Untitled Texas Attorney General Opinion ( 1972 )

ITBRNEY ENERAL
Hon. H. R. Nieman, Jr. Opinion No. M-1051
Director
State Building Commission Re: Authority of the State Building
409 Sam Houston Building Commission to contract with the
Austin, Texas 78711 State Highway Department for
certain construction relating
Dear Mr. Nieman: to State parks.
Your request for an opinion on the above subject matter
reads, in part, as follows:
"Since the installation of utilities, roads and
other facilities are all an integral part of the
Texas Parks and Wildlife Department long range
program and incremental projects containing build-
ings and structures it is requested that you render
an opinion as follows:
"1 . Are facilities such as camp and trailer
sites, picnic areas, electrical, water, sewage and
gas utility systems, roads, walks, trails, parking
areas, access ramps, fishing piers and fencing,
appurtenant to existing or program planned build-
ings and structures?
“2. Can the State Building Commission enter
in a contract with the State Highway Department on
a project funded by any State agency for the
construction of roads, trailer loops and parking
areas pursuant to the provisions of Article 678m
without the approval of the Board of Control?"
You have further advised that the Texas Parks and Wild-
life Department and the State Building Commission have entered into
a contract, dated October 21, 1971, in which it was agreed that
the latter would act for the former agency in connection with
various aspects of the project and in executing necessary inter-
agency contracts to complete the same. See Articles 4413(32) and
678f, Vernon's Civil Statutes.
In Attorney General's Opinion WW-1120 (1961) it was held
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Hon. H. R. Nieman, Jr., page 2 (M-1051)
that contracts entered into by the State Building Commission with
other State agencies do not require the approval of the State Board
of Control.
In discussing the powers of the State Building Commission,
in Attorney General's Opinion M-721 (1970), this office stated:
"The fish pass and bridge referred to in your
request is not a 'building', nor is it an integral
part of a building construction project. In our
opinion Article 678f, Vernon's Civil Statutes, is
not applicable. Section 2(c) of that statute pro-
vides that a building construction project includes
'any building or any structure or any facility or
utility appurtenant thereto.' These terms are
subject to a construction in harmony with the
constitutional provision creating The State Build-
ing Commission and authorizing its powers. Article
III, Section 51-b(c), Constitution of Texas, au-
thorizes the Legislature to fix the terms and con-
ditions upon which the Commission 'may acquire necessary
and real and personal property, salvage and dispose of
property unsuitable for State purposes, modernize,
remodel, build and equip buildings for State purposes,
and negotiate and make contracts necessary to carry
out and effectuate the purposes herein mentioned.'
Thus, Article 678f, Section 2(c) may grant no broader
powers to the Building Commission than those given in
Article III, Section 51-b(c). Furthermore, 'any
structure or any facility or utility appurtenant
thereto' are subject to the construction that they
mean like things in the same nature of a 'building'.
53 Tex.Jur.Zd 221, Statutes, Sets. 154, 155.
"In interpreting the word 'building' as used
in the Constitution, we must not give it a technical
construction. 8A Texas Digest 17, Key No. 13,
Constitutional Law. Rather, we are required to
interpret it as it would be understood by the average
voter, unlearned in the law. The meaning to be ascribed
to it is the natural, ordinary, common sense meaning.
8A Texas Digest 18-21, Key No. 14, Constitutional Law;
Brady v. Brooks, 99 Tex. 378, 89 S.W. 1052 (1905);
Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d
13, 15 (1931); 16 C.J.S. 79 Const.Law, Sec. 17, n.
54-55.
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Hon. H. R. Nieman, Jr., page 3 (M-1051)
"Its ordinary meaning implies the idea of habita-
tion for the permanent use of man, or an erection
connected with his permanent use. Black's Law
Dictionary, Fourth Edition, p. 244, under 'Building'
and cases cited. In statutes, the word 'building'
is held to depend for its meaning in some degree
on its particular subject and its connection with
other words. Johnson v. State, 96 Crim.Rep. 216,
257 S.W. 551 (1923). As commonly understood, it
is a house for residence, business, or public use,
or for the shelter of animals or storage of goods.
Favro v. State, 39 Crim.Rep. 452, 46 S.W. 932
(1898).
"In view of the foregoing, in answer to your
fourth question, you are advised that the fish pass
and bridge, or approaches thereto, do not consti-
tute a building or like structure, and it is not
an integral part of a building construction project.
Consequently, the Parks and Wildlife Department may
not construct the same through the State Building
Commission."
You state in your request:
"Under the terms of the State Building Con-
struction Administration Act, codified as V.C.S.
678f, the State Building Commission as a service
performs technical and administrative duties for
other State agencies. The nature of the services
embodies the construction of complex projects which
include buildings and structures, facilities and
utilities appurtenant thereto. The services per-
formed for the Texas Parks and Wildlife Department
on many projects in addition to buildings and
structures contain or are adjuncts to such facili-
ties as camp and trailer sites, picnic areas,
electrical, water, sewage and gas utility systems,
roads, walks, trails, parking areas, access ramps,
fishing piers and all manner of fencing."
Applying the principles announced in Attorney General's
Opinion M-721 (1970) to the facts presented in your request, we
are of the opinion that park facilities such as camp and trailer
sites, picnic areas, electrical, water, sewage and gas utility
systems, roads, walks, trails, parking areas, access ramps, fishing
piers, and fencing, if the same qualifies as a "building construction
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Hon. H. R. Nieman, Jr., page 4 (M-1051)
project" within the definitions set out in Attorney General's
Opinion M-721 (19701, may be a part of a building construction
project within the meaning of Section 51b of Article III of the
Constitution of Texas and Articles 678f and 678m, Vernon's Civil
Statutes. In your opinion request, you state that such facilities
are a part of your program and projects containing buildings and
like structures.
YOU are further advised in answer to your second question
that the State Building Commission, as agent for the Texas Parks
and Wildlife Department, may contract with the State Highway De-
partment for the construction of roads, trailer loops and parking
areas pursuant to the agreement between the Texas Parks and Wild-
life Department and the State Building Commission referred to in
your request. Articles 606933, 4413(32), Vernon's Civil Statutes.
In view of the foregoing, such contracts do not require the ap-
proval of the State Board of Control.
SUMMARY
The State Building Commission has the authority
to contract with the Texas Parks and Wildlife Depart-
ment for the performance of certain technical and ad-
ministrative duties set out in Article 678f, Vernon's
Civil Statutes, for the construction of construction
projects on State parks. Such projects and facilities
may include camp and trailer sites, picnic areas,
electrical, water, sewage and gas utility systems,
roads, walks, trails, parking areas,' access ramps,
fishing piers and fencing, provided the same qualifies
as a "building construction project" within the defi-
nitions set out in Attorney General's Opinion M-721
(1970).
The State Building Commission, as agent for
the Texas Parks and Wildlife Department, may contract
with the State Highway Department on such projects for
the construction of roads, trailer loops and park-
ing areas without the approval of the State Board
of Control. ,/-yl
Very trulydours,
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Hon. H. R. Nieman, Jr., page 5 (M-1051)
Prepared. by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Malcolm Quick
Dyer Moore
Charles Lind
Bob Flowers
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOIA WHITE
First Assistant
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