Untitled Texas Attorney General Opinion ( 1976 )

The Honorable H. R. Nieman, Jr. Opinion No. H-047
Director
State Building Commission Re: Authority of Board
Stephen F. Austin Building of Control and State
Austin, Texas Building Commission.
Dear Mr. Nieman:
You have requested our opinion concerning the relative
authority of the Building Commission and the Board of Con-
trol regarding the allocation of space in a building, which
was recently acquired by the Building Commission on behalf
of the State. Following what you have termed a major reno-
vation, the building will be used for state offices. You
have asked whether the Building Commission or the Board of
Control has title to the building and the power to allocate
the space therein.
Article 665, V.T.C.S., provides in part:
The State Board of Control shall have
charge and control of all public buildings,
grounds and property of the State . . ..
[alnd the Board shall be authorized to
provide for the allocation of space in any
of the public buildings to the departments of
the State Government.
Article 67Sm, V.T.C.S., which establishes the Building
Commission, provides in part:
p. 3571
The Honorable H. R. Nieman, Jr. - page 2 (H-847)
Sec. 3. The Commission shall have the
authority to promulgate such rules and
regulations as it deems proper for the
effective administration of this Act. Under
such terms and conditions as may be provided
by law, the Commission may acquire necessary
real and personal property, modernize, remodel,
build and equip buildings for State purposes
. . . .
. * .
Sec. 7. The Commission shall obtain title
for the state and retain control of the real
property acquired for sites and of the build-
ings located thereon until final construction
is completed and the buildings are occupied
by the state agencies to be housed therein,
at which time the management and control of
said buildings including the inventory values
of the sites and the buildings located thereon,
shall be transferred to the Board of Control.
Except as otherwise provided in this Act, the
initial occupants shall be those state agencies
agreed upon by the Commission and the Board of
Control. This Section, as amended, shall apply
to all new state buildi,ngsconstructed hereto-
fore or that may be constructed hereafter in
Austin, by the State Buildi,ngCommi.ssion.
Article 67Sf, V.T.C.S., the State Building Construction
Administration Act designates the Commission as the administering
agency, section 5(A); empowers the Commission to enter
construction contracts, section 81Cj; and authorizes the
Commission to promulgate rules and regulations necessary to
implement its powers, duties, and responsibilities, section
5(F). Section 13(C) provides that:
Upon completion of the project the Commis-
sion shall release the same to the using
agency . . . O
p. 3572
The Honorable H. R. Nieman, Jr. - page 3 (H-847)
Section 2(A) provides that:
[T]he State Board of Control shall be
considered the using agency for . . . state-
owned buildings maintained by the Board.
Article 678m was enacted in 1955 pursuant to article 3,
section 51-b(c) of the Texas Constitution. The Building
Commission thereby became the authority which acquires and
constructs state property. Prior to its 1963 amendment,
section 7 of article 678m read:
The Commission shall obtain title for the
state and retain control of the real property
acquired for sites and of the buildings located
thereon until final construction is completed
and the buildings are occupied by the state
agencies to be housed therein, at which time
the management and control of said buildings
shall be transferred to the Board of Control.
Except as otherwise provided in this Act, the
initial occupants shall be those state agencies
agreed upon by the Commission and the Board of
Control.
Since article 665 had long been in existence and since
article 678f was not enacted until 1965, the progression of
control over state property from 1955 to 1963 was as follows.
The Building Commission acquired the property and performed
any construction projects necessary. V.T.C.S. art. 678m, fi
3. These projects have always included ones of renovation
and repair. Attorney General Opinions M-780 (1971); M-695
(1970); NW-1429 (1962); NW-1215 (1961); NW40 (1957). After
the construction was completed and the building occupied the
Commission transferred control thereof to the Board. V.T.C.S.
art. 678m, § 7. The Board then had charge and control of
the building. V.T.C.S. art. 665. Thus a system was established
which provided statutory authority for the acquisition,
construction, control, and transfer of control of state
buildings.
In 1963 section 7 of article 678m was amended to include
the clause relating to the transfer of inventory values and
the last sentence of the present section, which states:
p. 3573
The Honorable H. R. Nieman, Jr. - page 4 (H-847)
This Section, as amended, shall apply
to all new state buildings constructed
heretofore or that may be constructed here-
after in Austin, by the State Building
Commission.
Prior to the addition of this sentence there was nothing in
section 7 that would have confined its application to less
than the entirety of article 678m. As previously noted,
article 678m has always applied to the acquisition and
renovation of buildings; therefore, before its 1963 amend-
ment, section 7 also applied to such buildings.
In our opinion, the Legislature did not intend to narrow
the application of section 7 by adding the last sentence thereof;
rather, the Legislature intended to make clear that section 7
applied in part to "new state buildings constructed . . .
by the State Building Commission." Had the Legislature
intended to limit that application of section 7, they could
easily have stated that the section applied on1 to such
"new state buildings." To merely state that-8t e section
applies to such buildings is not to provide that it applies
to no others. Thus any restriction on the existing application
of section 7 would be by implication. We do not believe the
Legislature intended to imply such a restriction, for amendments
are construed so as to harmonize with the Act amended. 82
C.J.S, Statutes, 9 384, p. 897. Since article 678f was not
in existence at the time of the amendment in question, any
restriction of the application of section 7 to less than that
of article 678m would result in a lack of statutory authority
for the transfer of control of buildings other than "new state
buildings constructed . O . by the I . . Commission." Such
a construction of the amendment would create a lack of
harmony in the act amended and would run counter to the rule
of construction that amendments are to be construed as part
of a coherent system of legislation. 82 C.J.S. Statutes, 9
384, pa 896. It is therefore our opinion that the application
of section 7 of article 678m was not and is not limited to "new
state buildings constructed . a . by the State Building
Commission:" rather, section 7 applies to all buildings acquired
and constructed by the Commission in the absence of a specific
statute indicating otherwise.
p. 3574
The Honorable H. R. Nieman, Jr. - page 5 (H-847)
We do not believe section 13(C) of article 678f to,be
such a statute. Even were it to apply to newly acquired buildings
and require the transfer thereof to the Board of Control as the
"using agency," a question we need not decide, section 13(C)
in no way abrogates the specific provisions of section 7 of
article 670m. Such an abrogation would constitute an implied
repeal of the provisions of section 7 of article 678m, and
would be inconsistent with the rules of statutory construction.
53 Tex. Jur. 2d Statutes, SS 100, 102, 104.
Section 7 of article 678m is therefore applicable. Its
provisions put title and control of acquired buildings in the
Building Commission, require a transfer to the Board of Control
after renovation is completed and the building is occupied,
and state that the initial occupants will be those agreed
upon by the Board and the Commission. In the event that the
two agencies cannot agree on the initial occupants, in our
view the Building Commission is the superior authority in the
matter, since article 678m, section 8 provides:
Sec. 8. The Commission shall have the
authority to call on any Department of State
Government to assist it in carrying out the
duties of the Commission. And particularly,
it shall be the duty of the Board of Control
to do and perform such acts and functions in
connection with this Act as the Commission
may direct .~. . .
See V.T.C.S. art.
- 678m, S 3.
Furthermore, in Attorney General Opinion WW-1215 (1961),
this office stated:
We are of the opinion that the functions
given the Board of Control under this Act
have to do, mainly, with the management of
the buildings after being occupied by the
State agencies and the control of the personal
property located therein and that any additional
duties given the Board of Control as to state
building sites and properties are to be delegated
to the Board of Control by the State Building
Commission.
p. 3575
The Honorable ?I.R. Nieman, Jr. - page 6 (H-84%1
It is therefore our opinion that the control and title
to a recently acquired and renovated building are lodged
with the Building Commission until transferred to the Board
of Control pursuant to section 7 of article 678m. Nothing
in this opinion is intended to alter the Board's duty under
the General Appropriations Act to provide utility'service to
the building.
SUMMARY
When a building is acquired by the State
and is to be renovated and repaired,
control of the building is transferred
from the State Building Commission to the
State Board of Control at the completion
of the renovation.
Very truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
jwb
p. 3576