,
,
The Attorney General of Texas
October 24, 1979
MARK WHITE
Attorney General
Honorable Lee Drain Opinion No. NW-7 6
Texas State University System
505 Sam Houston Building Re: Coordinating Board approval
Austin, Texas 78701 of construction project for
Southwest Texas State University.
Dear Mr. Drain:
You inform us that on January 26,1977, the Coordinating Board, Texas
College and University System, approved construction of Phase II of a Multi-
Purpose Building on the campus of Southwest Texas State University. The
Coordinating Board gave its approval under section 61.058 of the Education
Code which at that time did not authorize it to consider cost of construction
projects in giving its approval. See Attorney General Opinion H-762 (1976).
Thereafter the legislature amended section 61.058(8)(A) of the Education
Code to provide that the Coordinating Board could consider “cost factors
and the financial implications” if the total cost of the project exceeded
$500,000. The cost of the building exceeds this figure. This amendment
became effective approximately seven months after the Coordinating Board
approved Phase II. The Commissioner of Higher Education subsequently sent
to the colleges and universities a memorandum containing the following
language:
If bids on a project approved by the Coordinating
Board exceed cost estimates by more than ten
percent or reduce square footage projections by more
than ten percent, then the proposed project is subject
to another review by the Board.
Bids on the Phase II project have exceeded cost estimates by more than ten
percent. Based on these facts, you ash the following question:
Does the Board of Regents, Texas State University
System, have authority to award a construction
contract for the Multi-Purpose Building, Phase II,
which exceeds cost estimates by more than ten
percent, without another review by the Coordinating
Board?
P. 231
Honorable Lee Drain - Page Two (NW-7 6 1
The memorandum requiring a resubmission of projects when the bids exceed the
anticipated cost by more than ten percent is not a rule or regulation of the Coordinating
Board. It is merely a part of the application which colleges and universities are required
to submit to the Coordinating Board when they seek approval of building projects. It was
first used September 2, 1977, more than seven months after the Southwest Texas State
University project was approved. While the requirement set out in the application could
serve to condition approval granted after September 2, 1977, it &es not purport to affect
applications approved prior to that time. Since the requirement for resubmission appears
only in the application for approval, there is no necessity to determine whether the Board
could require projects approved before September 2, 1977, to be presented to it again for
additional review. Accordingly, there was no requirement that the Southwest Texas
project be resubmitted to the Board.
Even if the Coordinating Board could withdraw its prior approval, it has not done so
here. The October 19, 1979, motion to approve the project was defeated by a tie vote.
While the tie vote caused the motion to approve to fail, it did not result in a disapproval
of the project or a withdrawal of the 1977 approval. Accordingly, the 1977 approval is still
effective, and the Board of Regents of the Texas State University System has authority to
award a construction project on the basis of the Coordinating Board’s 1977 action.
SUMMARY
The Regents of the Texas State University System may award a
construction contract based on Coordinating Board approval of the
project secured in January, 1977.
Very truly yours,
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
and C. Robert Heath
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
P. 232
Honorable Lee Drain - Page Three (MW-76)
Bob Gammage
Susan Garrison
Eva Loutzenhiser
Richard Rafes
William G Reid
Bruce Youngblood
p. 233