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The Attorney General of Texas
JIM MATTOX October 12, 1983
Attorney General
Supreme Court Building
P. 0. Box 12546
Mr. Kenneth H. Ashworth Opinion No. JM-77
Austin, TX. 76711. 2546 Commissioner
5121475~2501 Coordinating Board k?: Whether Coordinating
Telex 9101674-1367 Texas College and University System Board has authority to approve
Telecopier 51214754266 college construction funded in
200 E. Riverside Drive
Austin, Texas 78741 part by ad valorem tax funds
714 Jackson. Suite 700 received under former article
Dallas. TX. 75202.4506 VII, section 17, of the Texas
2141742.6444 constitution
4624 Alberta Ave.. Suite 160
Dear Mr. Ashworth:
El Paso, TX. 79905.2793
9151533.3464 You have requested clarification of Attorney General Opinion
MW-594 (1982), which holds that construction projects for institutions
of higher education funded by state ad valorem taxes received under
- 41 Texas, Suite 700
former article VII, section 17, of the Texas Constitution, are not
wsto”, TX. 77002-3171
1131223.5666
subject to Coordinating Board approval. Although section 61.058 of
the Education Code provides that the Coordinating Board shall approve
or disapprove all new construction of facilities at institutions of
806 Broadway. Suite 312 higher education. projects funded under former article VII, section
Lubbock. TX. 79401-3479
17, of the constitution were held in that opinion to be exempted by
6061747-5236
the constitution itself.
4309 N. Tenth, Suite B You now inquire as to what proportion of the total funding of a
McAllen, TX. 76501.1665 project must derive from state ad valorem taxes in order to exempt it
5121662.4547
from the requirement of Coordinating Board approval under section
61.058(B) of the Education Code.
200 Main Plaza, Suite 400
San Antonio. TX. 76205.2797 In our opinion, Attorney General Opinion NW-594 was incorrectly
5121225.4191 decided. Article VII, section 17 was repealed at the November 2, 1982
election. Article VIII, section l-e of the Texas Constitution was
An Equal Opportunity/
amended at the same election to provide as follows:
Affirmative Action Employer
sec. l-e. 1. No State ad valorem taxes shall
be levied upon any property within this State.
2. All receipts from previously authorized
State ad valorem taxes that are collected on or
after the effective date of the 1982 amendment to
this section shall be deposited to the credit of
-e the general fund of the county collecting the
p. 325
Mr. Kenneth H. Ashworth - Page 2 (JM-77)
taxes and may be expended for county purposes.
Receipts from taxes collected before that date
shall be distributed by the legislature among
instit"tions eligible to receive distributions
under prior law. Those receipts and receipts
distributed under prior law may be expended for
the purposes provided under prior law or for
repair and renovation of existing permanent
improvements.
The recently enacted constitutional amendment changes the mode of
distribution of the ad valorem tax funds from that formerly dictated
by article VII, section 17. See Attorney General Opinion H-1129
(1978). Under article VIII, Zion l-e, tax receipts collected
before the effective date of the amendment are to be appropriated by
the legislature and projects constructed with those funds are subject
to Coordinating Board approval to the same extent that other
legislatively appropriated funds for college construction are subject
to such approval. See Jessen Associates, Inc. v. Bullock, 531 S.W.2d
593 (Tex. 1976). -
The new constitutional amendment states with respect to receipts
distributed under prior law, that is, article VII, section 17, that
they "may be expended for the purposes provided under prior law or for
repair and renovation of existing permanent improvements." The new
provision preserves the purposes for which funds could be spent under
former article VII, section 17. It does not preserve the language
that rendered article VII, section 17 "self-enacting." Thus, any
language of article VII, section 17, which might have excepted ad
valorem tax funds from the requirements of section 61.058(B) of the
Education Code is no longer in effect. Construction projects are not
excepted from Coordinating Board approval under section 61.058(B)
merely because they are funded in whole or part with ad valorem tax
funds. Cf. Attorney General Opinion MW-245 (1980). Of course, if the
project z be funded by these receipts has been approved by the
legislature, Coordinating Board approval will be unnecessary. See
Attorney General Opinion MW-520 (1982).
Thus, the answer to your question is that Coordinating Board
approval is required for all construction projects even if they are
funded in whole or in part from ad valorem tax funds. Attorney
General Opinion MW-594 is hereby overruled.
SUMMARY
Construction projects are not excepted from
Coordinating Board approval under section 61.058
of the Education Code merely because they are
funded in whole or in part from ad valorem tax
p. 326
Mr. Kenneth H. Ashworth - Page 3 (JM-77)
-1
funds. Attorney General Opinion Mw-594 is
overruled.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Susan Garrison &
Rick Gilpin
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
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Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 327