Untitled Texas Attorney General Opinion ( 1980 )

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The Attorney General of Texas
January 14, 1980
MARK WHITE
Attorney General
Honorable William P. Clements, Jr. Opinion No. Hw-128
Governor of the State of Texas
Capitol Building Re: Construction of a building by
Austin, Texas the Department of Human
Resources.
Dear Governor Clementm
You have requested our opinion on a number of questions regarding the
construction of a building by the Texas Department of Human Resources
[hereinafter DHR]. In Attorney General Opinion MW-51 (1979), we held that
you were without authority to veto the following provision of the General
Appropriations Act [hereinafter referred to as rider 471:
(47) The Texas Department of Human Resources is
hereby authorized and directed to construct a state
office building, in cooperation with the State Board
of Control, consisting of NTE 530,000 gross square
feet (400,000 net square feet). No General Revenue,
Children’s Assistance, or Medical Assistance funds
may be used for this purpose.
It is the intent of the Legislature that the building
house the central administrative offices of both the
Texas Department of Human Resources and the Texas
Youth Council. Further, it is the intent of the
Legislature that the building be constructed on State
land currently owned by the Texas Department of
Mental Health and Mental Retardation. The Board of
Mental Health and Mental Retardation is hereby
authorized and directed to transfer to the State
Board of Control record title to a certain triangulal-
shaped tract of land 29 acres, more or less, in the
north part of the City of Austin, bounded on the west
by West Guadalupe Street and North Lamar
Boulevard, on the north by Slst Street, on the east by
Guadalupe Street and having the southern tip of the
tract at the intersection of Guadalupe and West
Guadalupe Streets, together with all records held by
it concerning this tract.
P. 405
. .
Honorable William P. Clements, Jr. - Page Two (MW-128)
In reaching our conclusion, we said that rider 47 does not itself set aside or dedicate
funds, but merely directs and qualifies the use of funds appropriated elsewhere. We noted
that rider 6 to the DHR appropriation, which rider appropriates earned federal funds,
constitutes one source of funds available for the construction of the building contemplated
by rider 47. After the funds. have been earned by the state they are freed from federal
control. Rider 6 provides:
(6) The appropriations herein made may be used to match federal
funds granted to the state for the payment of personal services,
travel and other necessary expenses in connection with the
administration and operation of a state program of public welfare
services. The Texas Department of Human Resources is hereby
authorized to receive and disburse in accordance with plans
acceptable to the responsible federal agency, all federal moneys
that are made available (including grants, earnings, allotments,
refunds, and reimbursements) to the state for such purposes and all
fees authorized by federal law, and to receive, administer, and
disburse federal funds for federal programs in accordance with
plans agreed upon by the Department of Human Resources and the
responsible federal agency, and such other activities as come under
the authority of the Department of Human Resources, and such
moneys are appropriated to the specific purpose or purposes for
which they are granted or otherwise made available.
Rider 6 authorizes DHR to receive and disburse three categories of funds: (1) those
made available “for such purposes,” i.e., payment of personal services, travel and other
necessary expenses in connection with the administration and operation of a state program
of public welfare services; and (2) those made available “for federal programs . . . and
(3) such other activities as come under the authority of the Department of Human
Resources.” The rider appropriates the funds “to the specific purpose or purposes for
which they are granted or otherwise made available.” Expenditure of the third category
of funds: will not require federal approval.
We have been advised that DHR anticipates the availability of earned federal funds
in an amount exceeding $178 million for the present biennium. Of this amount, only
$60,650,000 has been specifically earmarked by the legislature for financing line items.
As a result, earned federal funds of approximately $117 million should be available to
finance the construction of the building described in rider 47. It is anticipated that the
building will cost approximately $40 million. Since the Board of Human Resources is
“responsible for the adoption of policies and rules for the government of the department,”
the board is authorized to determine the purpose or purposes for which non-earmarked
funds are to be expended, and the amount to be designated for each such purpose. Human
Resources Code, section 21.003.
We will now address your particular questions.
1. Which particular funds appropriated by rider 6 may be used to
finance the construction of the building for the Department
of Human Resources?
P- 406
. .
Honorable William P. Clements, Jr. - Page Three (Mw-129)
Funds available for construction of the DHR building are those included within the third
category described above.
2. What is the monetary limit on such funds that may be
expended for the construction of this building?
The entire amount of earned federal funds under category three, less the $60,650,000
specifically earmarked by the legislature, may be expended for the construction of the
DHR building. Under present estimates, approximately $117 million should thus be
available.
3. If $100 million or $200 million is available from the particular
fund or funds that may be used to finance the building, may
any or all of that amount be expended?
As we have said previously, the entire amount, less that specifically earmarked, may be
expended. Of course, it is anticipated that the building will cost substantially less than
that amount.
4. Is the construction of a building ‘a purpose for which federal
moneys are made available within the meaning of rider 6’?
Yes, since earned federal funds are to be used, and they are available for any purpose.
5. Is the construction of a building a federal program within the
meaning of rider 6, and, if so, must the Department of Human
Resources and the responsible federal agency agree upon
plans for the construction of this building?
Since the second category of funds is not relevant to this expenditure, it is not necessary
that we answer this question.
6. Is the construction of a building an activity that comes under
the authority of the Department of Human Resources, and, if
the Department of Human Resources has such authority,
where is that authority found in the statutes?
Yes. DHR is granted broad authority “to accept, expend, and transfer funds” and to “enter
into agreements” with other state agencies to accomplish the purpose of assisting needy
families and individuals. Human Resources Code 5 22.002(e). We cannot say that
construction of a building will not assist in accomplishing this purpose. Furthermore,
sections 5.01, 5.04, 5.16 and 5.17 of the new State Purchasing and General Services Act,
article 601b, V.T.C.S., specify the procedure for cooperation between DHR and the State
Purchasing and General Services Commission [formerly the Board of Control] in
constructing a building. We believe that these provisions furnish statutory authority
sufficient to sustain the validity of rider 47 which, as we have noted merely directs or
qualifies the use of funds appropriated elsewhere. -See Jessen Associates, Inc. v. Bullock,
531 S.W.2d 593 (Tex. 1975).
p. 407
Honorable William P. Clements, Jr. - Page Four (MW-128)
7. Have moneys been granted or otherwise made available for
the s ecific purpose of constructing a building within the
meamng
-FLT.o ruder 6?
Although DHR is not granted specific statutory authority to construct the building at
issue, we believe that the statutes described in our answer to question 6 furnish ample
statutory authority to sustain the validity of riders 6 and 47, which do make funds
available for the specific purpose of constructing a building.
8. Are the fun& appcpriated for the construction of a building
restricted to those appropriated in rider 6?
No, fun& are also available under article 5, section 19 of the General Appropriations Act,
but we believe that such funds are essentially the same as those described in rider 6.
9. Can any of the funds appropriated in Section 19 of Article V
of H.B. 558 be utilized for the purpose of constructing a
building for the Department of Human Resources?
Yes, but as we have noted such fun& are essentially the same as those described in rider
6.
10. Who has the responsibility for determining the purposes for
which funds appropriated by rider 6 can be utilized, and has
this been accomplished7
As we have previously indicated the Board of Human Resources has the responsibility for
determining the purposes for which rider 6 funds may be utilized, and it is our
understandng that the Board has done so.
1L Who has the responsibility for determining the amount of
funds that can be utilized for a specific purpose under rider 6,
and has this been accomplished?
Again, the Board of Human Resources has this responsibility, and we have been advised
that it has done so.
12. What are the purposes for which the funds appropriated in
rider 6 can be utilized and what is the amount appropriated
for each purpose?
Rider 6 funds may be expended under the three categories described above. The amount
appropriated under each category depends upon the amount made available to DHR under
various agreements with the federal government. We have previously indicated the
approximate amount available.
13. Are the funds appropriated in rider 6 ‘to the specific purpose
or purposes for which they are granted or otherwise made
available’?
p. 408
Honorable William P. Clements, Jr. - Page Five (MW-1281
Yes, according to the language of rider 6.
14. Who has the responsibility for determining the ‘specific
purpose or purposes’ for which these funds are granted or
otherwise made available, and has this been accomplished in
rider 6?
The answer to this question is the same as our answer toquestion number 10.
15. Who has the responsibility for determining the amount of
funds that are to be used for the ‘specific purpose or purposes’
for which these fun& are granted or otherwise made
available, and has this been accomplished under rider 6?
The answer to this question is the same as our answer toquestion number 1L
16. Are the funds appropriated by rider 6 restricted to ‘plans
agreed upon by the Department of Human Resources and the
responsible federal agency and such other activities as come
under the authority of the Department of Human Resources’?
The three categories of fun& described in rider 6 have been discussed above.
17. Can the Department of Human Resources expend any federal
funds received without having approval of the responsible
federal agency ?
Yes, expendture of the third category of funcb described in rider 6 doea not require
federal approval.
18. In relation to Article V, Section 19 of H.B. 558, are the funds
appropriated by this section ‘to such agencies for the purposes
for which the federal grant, allocation, aid, payment or
reimbursement was made’ subject to the legislative mandates
contained in said article and section?
Yes.
19. Is this the contrdling and most specific appropriation
authority and expression of legislative intent in relation to
the funds appropriated by said rider? If it is not, what is?
As we have noted these funds are essentially the same as those described in rider 6, which
is the more specific appropriation.
20. Who has the responsibility for determining the purposes for
which funds appropriated by Article V, Section 19 can be
utilized, and has this been accomplished?
P. 409
Honorable William P. Clements, Jr. - Page Six (NW-128)
As with rider 6 funds, the Board of Human Resources has such responsibility, and it is our
under&an&g that this has been accomplished
2L Who has the responsibility for determining the amount of
funds appropriated by Article V, Section 19 that can be
utilized for a specific purpose, and has this been
accomplished7
Again, the Board of Human Resources has this responsibility, and we are advised that it
has been accomplished
22. What are the purposes for which the funds appropriated in
Article V, Section 19 can be utilized and what is the amount
appropriated for each purpose?
Article V, section 19 funds, being essentially the same as those described in rider 6, may
be expended for the same purposes and in the same amounts as rider 6 funds. Therefore,
our answer toquestion number 12 is contrdling here.
23. Is rider 47 unconstitutional in that it attempts to amend
general law by designating a particular site for the location
of the Department of Human Resources in violation of
Article 695(c), V.A.C.S.?
No, becaize as we said in our answer to question number 6, general law is sufficient to
support an appropriation such as rider 47.
24. Must the construction of the Department of Human
Resources building comply with H.B. 1673, effective
September 1,1979?
Yes.
25. If so, since federal fun& are being used to construct this
building is it a requirement that there be an enabling federal
statute in accordance with H.B. 1673, Section 5.15(h), and if
there must, what enabling statute authorizes the construction
of this building?
Section 5.15(h) provides:
(h) The commission may waive, suspend, or modify any provision
of this article which shall be in conflict with any federal statute or
any rule, regulation, or administrative procedure of any federel
agency where such waiver, suspension, or modification shall be
essential to the receipt of federal funds for any project. In the
case of any project wholly financed from federal fun&, any
P. 410
Honorable William P. Clements, Jr. - Page Seven (Hw-128)
standards required by the enabling federal statute or required by
the rules and regulations of the administering federal agency shall
be-controlling.
Section 5.15(h) does not require a federal statute. It provides only that any standa&
required by federal statute or regulation shall control over conflicting provisions of article
601b.
26. Must the construction of the Department of Human
Resources building comply with H.B. 1673?
Yes. This question is a duplicate of question number 24.
27. a) If not, under what constitutional or statutory authority is
the Department of Human Resources project exempt?
In light of our answer toquestion 26, no answer is required
b) If it must, where in H.B. 558 is there an appropriation to
the State Purchasing and General Services Commission for
the construction of this building?
The appropriation is to the Department of Human Resources rather than to the
Commission
28. By not making an appropriation to the Commission, does rider
6, Article V, Section 19, and rider 47 of H.B. 558 violate
Article 3, Section 35 of the Texas Constitution by amending
and modifying general law contained in H.B. 1673?
No. See answers toquestion numbers 6 and 23.
29. Before the appcpriation of money for the construction of the
Department of Human Resources building, was it necessary
for a project analysis to be submitted to the budget agencies
of this Statein accordance with Article 678f, V.T.C.S.?
Article 678f, the predecessor statute of article 601b, was in effect at the time fun& were
appropriated for the project at issue here Section 6(E) of that statute required the State
Building Commission to submit to the budget agencies of the state a report listing all
projects for which a project analysis was required Nothing in article 678f, however,
protibited the legislature from appropriating funds for a project not included within the
Commission’s report.
30. If not, what constitutional or statutory authority is this
project exempt from the provisions of Article 678f? [sic]
p. 411
Honorable William P. Clements, Jr. - Page Eight (NW-1281
As we noted in our answer to question number 29, article 678f imposed certain duties on
the State Building Commission, but placed no restrictions on the legislature with regard to
the apprcpriation of funds.
31. By its failure to require a project analysis for the con-
struction of this building before making an appropriation
authorizing such construction, did the legislature attempt to
modify and amend general law in violation of Article 3,
Section 35 of the Texas Constitution?
No. As we have said, the statutory requirement that a project analysis be submitted spoke
only to the duty of the Building Commission. Since no statute required the legislature to
have seen a project analysis before making an appcqriation, the legislature did not
attempt to amend general law by appropriating these funds in the absence of a project
analysis.
SUMMARY
Rider 47 to the Department of Human Resources appopriation for
the 1979-81 biennium is not unconstitutional. The Board of Human
Resources may authorize the expenditure of all non-earmarked
earned federal funds in accordance with the provisions of that
rider.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
Bruce Youngblood
P. 412