Untitled Texas Attorney General Opinion ( 1952 )

March 31, 1952
Hon. C. H:Cavness Opinion No. V-1427.
State Auditor
Capitol Station Re: Authority of State col-
Austin, Texas leges, participants
under the College Build-
ing Amendment, to use
their appropriated local
Dear Sir: funds for "Improvements**.
You have requested an opinion of this office
relating to,Section 17 of Article VII of the Texas
Constitution, the College Building Amendmentadopted in
1947.,, ~This ,amendment concerns chiefly the use of funds
for the .acquiring and constructing of buildings or other
permanent improvements by the State's institutions of
higher learning that participate in the proceeds of the
ad.valorem tax levied thereunder. You submit the fol-
lowing two questions:
Are the local funds now required
by stzkte to be deposited in the State
Treasury by all of the State's colleges or
universities, beginning with the current
biennium, State funds to the same extent,
and subject to the same restrictions for
.appropriation by the Legislature and expen-
diture by the various such institutions, as,
.general revenue funds placed in the State
Treasury from all sources?
2. What Is the meaning of the words
llbulldings or other permanent improvements"
in Section 17 where participating institu-
tions are prohlbited from receiving any
other State funds for the purpose of acquir-
ing or constructing such?
Se&&ion 17 of Article VII provides in part:
I, there is hereby levfed D 0
a stat: id'valorem tax on property of Fi;e
(5#> Cents on the One Hundred ($100.30:
. -
Hon. co Ha Cavness, page 3 (v-1427)
Treasury." Acts 52nd Le R.S. 1951, ch. 474 pti
841, codified as Art. 2 56"3c, V.C.S. In view oh the
prevailing method in 1947 when the College Building
Amendment was adopted, the contention has been ad-
vanced that. institutional receipts were. not.intended
to be classed as "state funds" within the meaning of
the provision of Section 17 which reads:.
II all such designated Institutions
of'higier learning which participate in
the.:allocation or re-allocation of such
funds shall not thereafter receive w
other state funds for the acquiring or
constructing of buildings or other perma-
. nent improvements . . ot' (Emphasis added,
throughout.)
The correctness of this contention depends
on the meaning to be ascribed to the term llotherstate
"~'fundsl' as used in Section 17 of Article VII. Broadly
speaking, state funds include ,a11 public money, from'
whatever source, which is received by or through agen-
'ties of the State. Under this broad general rule thfs
'office has held local funds to be "state funds" within
the meanin of certain specific statutes. Att'y Gen.
Ops. o-169t (19399, O-7012 (1946). However, the term
is sometimes used in a more restricted sense as pan-
ing public funds derived from limited sources. or ex*
ample, the Banking Department Self-Support and Adminis-
tration Act (Art, 342-112, V.C+) provides that the
--``, expenses incurred by the Banking Department shall be
.' paid from the fees and revenues collected by It and i&at
1:"- no such expenses shall ever be a charge against the
:. .i. "fuuds of this State." Similarly, the Plumbing License
*.
:' :'. Law (Art. 6243-101, Sec. 7, V.C.So), after providing
for the payment of expenses incurred under the act from
.$'"r:fees collected by the Plumbing Board, further provides
.*, that none of these expenses shall ever be a charge against
j; the "funds of the State of Texas." Under these statutes,
:' ' the term "state funds I1 does not include the fees col-
,$ .-
y, lected by the agencies. Certainly these fees are public
p money and their expenditure is subject to the control of
'r. the Legislature, but they have been excluded from the
CJ
.: definition of "state funds" as used in those ~statutory
:i., Provisi0ns. whilethe terminology may not be technically
g:
+; . correct, the.use of the term "state funds" in varying
.A,. :vWSes has been common practice.
- .
Hon. C. H. Cavness, page 4 (V-1427)
The meaning to be ascribed to terms used In
a constitutional provision is the meaning intended by
its adopters. Sometimes the same word is given a dif-
ferent meaning in different parts &',the Constitution.
Aransas County v. Coleman-Fulton P ure CQ., 108 Tex.
6 55 ( F 1 Davis, 217 S.W.
&'(%%s``~. Azp.l?$zi' e,"Fo,,'"Ef";. The meaning of
a term in a particular p?!ovision is determined from
the context in which it is used, and the history of the
subject matter and the purpose of the provision may be
considered in arriving at the intended meaning. Thus,
the same monies may be state funds for one purpose and
not for another, depending upon the intent of the adopt-
ers of the provision involved, as indicated from the
context and the history of the enactment.
Town of Salina, 58 N.Y.S.2d 797 (App. Div.
At the time Section 17 of Article VII was
adopted, the Legislature had placed institutional re-
ceipts in a different category from other appropriated
funds for various purposes, both in its appropriation
acts and in other statutes. For example, in Article
2647c, v&s., the Legislature provided for the flnanc-
ing of certain teacher training programs of State col-
leges from theirtllocal funds." Attly Gen. Op. V-1333
(1951). The Legislature regularly made separate appro-
priations of these funds to the collecting institution
each biennium for Its "support, maintenance, operation,
and im rovementl' or other similar purposes. see, e.g.,
H.B. 2t 6, Acts 50th Leg., 1947, ch- 339 P. 649, at P.
650. In the appropriation act of 1947 these funds are
referred to as "local funds" as distinguished from "leg-
isative appropriations," the latter term obviously mean-
ing appropriations from the General Revenue Fund or
other funds then being deposited In the .State Treasury.
&B.246,,-, sec. 10, p. 667. We may take knowledge
of the'fact that in both school and legislative circles
it was common practice to differentiate these institu-
tional receipts from other appropriated funds by the
terms t'local funds" and "state funds." While this use
of the terms was not accurate in a technical sense it
had been prevalent for a long time and was generally
understood.
In addition to the biennial appropriation of
institutional receipts for purposes which included im-
provements, the Legislature from time to time made ap-
propriations out of the General Revenue Fund or other
. -
Hon. C. H. Cavness, page 5 (V-1427)
funds in the State Treasury for buildings and other
permanent improvements at the State colleges as the
need arose and as the financial condition of the
State permitted. The fund from which these latter
appropriations were paid was ordinarily the.General
Revenue Fund, which was derived in part from a State
ad valorem tax limited by Section 9 of Article VIII
of the Constitution to 35 cents on the $100 valua-
tion. In setting up the five-cent ad valorem tax
for the college building program, Section 17 of Ar-
ticle VII also reduced the general ad valorem tax
rate by five cents, thereby indicating that the five
cents levied for "acquiring, constructing~and lnl-
tially equipping buildings, or other permanent'im-
provements at the designated institutions" was to be
substituted for funds formerly provided by the Legis-
lature from tax revenues. In our opinion lt'.tias not
intended as a substitute for institutiona i receipts
also, which were regularly and customarily treated as
being in a different category. The "other state find9
which the institutions were prohibited from receiving
were those funds in categories from which the addi-
-‘_ tional appropriations were made from time to time.
.. . Although institutional receipts are state funds within
the broad meaning of that term we are of the opinion
that It was not intended that Jhey be included in the
term as used in Section 17 of Article VII.
This construction of the term llother state
funds" in Section 17 of Article VII is borne out by
other provisions in the joint resolution submitting
., ..3 this constitutional amendment to the people. This
!:
joint resolution (S.J.R. 4, Acts 9th Leg., 1947, p.
g 1184) also submitted Section 18 of Article VII, which
tias adopted at the same election. Section 18 provides
that the Board of Regents of the University of Texas
i!
and the Board of Directors of the Agricultural and
Mechanical College of Texas shall have the right to ls-
sue bonds against the income from the Permanent Unlver-
sity Fund for the same purposes as are provided in Sec-
tion 17 for the other colleges in Texas.
It is thus seen that the purpose of section
17 was to place the schools named in that section on a
Parity with those schools which participate in the in-
come from the Permanent University Fund. Section 18
does not contain a provision prohibiting the schools af-
fected by it from receiving other state funds, but a
- .
Hon. CO H. Cavness, page 6 (v-1427)
comparable provision was already contained in Section
14 of Article VII, which provides:
" . . . no tax shall be levied, and
. . - ^..
no money appropriatea, out 0s tne Peneral.
revenue . . . for the establishment, and
erection of the buildings of the Univer-
sity of Texas."
This section has always been understood as not proub-
iting the appropriation of institutional receipts'for
the erektlon of buildings at the institutions included
in Section 18. It is clear, then, that with regard to
those schools sharing in the Permanent University Pund
there is no limitation as to the use of local funds h
the construction of permanent improvements.
To hold that "state funds" in Section 17 has
a different meaning from "general revenue" in Section
14 would be to discriminate against those schools whose
building program is set up by Section 17. This would
certainly never have been the intent of the Legislature
at the time of the proposal of the constitutional amend-
ments in question nor of the people at the time of their
adoption.
This conclusion is further borne out by the
caption of Senate Joint Resolution No. 4, sunra, which
states that the joint resolution proposes an amendment
to the Constitution "providing a method of payment for
the construction of buildings and other permanent lm-
provements." It therefore appears that the Legislature
intended that the use of the five-cent ad valorem tax
provided by Section 17 would not be the sole method of
financing the construction of permanent improvements,
and evidently the Legislature understood that there ex-
isted another method for such construction.
The argument has been advanced that institu-
tional receipts, even if not formerly within the term
"state funds" as used in Section 17 of Article VII, are
now included inthe term because they must be deposited
in the State Treasury. We cannot agree with this con-
tention. The meaning of a constitutional provision is
fixed by the intention of the adopters. Since institu-
tional receipts were not included in the intended mean-
ing of "state funds" at the time this amendment was
adopted, no subsequent action of the Legislature can en-
large the term so as to include them. The fact that the
Hon. C. H. Cavness, page 7 (v-1427)
Legislature has changed the method of deposit for
these.fund.e has not changed the meaning of the con-
stitutional provisLon.
It has been pointed out that although in-
stitutional receipts are not state funds within the
meaning of Section 17, they are nevertheless public
money within the control and disposition of the Leg-
islature end may be disposed of by that body in any
manner, within constitutional limits, which it may
deem proper. While it is within the power of the Leg-
islature to prevent the use of these funds for acquir-
ing or constructing new buildings and other permanent
improvements, it has not done so. Article 2543~ re-
quires that institutional receipts be kept separate
and apart from other funds deposited in the State
Treasury and consequently there is no impediment to
their appropriation for permanent improvements by rea-
sonof a.commingling with other funds, Sections 2 and
31 of Article V of the current appropriation bill
(H.B. 426 Acts 52nd Leg., RiS. 19% ch. 499, p. 1228,
eat pp.:1482 1472) appropriate instiJutiona1 receipts
to each collecting institution for purposes which in-
;;
; ( elude "operation,
?,I
maintenance, and improvement" and
'~"improvements and repairs." We do,not find any evi-
$-i dence~ of a legislative intent to limit the nature of
g the~improvements for which these funds may be used.
8;: I
In your second question you ask for a clarl-
k; fication of the meaning of "buildings or other perma-
g: nent Improvements" for-which the constitutional-funds
:. may be used and, conversely, for which the participat-
lng insti,tutions are prohibited from receiving any
;,$other state,funds.
.. As observed earlier in this opinion, the pur-
pose of the amendment was to provide for the expansion
Of facilities at the articipating institutions. In
QUAOpinion v-848 (19g9) it was stated that the people
and,the Legislature did not intend that the money made
available by the amendment should be used for mainte---
f nance,alterations and repairs for existing facilities,
" 'butrather that tiey intended that it should be invested
. . in new buildings and similar permanent improvements
~'which~were so badly needed after the late war. It was
Pointed out that a' construction of the amendment
;: ing use of the funds for maintenance, repair, or altera- requir-
tion of buildings then existing or later acquired with
amWaman+,funds would tend to defeat the purnose for
;:
2rE-f; Hon. C. H. Cavne~ss, page 8 (V-1427)
which it was adopted, viz., to acquire additional
buildings and other permanent improvements. In
Opinion V-931 (1949), it was further held that only
those buildings and other permanent improvements
acquired or constructed with amendment building tids
may be initially equipped at the expense of those
funds. However, the funds may be used for purposes
of clearing, grading, drainage, or other surface im-
provements in anticipation of and necessarily inci-
dental to the construction of a new building or
other permanent improvement.
We think the reasoning and holdings in our
cited opinions are sufficient to demonstrate that the
purpose of the amendment was not to cover all improve-
ments that might be needed at the designated colleges
for the thirty years of its duration. If the improve-
ment contemplated requires the construction or acqui-
sition of a new structure, for example, a building, a
wing on a building, or other permanent structure, it
would seem the amendment funds were created for such
purposes, requiring capital investments of major pro-
portions which formerly and..generallywre provided for
by specific appropriations from the general revenue.
But if the improvement contemplated is merely to alter,
remodel, or reconvert a classroom or rooms or a labora-
tory, or to improve an existing water, heating, or
sewer system or reroute a portion thereof, our former
opinions have indicated that the amendment funds were
not intended to be used for such purposes.
We will not attempt to lay down any hard and
fast line as to when there is an "acquirIngI or "con-
structionl' and when there is a repairing or alteration.
The matter rests in the first instance within the sound
discretion of the governing boards of the various insti-
tutions. The responsibility was placed there by the
people in the adoption of the amendment.
Section 17 of Article VII does not prohibit
the use of other state funds for repairs, alterations,
and improvements for which the amendment funds may not be
expended and the Legislature is free to make appropria-
tions ou E of any available funds for such improvements.
In the current appropriation act (H.B. 426, m the
Legislature has made an appropriation to each institu-
tion under an item listed as "General Revenue Appropria-
tion for General Operating Expenses." Section 30 of
. -
Hon. C. H. Cavness, page 9 (V-1427)
Article V ,of that act defines "General Operating Bx-
penses" as including " . . . improvements aa re-
pairs; physical plant operation and maintenance; . e .'I
This appropriation is therefore available for improve-
ments and repairs which are not within the scope of
the College Building Amendment.
SUMMARY .'
Institutional receipts of State institu-
tions of higher learning, commonly referred
to as "local funds," are not "other state
funds" within the meaning,of that term as
used in Section 17 of Article VII, Texas Con-
stitution (College Building Amendment), Lo-
cal funds appropriated to the colleges under
Sections 2 and 31 of Article V, H.B. 426
Acts 52nd Leg., R.S. 195l, ch. 499 p. 1328,
for purposes including ?improvemenCs``may be
used for all needed improvements, including
the acquisition or construction of buildings
or other permanent improvements.
The College Building Amendment does not
restrict the Legislature ins providing appro-
priations from the General Revenue Fund or
any other available fund for those improve-
ments which may not be financed out of the
amendment funds.
The phrase l'buildings or other permanent
improvements81 as used in Section 17 of the
College Building Amendment means, generally,
additional structures or other permanent im-
provements for the expansion of existing fa-
cilities at the colleges. It does not in-
clude repairs and alterations to existing fa-
cilities.
Yours very truly,
APPROVED:' PRICEDANIBL
Attorney General
c. IL Richards
Trial & Appellate .Division
?itzg%Y
Charles D. Mathews
First Assistant J$zeid
E. Jacobson
m:EJ:wb Assistants