Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
September 22, 1980
MARK WHITE
Attorney General
Honorable E. D. Walker Opinion No. M+245
Chancellw
University of Texas System Re: Whether projects constructed
60 1 Colorado by proceeds of bonds issued
Austin, Texas 78701 pursuant to article VII, section 18
of the Texas Constitution must be
Honorable Kenneth H. Ashworth ;ppyd by the Coordinating
Commissioner of Higher Education
Coordinating Board
Texas College & University System
Austin, Texas 78711
Gentlemen:
You ask the following question:
1. Are proposals for the construction cr
acquisition of build@ or other permanent improve-
ments for the use of The University of Texas at
Austin and The University of Texas at El Paso
financed in whole out of proceeds from bonds issued
pursuant to Section 18 of Article VII of the Texas
Constitution required to be skmitted to the
Coordinating Board for approval pursuant to Section
61.058 of the Texas Education Code?
Article VII, section 18 of the state constitution provides in pertinent
part:
[Flor the plrpcee of constructing, equipping, or
acquiring buildings or other permanent improvements
for The University of Texas System, including The
Main University of Texas at Austin, The University of
Texas Medical Branch at Galveston, The University of
Texas Southwestern Medical School at Dallas, The
University of Texas Dental Branch at Houston, Texas
Western College of The University of Texas at El Paso,
. . &sting of five other institutions]
p. 772
Honorable E. D. Walker - Page Two (MN-245)
the Board of Regents of The University of Texas is hereby
authorized to issue negotiable bonds and notes not to exceed a
total amount of two-thirds (Z/3) of twenty per cent (20%) of the
value of the Permanent University Fund exclusive of real estate
at the time of any issuance thereof; provided, however, no
building or other permanent improvement shall be acquired or
constructed hereunder for use by any institution of The
University of Texas System, except at and for the use of the
general academic institutions of said System, namely, The Main
University and Texas Western College, without the prior
approval of the Legislature or of such agency as may be
authorized by the Legislature to grant such approval.
.I..
This Amendment shall be self-enacting; . . .
The name of the Main University has been changed to “The University of Texas at
Austin,” and the name of Texas Western College has been changed to “The University
of Texas at El Paso.” -See Educ. Code §§ 67.02, 69.02.
The quoted language authorizes the Regents of the University of Texas to issue
bonds to finance construction of buildings and other permanent improvements at ten
enumerated institutions. However, it provides that such construction projects may not
be undertaken at eight of these institutions without the prior approval of the
legislature or of an agency authorized by the legislature to approve them. This
restriction &es not apply to construction projects at The University of Texas at Austin
and The University of Texas at El Paso.
The amendment is expressly made “self-enacting,” a term used interchangeably
with the more common term “self-executing.” See, e.g., Attorney General Opinions
WW-2 (1957); V-748 (1948); V-158 (1947). A self-executing constitutional provision
supplies a sufficient rule to protect the right given or to permit enforcement of the
duty imposed. Mitchell County v. City National Bank of Paducah, Kentucky, 43 S.W.
880 (Tex. 1898); ‘see, e.g., State v. Klein, 224 S.W.2d 250 (Tex. Crim. App. 1949); Aston
v. Allison, 91 S.W.2d 852 (Tex. Civ. App. -Dallas 1936, no writ). Thus, the Regents
may exercise the authority granted them by article VII, section 18 without the
enactment of enabling legislation.
When a constitutional orovision is self-executinz. the le&lature mav not
unreasonably restrict the power it grants. Vinnicombe ;I State, 541 P. 2d 705-(Cal.
App. 1959); Link v. Public Utility Commission of Ohio, 131 N.E. 796 (Ohio 1921). Any
legislation on the subject of a self-executing provision must be in harmony with it and
further the exercise of the power it grants. Direct Sellers Association v. McBrayer,
503 P.2d 951 (Ariz. 1973); State v. Dunn, 496 S.W.2d 480 (Tenn. 1973). For instance,
article XVI, section 37 of the constitution provides for mechanics’ liens. This orovision
is self-executing and grants a right which exists despite non-compliance with the
p. 773
. .
Honorable E. D. Walker - Page Three (MW-245)
statutory lien procedures. First National Bank in Dallas v. Whirlpool Corp., 517 S.W.2d
262 (Tex. 1974); Robert Burns Concrete Contractors, Inc., v. Norman, 561 SW. 2d 614
(Tex. Civ. App. - Tyler 1978, writ ref’d n.r.e.).
In our opinion, the Regents of the University of Texas may issue bonds to finance
the acquisition or construction of permanent improvement at the University of Texas
at Austin or the University of Texas at El Paso without the approval of the
Coordinating Board. Section 61.058 of the Education Code provides in part:
To assure efficient use of construction funds and the orderly
development of physical plants to accommodate projected
college student enrollments, the board shall:
. . . .
(8) approve or disapprove all new construction and repair
and rehabilitation of all buildings and facilities at institutions of
higher education financed from any source other than ad
valorem tax receipts of the public junior collages. . . .
This statute formerly excepted from the approval requirement projects involving
the use of constitutional funds authorized by article VII, sections 11, 17, or 18 of the
Texas Constitution. See Acts 1971, 62d Leg., ch. 1024, 51, at 3138 (amending and re-
enacting Title 3 of the Texas Education Code). A 1975 amendment deleted this
exception. Acts 1975, 64th Leg., ch. 676, 883, 5, at 2056, 2057. The Coordinating
Board now has the power to approve or disapprove construction projects financed by
article VII, section 18 at eight of the University of Texas institutions enumerated in
that constitutional provision. We do not believe they can constitutionally exercise the
power to approve or disapprove such projects at the University of Texas at Austin or
the University of Texas at El Paso.
Your second question is as follows:
Are proposals for the construction or acquisition of buildings
or other permanent improvements for The University of Texas
at Austin and The University of Texas at El Paso financed
partially out of other sources of revenue and partially from
proceeds of bonds issued pursuant to Section 18 of Article VII of
the Texas Constitution required to be submitted to the
Coordinating Board for approval pursuant to Section 61.058 of
the Texas Education Code?
Section 18 of article VII of the constitution exempts from the approval requirement
permanent improvements “acquired or constructed hereunder” for The University of
Texas at Austin end The University of Texas at El Paso. (Emphasis added).
“Hereunder” has been defined to mean “under the authority of” this statute or
provision. Oxford English Dictionary at 240. The answer to your questions depends on
P. 774
Honorable E. D. Walker - Page Four OlW-245)
whether a building financed partially from the constitutional bond proceeds and
partially from other funds is a building constructed under the authority of article VII,
section 18. In our opinion, a building that receives a minimal amount of financing from
the section 18 bond proceeds is not constructed under the authority of that
constitutional provision. We believe the major portion of financing for a building
should derive from article VII, section 18 funds before the bulIdlng can be said to be
constructed under that provision. Consequently, where at least half of the funding for
a building derives from other sources, approval under section 61.058 is required unless
some other exception is applicable. See Educ. Code §61.058(8).
SUMMARY
Proposals for the construction or acquisition of buildings or
other permanent improvements for the University of Texas at
Austin or the University of Texas at El Paso financed in whole
out of bond proceeds raised pursuant to article VII, section 18 of
the Texas Constitution are not required to be samitted to the
Coordinating Board for approval pursuant to section 61.058 of
the Education Code. Projects for those institutions financed in
part by article VII, section 18 funds must be swmitted to the
Coordinating Board for approval pursuant to section 61.058 when
other funds provide the predominant source of financing.
Very truly yours,
M
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jon Bible
Susan Garrison
Rick Gilpin
Eva Loutzenhlser
P. 775