Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
December 4, 1978
JOHN L. HILL
Attorney General
supremecoun Building Honorable C. C. Nolen, President Opinion No. H-12 6 8
P.O.BOX12548
Austin, TX. 78711 North Texas State University
512,475-2501 Texas College of Osteopathic Medicine Re: Expenditure of state
Denton, Texas 76203 appropriated funds for land
acquisition for the Texas College
of Osteopathic Medicine.
Dear Mr. Nolen:
You have requested our opinion as to whether certain appropriated
funds may be expended for the acquisition of a building site for the Texas
College of Osteopathic Medicine.
Section 105.81 of the Education Code, enacted by the 65th Legislature,
authorizes the Board of Regents of North Texas State University to “acquire
by purchase, donation, or otherwise” land for its new College of Osteopathic
Medicine. The current General Appropriations Act appropriates to the
college the sum of $15,524,714 for ‘new construction” during fiscal 1978.
General Appropriations Act, Acts 1977, 65th Leg., ch. 872, at 3072. YOU ask
whether such funds, or any other item of appropriation, may be expended for
the acquisition of a building site.
No Texas case has considered whether an appropriation for “new
construction” will support the purchase of land, although it has been
determined that statutory authority to issue bonds for the erection of a
courthouse and jail includes implied power to issue bonds for site acquisition.
Moon v.Allred, 277 S.W. 787 (Tex. Civ. App. - Eastland 1925, writ dism’d).
See Attorney General Opinions C-265 (1964); V-513 (1948). We note also that
the budget request submitted by the college to the 65th Legislature included
an item for land acquisition in its request for $33,998,990 for construction.
Texas College of Osteopathic Medicine, Request for Legislative
Appropriations, Fiscal Years Ending August 31, 1978, and 1979.
However, we do not believe the Legislature’s use of the term
“construction” in the appropriations act in this instance was intended to
include site acquisition costs. In other provisions of the act, it expressly
authorized the use of construction funds or other funds to purchase real
p. 5019
< .
Honorable C. C. Nolen - Page 2 (~-12681
property. -See Acts 1977, 65th Leg., ch. 872, at 2848 (State Building Commission);
2870 (Department of Corrections).
We believe the Legislature intended to use “construction” in the sense it has
been used by courts of other states, to refer to the erection of improvements on
land. Demory Bros., Inc. v. Board of Public Works of Maryland, 329 A.2d 674, 679
(Md. 1974) (site acquisition may not be financed from “construction costs”); White
v. CTbot Corp., 194 So. 2d 499, 501 (Miss. 1967); State v. U.S. Land Co., 412 P.2d 736,
739 Arm. App. 1966). In its “ordinary and accepted meaning,” the word “signifies
actual activity in erecting or putting up a building.” First National Bank & Trust
CO. V. City of Rockford, 361 N.E.2d 832, 841 (Ill. App. 1977). See also Prudential
Insurance Co. v. Executive Estates, Inc., 369 N.E.2d 1117, 1126--App.
Pollock v. Tiano, 61 Cal. Rptr. 235, 237 (Cal. App. 1967). In Windlow v. Wagner, 329
N.E.2d 911 (Ill. App. 1975). the court said that “construction costs” does not include
the purchase pride of land. & at 915-16. But see State ex rel. McMaster v. District
E, 260 P. 134, 137-38 (Mont. 1927) (purchase of highway right-of-way included in
“construction”).
Based on these authorities and the legislative history, we do not believe land
acquisition may be financed out of the item for new construction. Although the
college originally included an item for land acquisition costs in its request for a
construction appropriation, the Legislature appropriated less than half their
requested amount. Thus, we cannot assume that the amount requested for land
acquisition was included in the final appropriation. The fiscal note to House Bill
1193, which amended section 105.81 of the Education Code, indicated that local
funds had been promised for the acquisition of land by the college.
Neither does any other item of appropriation for the current biennium appear
to be relevant to the purchase of land by the College of Osteopathic Medicine. A
rider to the appropriation for the college re-appropriates “for the same purposes”
any ‘unexpended balances in the appropriations Items 1 and 2” in the 1975-77
General Appropriations Act. General Appropriations Act, Acts 1977, 65th Leg., ch.
817, at 3072. Those items provide:
1. All educational and general expenses, including plant
operation, necessary rent, planning and architect fees
2. Construction
General Appropriations Act, Acts 1975, 64th Leg., ch. 743, at 2777. However, at
the time these appropriations were made, article 105.72 of the Education Code
required that a site for the college be provided without cost to the State of Texas.
Acts 1975, 64th Leg., ch. 285, 5 1 at 285, amended. Acts 1977, 65th Leg., ch. 822, S
2, at 2071. Therefore, these items from the 1975 appropriations act could not have
included site acquisition costs. Accordingly, it is our opinion that the Legislature
has not appropriated any funds to the Texas College of Osteopathic Medicine which
may be expended for the acquisition of a building site. We note finally that the
P. 5020
Honorable C. C. Nolen - Page 3 (H-1268)
college is subject to section 61.058(5) of the Education Code, which requires either
the Legislature or the College Coordinating Board to approve a proposed purchase
of real property. See Educ. Code S 105.79 (medical school subject to supervision of
Coordinating Boardin accordance with chapter 61).
SUMMARY
The Legislature has not appropriated any funds to the Texas
College of Osteopathic Medicine for the current biennium
which may be expended for the acquisition of a building site.
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
Wd
C. ROBERT HEATH, Chairman
Opinion Committee
P. 5021