Untitled Texas Attorney General Opinion ( 1966 )

Mr. Lester E. Rarrell, Jr. Opinion No. C-686 Acting Commissionerof Higher Education Re: Responsibilityof the Coordinating Sam Houston State Office Board, Texas College and Univer- Building sity System, relating to new Austin, Texas constructionprojects and institu- tions of higher educationunder the provisions of Section 15 of House Bill 1, Acts of 59th Legis- lature, Regular Session, 1965, Dear Mr. Rarrell: Chapter 12, page 27. Pour request for an opinion asks the following questions: "1. Does the CoordinatingBoard have statutory responsibilityto approve all new construc- tion projects costing over $100,000.00 regardless of how the new facilitieswill be used? For example, may an Institution build a dormitory financed by revenue bonds without obtaining the CoordinatingBoard's approval. “2, Does the CoordinatingBoard have statutory responsibilityto approve all new construc- tion projects costing over $100,000.00 financed in part with any amount of funds from sources other than Constitutional Funds which are authorized by Sections 11, 17, or 18 of Article VII of the Constitution of Texas and ad valorem tax receipts of the public junior colleges? May an institution of higher educat'lon avoid CoordinatingBoard approval by involving constitutionally- provided funds or ad valorem tax receipts n any amount) in the financing of a bkstruction project. “3. Can the CoordinatingBoard require approval by it of all new construction,as specified in the answers to the questions above, before an institutioncan submit an application for a matching grant under Public Law 88-204, the Higher Education FacllltiesAct of 19631 -3294- Mr. Lester E. Harrell, Jr., page 2 (C-686) "4. Does the CoordinatingBoard have statutory responsibilityto approve any repair, costing over $25,000.00 of educationaland general buildings regardless of the source of funds used to finance such repair projects? "5 . Does the CoordinatingBoard have statutory responsibilityto endorse all propos.alsto purchase real property, except those proposals of public junior colleges, regardless of sources of funds and regardless of how the property will be used? Must an institutionobtain the approval of the Legislatureafter the CoordinatingBoard has endorsed the purchase of real property." Section 15 of House Bill 1, Acts of the 59th Legisla- ture, Regular Session, 1965, Chapter 12, Page 27, codified in Vernon's as Article 2919e-2, Vernon's Civil Statutes, reads as follows: "To assure efficient use of constructionfunds and the orderly developmentof physical plants to accommodate projected college student enrollments,the Board shall: "(1) Determine formulas for space utilizationin all educationaland general buildings and facilitiesat institutionsof higher education; "(2) Devise and promulgatemethods to assure maximum daily and year-round use of educationaland general build- ings and facilities including but not limited to maximum scheduling of day and night classes and meximum summer school enrollment; "(3) Consider plans for selective standards of admission when institutionsof higher education approach capacity enrollment; "(4) Require, and assist the public senior colleges and universitiet,medical and dental units and other agencies of higher education in developing,long-range plans for campus development; "(5) Endorse or delay until the next succeeding session of the Legislature shall have opportunityto approve or disapprove the proposed purchase of any real property by an institutionof higher education, except public junior COllSgeSj -3295- Mr. Lester E. Barrell, Jr., page 3 (c-686) " (6) Develop and publish standards, rules and regula- tions to. guide the . _ institutions _. . and - agencies . of higher education in maeing application ror tne approval or new constructionand major repair and rehabilitationof educationaland general buildings and facilities;and "(7) Approve or disapproveall new construction,and repair and rehabilitationof educationaland general build- ings and facilities at institutionsof higher education financed from any source other than ad valorem tax receipts of the public junior colleges; provided (1) that the Board's considerationand determinationshall be limited to the purpose for whi.chsuch new or remodeled buildings shall be used .andits gross dimensions to assure conformity with approved space utilizationstandards and the institution's approved programs and role and scope, (2) that such approval for new constructionfinanced from other than appropriated funds shall be limited to projects the total cost of which is in excess of $100,000.00,and (3) that such approval for major repair and ,rehabilitation of buildings and facilities shall be limited to projects the total cost'of which is in excess of $25;OOO.O0;and provided further that such required approval or disapprovalof the Board shall not apply to construction,repair or rehabilitationinvolving the use of ConstitutionalFunds which are authorized by Sections 11, 17, or 18 of Artidle VII of the Constitutionof Texas." In answer to your first question, subdivision7 of Section 15 of Article 2919e-2, Vernon's Civil Statutes, requires the approval or disapproval of the Co,ordinatingBoard on all new constructionfinanced from any source other than ad valorem tax receipts of the public junior colleges provided (1) that the new constructiontotal cost is in excess of $100,000.00and (2) that the new constructionis financed from other than appropriated funds. You are, therefore,advised that the CoordinatingBoard has the statutory responsibilityto approve all new construction projects costing over $100,000.00which are financed from other than appropriatedfunds regardless of how the new facilitieswill be used. The illustrationdescribed in your first question would require the approval of the CoordinatingBoard. The concludingproviso of subdivision7 of Section 15 reads: I, . .providedfurther that such required approval or disapprovalof the Board shall not apply to construction, repair or rehabilitationinvolving the use of Constitutional -3296- Mr. Lester E. Earrell, Jr., Page 4 (C-686) Funds which are authorized by Sections 11, 17, or 18 of Article VII of the Constitutionof Texas." This proviso applies to all constructionreferred to in Section 15. Therefore, in answer to your second question, you are advised that if the new constructionproject involves the use of constitutionalfunds authorized by Sections 11, 17, or 18 of Article VII of the Constitutionof Texas, the approval oredisapprovalof the CoordinatingBoard is not required on such constructionpro- jects, regardless of whether funds other than constitutionalfunds are also used in the constructionproject. Therefore, construction projects financed "from any source other than ad valorem tax re- ceipts of the public junior colleges" must have the approval of the CoordinatingBoard unless such projects are financed exclusively from such ad valorem tax receipts or unless the construction project involves the use of constitutionalfunds authorized by Section 11, 17, or 18 of Article VII of the Constitutionof Texas. Since the provisions of Section 15 quoted above are mandatory, you are advised in answering your third question, that whenever a constructionproject required the approval of the CoordinatingBoard, the CoordinatingBoard may require approval by it before an institutioncan submit an application for a matching grant under Public Law 88-204, the Higher Education FacilitiesAct of 1963, when such application is for a construc- tion project requiring the approval of the CoordinatingBoard as outlined in our answer to questions one and two. In answer to your fourth question, the approval of any major repair and rehabilitationof buildings and facilities the total cost of which is In excess of $25,OOO,OO,applies only to (1) projects financed from any source other than ad valorem tax receipts of the public junior colleges, or (2) does not involve the use of constitutionalfunds authorized by Sections 11, 17, or 18 of Article VII of the Constitutionof Texas. All such pro- jects for major repair or rehabilitationof buildings and facil- ities costing in excess of $25,OOO.OO,requires the approval of the Coord,inatingBoard. In answer to your fifth question, the Coordinating Board has the statutory responsibilityunder Subdivision5 Of Section 15, Article 2919e-2, Vernon's Civil Statutes, to endorse the purchase of any real property by an institutionof higher education other than public junior colleges in the event such institutionof higher education has pre-existingstatutory -3297- Mr. Lester E. Iiarrell,Jr., page 5 (C-686) authority to purchase real property. In such event, no additional approval by the Legislature is necessary after the Coordinating Board has endorsed the purchase as provided in Subdivision5 of Section 15 cited above. SUMMARY The CoordinatingBoard created by House Bill 1, Acts of the 59th Legislature,Regular Session, 1965, has the statutory responsibilityto approve or disapproveall new construction,the total cost of which is in excess of $100,000.00.which is financed from any source other than ad valorem tax receipts of public junior colleges unless such project involves the use of constitutionalfunds authorizedby Sections 11, 17, or 18 of Article VII of the Constitutionof Texas. Yours very truly, WA@QONER CARR Attorney General of Texas Assistant Attorney General JRrsck APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Paul Phy John Banks Robert Flowers Malcolm L. Quick APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright -3298-