSETADVISORYCOMMISSION, STAFF REPORT,ADJUTANT GENERAL’S DEPARTMENT/NATIONAL
GUARD ARMORY BOARD31(1996);see also Act of May 7,1935,44th Leg., R.S., ch. 184,1935 Tex. Gen. Laws 462.
3Compure Act of May 7, 1935,44th Leg., R.S., ch. 184,1935 Tex. Gen. Laws 462, with TEX. GOV’TCODE
ANN. Q 435.013(a) (Vernon 1998).
Mr. John A. Wells - Page 2 (GA-0200)
the state military forces. ” Id. 8 43 1.022(a) (Vernon Supp. 2004).4 The “state military forces” include
“the Texas National Guard, the Texas State Guard, and any other active militia or military force
organized under state law.” Id. 9 43 l.OOl(3) (Vernon 1998).
II. Analvsis
Your first question involves a 1988 attorney general opinion. You explain that although the
Commission had express authority under section 435.013 to acquire, construct, rent, control,
maintain, and operate armories in Texas, Attorney General Opinion JM-885 concluded that its
“authority was ‘not necessarily exclusive, “’ Request Letter, supra note 1, at 1, because the Adjutant
General’s broad powers under chapter 43 1 provided “implied authority to build, maintain, and repair
buildings necessary to carry out his responsibilities. ” Tex. Att’y Gen. Op. No. JM-885 (1988) at 4.
You point out that in 1997 the legislature amended section 435.013 to provide the Commission with
“exclusive authority”over certain matters. See TEX. GOV’T CODE ANN. 4 435 .013(a) (Vernon 1998).
You ask whether “the 1997 amendment to section 435.013 . . . effectively repeal[ed] that portion of
JM-885 which concluded that the Adjutant General possessed ‘implied authority to build, maintain,
and repair buildings necessary to carry out his responsibilities. “’ Request Letter, supra note 1, at 2.
Prior to its amendment in 1997, Government Code section 435.013(a) provided:
The [Texas National Guard Armory Board] is a public
authority and a body politic and corporate and has all powers
necessary for the acquisition, construction, rental, control,
maintenance and operation, of Texas National Guard or Texas State
Guard armories, including all property and equipment necessary or
useful in connection with the armories.
Act ofApr. 3O,l987,7Oth Leg., R.S., ch. 147,§ 1, sec. 435.013,1987 Tex. Gen. Laws 316,475-76.
In concluding that the Commission’s authority under this statute was not exclusive, Attorney General
Opinion J-M-885 reasoned that a
brief summary of important provisions governing the Armory Board
shows its close connection with the [Department]. . . . Although the
Armory Board has express power to construct buildings for the
National Guard, it does not necessarily have exclusive power over
construction. The adjutant general has broad powers which, in our
opinion, include implied authority to build, maintain, and repair
buildings necessary to carry out his responsibilities.
Tex. Att’y Gen. Op. No. JM-885 (1988) at 4.
4The Department was initially established to coordinate volunteer forces. The Department “continued after
statehood in 1845 and was redefined by the Legislature in 1905 to reflect its responsibility over the National Guard,
which today consists of both Axmy and Air Guards. ” TEXASSUNSETADVISORYCOMMISSION,STAFFREPORT,ADJIJTANT
GENERAL’SDEPARTMENT/NATIONAL GUARD AR``ORYBOARD 15 ( 1996).
Mr. John A. Wells - Page 3 (GA-0200)
In 1997, the legislature amended chapters 431 and 435 in response to Sunset Advisory
Commission recommendations. Senate Bill 352 amended chapter 435, and Senate Bill 353 amended
chapter 43 1. The legislature’s amendments to chapter 43 1 did not affect JM-885’s analysis of the
Department’s authority, but an amendment to chapter 435 affects JM-885. As you point out, that
amendment added the following language to section 435.013: “The commission is the exclusive
authority for the construction, repair, and maintenance of National Guard armories, facilities, and
improvements owned by the state located on commission property.” TEX. GOV'T CODE ANN. $
435.013(a) (Vernon 1998) (emphasis added). The use ofthe word “exclusive” appears to be a direct
response to JM-885. Although JM-885 is not mentioned in the legislative history, a bill analysis
states that Senate Bill 352 “clarifies that [the Commission] is the ‘sole authority’ for the
construction, maintenance, repair and disposition of National Guard facilities located on
[Commission]property.” HOUSECOMM.ONSTATEFEDERAL &INTEFWATIONAL.RELATIONS, BILL
ANALYSIS,Tex. S.B. 352,75th Leg., R.S. (1997). The amendment’s plain language and the bill
analysis indicate that the legislature intended to give the Commission exclusive authority for the
construction, repair, and maintenance of state-owned facilities on Commission property. To the
extent that Attorney General Opinion JM-885 concludes that the Commission’s power to construct,
repair, and maintain facilities on its property is not exclusive, it is superseded by the 1997
amendment.
We emphasize, however, that the 1997 amendment specifies that the Commission’s exclusive
authority is limited to facilities located on Commission property. Chapters 43 1 and 435 distinguish
between Department-controlled and Commission property. Section 431.030, which pertains to
property under the Department’s control, provides that the Department, on behalf of the state, may
lease property from the Commission and may transfer “all or part of a state-owned Texas National
Guard camp and the land, improvements, [and] buildings . . . to the . . . Commission for
administration, sale, or other proper disposal.” TEX. GOV'T CODE ANN. $j431.030(a),(c) (Vernon
1998). Section 435.021 authorizes the Commission to acquire and manage property:
(a) The commission by gift, lease, or purchase may acquire
real and personal property, including leasehold estates in real
property, for use for any purpose the commission considers necessary
in connection with the Texas National Guard or for the use of units
of the Texas National Guard.
(c) The commission may hold, manage, maintain, lease, or sell
its property and may pledge all or part of the rents, issues, and profits
of the property.
Id. 3 435.021(a), (c). Section 435.022 provides that the Commission “may construct buildings on
its real property.” Id. 9 435.022(a). The Commission may also “construct a building on land
comprising a state camp” but “only on a site selected and described by a board of offkers” who have
been selected by the Department. Id. 5 435.022(b). Section 435.022 further provides that “[i]f the
commission constructs a building on the site selected and described, the site becomes the property
Mr. John A. Wells - Page 4 (GA-0200)
of the commission for all purposes of this chapter as if the site had been acquired by gift to or
purchase by the commission. ” Id. 4 435.022(b) (emphasis added).5 When Commission property is
“fully paid for and free of liens, and all obligations incurred in connection with the acquisition and
construction of the property have been fully paid, ” the Commission “may donate and transfer the
property to the state by appropriate instruments of transfer.” Id. 9 435.024.
Other statutes also recognize the distinction between Commission and Department property.
See, e.g., id. $9 435.023(a) (authorizing the Commission to lease a Commission building or site to
the state pursuant to a lease executed by the Adjutant General), 435.025(a) (authorizing the
Commission to dispose of surplus real property owned by the Commission), 435.025(b) (authorizing
the Commission to receive from the Adjutant General and to administer or dispose of a state-owned
national guard camp); TEX. NAT. REB.CODE ANN. 9 3 1.156(a) (Vernon Supp. 2004) (the General
Land Office “shall review the real property inventory of each state agency not less than every four
.years”), (e) (“In any year that the division will evaluate real property under the management and
control of the [Department] or the [Commission], the division shall notify the [Department] and the
[Clommission” before the evaluation begins).
The Commission’s exclusive authority under the 1997 amendment to section 435.013(a) is
limited to the construction, repair, and maintenance of facilities owned by the state on Commission
property. See TEX. GOV’T CODE ANN. $435.013(a) (Vernon 1998). Thus, the 1997 amendment
does not affect Attorney General Opinion JM-885’s conclusion with respect to the Department’s
authority over the construction, repair, and maintenance of facilities located on other property.
You next ask about section 2165.007 of the Government Code, which was enacted in 2003
by the Seventy-eighth Legislature in House Bill 3042. Section 2165.007 requires the Texas Building
and Procurement Commission (the “TBPC”) to provide management services with respect to certain
state facilities:
(a) In this section, “facilities management services” means
any state agency facilities management service that is not unique to
carrying out a program of the agency. The term includes services
related to facilities construction, facilities management, general
building and grounds maintenance, cabling, and facility
reconfiguration.
(b) Notwithstanding any other law, the commission shall
provide facilities management services in relation to all state agency
’ facilities in Travis County or a county adjacent to Travis County. The
commission’s duty does not apply to:
'See also SUNSETADVISORYCOMMISSION,STAFFREPORT,ADJUTANTGENERAL'SDEPARTMENT/NATIONAL
GUARD ARMORY BOARD 32 (1996) (“[i]n addition to armory construction, [the Commission] maintains.. .106 armories
on state land [and] also maintains seven armories located on federal land through interagency agreement with [the
Department]“).
Mr. John A. Wells - Page 5 (GA-0200)
(1) a facility owned or operated by an
institution of higher education;
(2) military facilities[.]
TEX.GOV’T CODE ANN. 9 2165.007 (Vernon Supp. 2004) (emphasis added). You ask whether “the
exclusion of military facilities from the [TBPC’s] duty imposed by [House Bill] 3042 expressly or
impliedly vest[s] in the Adjutant General’s Department the authority to enter into construction,
repair, or maintenance cont[r]acts on property described in Section 435.013.” Request Letter, supra
note 1, at 2.
Section 2 165.007 requires the TBPC to “provide facilities management services in relation
to all state agency facilities in Travis County or a county adjacent to Travis County,” but “does not
apply to . . . military facilities. ” TEX. GOV’T CODE ANN. $2165.007(b)(2) (Vernon Supp. 2004).
Although no Texas statute defines the term “military facilities, ” the term “military” clearly refers to
the state military forces such as the Texas National Guard. See, e.g., TEX. GOV’T CODE ANN. $4
43 l.OOl(3) (Vernon 1998) (“‘[sItate military forces’ means the Texas National Guard, the Texas
State Guard, and any other active militia or military force organized under state law”), 432.001(g)
(Vernon Supp. 2004) (“‘[m]ilitary’ refers to all or part of the state military forces”); see also id. 3
311.011(b) (Vernon 1998) (“[wlords . . . that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly”). “Facility” is a broad
term that is generally understood to mean “something . . . that is built, installed, or established to
serve a particular purpose. ))MERRIAMWEBSTERCOLLEGIATEDICTIONARY416( lOthed.l%U);see
also THENEW OXFORD AMERICAN DICTIONARY 606 (200 1) (defining “facility” as “an establishment
set up to fulfill a particular function or provide a particular service”); TEX. GOV'T CODE ANN. $
3ll.Oll(a)(Vernon 1998)( “[w ] or d s and phrases shall be read in context and construed according
to the rules of grammar and common usage”). Texas law indicates that Department-controlled and
Commission property is regarded as state military property distinct from other state property. See,
e.g., TEX.NAT. RES.CODE ANN. $3 1.156(a) (Vernon Supp. 2004) (providing for special inventory
of real property under the management and control of the Department or the Commission); TEX.
GOV’T CODE ANN. $ 431.030(e) (Vernon 1998) (Department required to “produce a report
evaluating the military use of any real property under the management and control of the
[Department] or the [Commission]“). Clearly, the term “military facilities” in section 2165.007
includes facilities such as armories located on Commission property.
You ask whether the exclusion of military facilities from section 2165.007 vests the
Department with authority to enter into construction, repair, or maintenance contracts on property
described in section 435.013(a). See Request Letter, supra note 1, at 2. Section 435.013(a)
expressly grants the Commission exclusive authority with respect to the construction, repair, and
maintenance of facilities on Commission property. See TEX. GOV’T CODE ANN. $ 435.013(a)
(Vernon 1998). In addition, the Commission is expressly authorized to “enter into contracts in
connection with any matter within its purposes or duties.” Id. 5 435.013(b)(2). The exclusion of
military facilities from the TBPC’s duty to manage state facilities under section 2165.007 does not
authorize the Department to enter construction, repair, or maintenance contracts that are within the
Commission’s exclusive authority under section 435.013(a).
Mr. John A. Wells - Page 6 (GA-0200)
SUMMARY
A 1997 amendment to Government Code section435.013(a),
which gives the Texas Military Facilities Commission exclusive
authority for the construction, repair, and maintenance of state-owned
facilities located on Commission property, partially supersedes
Attorney General Opinion JM-885 (1988). The exclusion of military
facilities from the Texas Building and Procurement Commission’s
duty to manage certain state facilities under section 2 165.007 of the
Government Code does not authorize the Adjutant General’s
Department to enter construction, repair, or maintenance contracts
that are within the Texas Military Facilities Commission’s exclusive
authority under section 435.013(a).
Attorney General Opinion JM-885 (1988) is superseded to the
extent it is inconsistent with this opinion.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary Crouter
Assistant Attorney General, Opinion Cornmittee