Untitled Texas Attorney General Opinion ( 1968 )

January 4, 1968
Hon. J. K. Williams Opinion NO. M-182
Commissioner, Coordinating
Board Re: Whether the governing
Texas College and Univer- boards of junior college
sity System districts are required
Sam Houston Office Bldg. to take out building
Austin, Texas 78701 permits on the construc-
tion of buildings of the
district and related
Dear Mr. Williams: questions.
In your request for an opinion on the above subject
matter, you ask the following questions:
"1 . Does a municipality have legal author-
ity to impose building restrictions on a public
junior college district?
"2 . Is a public junior college district
required to obtain a building permit from a
municipality?
"3 . Is a public junior college district
required to pay a municipality a fee for a
building permit?"
In Port Arthur Ind. Sch. Dist. v. City of Groves,
376 S.W.Zd 330 (Tex.Sup. 19641, it was held that the build-
ings erected by an independent school district are subject
to the regulatory ordinances of the municipality in which
they are located. This result was the consequence of the
court's conclusions at page 333 of the opinion:
u. . . [IIndependent school districts . . .
are independent political entities and we will
not classify their property as state property.
. . . The Legislature, in providing that local
school boards shall contract for the erection
of school buildings and superintend the con-
struction of same, made no provision whatsoever
that they should regulate, supervise or control
in any manner the building of school buildings
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Hon. J. K. Williams, page 2, (M-182)
and provided for no safety regulations for the
protection of the occupants or the property of
others in the vicinity of the school buildings."
(Emphasis added.)
Accord, School District of Philadelphia v. Zonin
Board of Adjustment, City of Philadelphia, 417 Pa. 277, 20
A.2d 864 (1965), wherein the Supreme Court of Pennsvlvania
held that a municipality had the power to regulate by means
of zoning ordinances the construction of public school build-
ings by the school district within the municipal limits.
It is a well established rule that municipal ordi-
nances regulating the construction, repair and equipment of
buildings do not apply to projects undertaken by the state or
its agents on property owned by the state. Board of Regents
v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (19601: Kentuc&
Institute For Education of Blind v. City of Louisville,
Ky. 767, 97 S.W. 402 (1906):,Town of Blood Jersey
Highway Authority, 18 N.J. 237 113 A.2d 658 (19551: Count
.._------_L . . .-~- . ..IY --
of Westchester v. Village of m&onecn, LL App.uiv.~a Lz-3
255 N.Y.S.Zd 290 (19641, affirmed 16 N.Y.2d 940, 212 N.E.2d 442
(1964); Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.Zd
777 (1956); City of Charleston v. Southeastern Const. co., 134
W.Va. 666, 64 S.E.2d 676 (1950); accord, Ex .partef Means, 14
Cal.Zd 254, 93 P.2d 105 (1939); Newton v. City o Atlanta, 189
Ga. 441, 6 S.E.Zd 61 (19391: Citv of Frankfort v. Commonwealth.
243 Ky:633, 49 S.W.2d 548'i1932).
The rationale of these decisions is the ultimate right
of the state to act with regard to property which the state
owns and controls without interference from, or regulation by,
a subordinate entity which was created by the state and derives
all of its power and authority from the state.
II
. . . [Tlhe state will not be presumed
to have waived its right to regulate its own
property, by ceding to the city the right
generally to pass ordinances of a police na-
ture regulating property within its bounds.
. . . The principle is that the state, when
creating municipal governments, does not
cede to them any control of the state's
property situated within them, nor over
any property which the state has autho-
rized another body or power to control.
The municipal government is but an agent
of the state - not an independent body.
It governs in the limited manner and ter-
ritory that is expressly or by necessary
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Hon. J. K. Williams, page 3, (M-182)
implication granted to it by the state.
It is competent for the.state to retain
to itself some part of the government
even within the municipality, which it
will exercise directly, or through the
medium of other selected and more suit-
able instrumentalities. How can the city
have ever a superior authority to the
state over the latter's own property,
or in its control and manasement? From
the nature of things it cannot have."
Kentucky Institute for Education of
Blind v. City of Louisville, 123 Ky. 767,
97 S.W. 402, 404 (1906).
Reviewing the above cited authorities together with
the provisions of Article 2615g, Vernon's Civil Statutes, es-
tablishing the University of Houston as a state institution
of higher learning, this office held in Attorney General's
Opinion C-690 (1966):
"Municipal ordinances regulating the loca-
tion, size, design, height, construction, equip-
ping, and inspection of new buildinqs or the re-
modeling and repair of existing buildings, do
not apply to projects undertaken by the state
on property owned by the state. The Universi-
ty of Houston is a state institution of higher
learning, created and controlled by the state.
Its property is state property, therefore, the
erection, remodeling, or repair of buildings
by the University of Houston is not regulated
by the ordinances of the municipalities within
which they are located."
In discussing the City of Groves case, supra, we
observed in Opinion C-690:
"In Port Arthur Ind. Sch. Dist. v. City
of Groves, supra, the court expressed the
fear that buildings erected by independent.
school districts would constitute a-threat
to the health and safety of the community
if they were not regulated by municipal
building ordinances. We do not view the
prospect of the development and expansion
of the physical facilities of the various
state institutions of higher learning, un-
restrained by the regulatory ordinances of
the various municipalities within which
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Hon. J. K. Williams, page 4, (M-192)
such institutions may be located, as a
threat to the safety and health of the
community. The state is the ultimate au-
thority responsible for the protection of
the health, safety and welfare of its
citizens and we will not presume that
the state or the designated governing
boards of its institutions of higher
learning will, in the pursuit of educa-
tional excellence, so plan and expand
the facilities of these institutions
as to be unmindful of the health and
safety of the community involved. The
following statement of the court in the
City of Tempe case, supra, is partic-
ularly appropriate to this aspect of
the question:
"'There is nothing to suggest that
the Board will supervise the University's
construction program with less concern
for the public welfare than would the
City. Indeed, we may well assume that
this Court's determination of the scope
of the Board's duties will be followed by
an appreciationsof the responsibilities
generated thereby. It is thus unnecessary
for us to consider or enumerate the judicial
and other remedies available to insure that
the Board, or any other state or municipal
agency, performs its duties in a manner
consistent with the health, safety and
general welfare of the people of this
State.
"'We hold that the City of Tempe may
not apply its building codes and requlations
to Arizona State University.' 356 P.2d 407
"Therefore, you are hereby advised that
the municipal ordinances regulating location,
construction, design, equipping and inspec-
tion of buildings and structures within such
municipalities do not apply to projects under-
taken by the University of Houston on land
owned by such institution. Our conclusion
upon this question is also supported by
Attorney General's Opinions V-977 (1949)
and C-301 (19641, both of which are hereby
affirmed."
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Hon. J. K. Williams, page 5, (M-182)
In view of the above authorities, the answer to your
questions depends on whether property owned and controlled by
junior colleges is to be classified as state property: and in
order to determine the answer to this question, it becomes im-
portant to determine the nature of junior colleges as well as
applicable statutory provisions governing the construction of
junior college facilities. In Shepherd v. San Jacinto Junior
College District, 363 S.W.Zd 742 (Tex.Sup. 1963), the court
In discussing the nature of junior college districts made the
following observation at page 744:
“Some difficulty of classification has
arisen with reference to junior colleges and
the regional districts supporting them. Un-
doubtedly the framers of the Texas educational
system envisioned a system of schools extending
from those of an elementary grade to those of
a university level, that is, elementary schools,
secondary schools or high schools and colleges
and universities. The junior colleges, developed
for the most part since 1929, are sandwiched in,
so to speak, between the high schools on one
hand and the colleges or universities on the
other hand. In certain respects, the junior
college is what its name implies, that is, a
school which is above the high school level yet
one whose highest grade is below the educational
level required for a degree from a university.
Yet, as pointed out by one of the briefs on
file here, it would not be inappropriate to
refer to the districts which support such
schools as 'junior college districts,' 'ad-
vanced independent school districts' or 'grad-
uate high school districts.' The point of this
is that junior colleges and their districts may
in some instances be regarded as colleges and
in other instances as schools in the nature of
advanced high schools. The Junior College Act
itself makes numerous references to independent
school districts when delineating the powers
and operations of a junior college district.
"The Texas junior college history bears
some relation to the experience of other
states with secondary schools, that is, high
schools or college preparatory schools."
(Emphasis added.)
Sections 1 and 2 of Article 2815r-2, Vernon's Civil
Statutes, provide:
-874-
Hon. J. K. Williams, page 6, (M-182)
"Section 1. The governing boards of all
junior college districts heretofore or here-
after organized under the laws of the State
of Texas are hereby severally authorized and
empowered, each for its respective institu-
tion or institutions, to construct, acquire
and equip, on behalf thereof, buildinqs and
other structures and additions to existing
buildings and other structures and to acquire
land for said additions, buildings and other
structures in any manner authorized by law,
if deemed appropriate by said governinq
boards. Said constructions, equipping and
acquisition may be accomplished in whole or
in part with proceeds of loans obtained from
any private or public source. The said gov-
erning boards are also severally authorized
to enter into contracts with municipalities
and school districts for the joint construc-
tion of said facilities.
"Sec.2. The buildings and structures
and additions to buildings and structures
constructed pursuant to the authority con-
tained in this Act, together with the equip-
ment therein shall be of types and for pur-
poses which the authorizing governing board
shall deem appropriate and shall deem to be
for the good of the institution, provided
such governing board shall approve the total
cost, types, plans and specifications of
such construction and equipment."
In view of the foregoing, we believe that property
belonging to junior college districts is not to be classified
as State property as it is governed by the rule announced in
City of Groves case rather than the rule announced in the Cit
of Tempe case. Therefore, you are advised that a municiparyity
has legal authority to impose building restrictions on a pub-
lic junior college district and that a public junior college
district is required to obtain building permits from a munic-
ipality, and pay the municipality a fee therefor when the munic-
ipality had duly promulgated such an ordinance in accordance
with applicable statutory provisions in furtherance of powers
granted to such city by the Legislature.
SUMMARY
-------
A municipality has legal authority to im-
pose building restrictions on a public junior
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Hon. J. K. Williams, page 7, (M-182)
college district and a public junior college
district is required to obtain building permits
from a municipality, and pay the municipality
- _
a fee therefor when the municipality has duly
promulgated an ordinance providing therefor,
in accordance with applicable statutory provisions
and in furtherance of powers granted to such city
by the Legislature.
very truly,
yY=
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Arthur Sandlin
James Broadhurst
John Banks
A. J. CARUBBI, JR.
Staff Legal Assistant
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