Untitled Texas Attorney General Opinion

. The Honorable Bevington Reed Opinion NO. B-762 Commissioner Coordinating Board Re: Authority of the Texas College and Coordinating Board, Texas University Syetem College and University P. 0. Box 12788, Capitol Station System, to control the Austin, Texas 78711 cost of conetruction program8 undertaken by public colleges and universitie8. Dear Dr. Reed: You have asked us: Does the Coordinating Board, Texas College and University System have the authority and the obligation under [Education Code] Section 61.058, as amended by Senate Bill 706, 64th Texas Legislature, 1975, to regulate the expenditure of funds in dealing with construction and rehabilitation projects in institutions of higher education? You explain that "[tlhe term 'regulate' in this question refers to guiding the relationship of dollare to facilities space toward an efficient ratio as determined by Coordinating Board deliberation on each project." Section 61.058 of the Texas Educaton Code, as amended [Acts 1975, 64th Leg..,ch. 676, p. 20551 reads (emphasis added): p. 3220 The Honorable Bevington Reed - page 2 (H-762) Sec. 61.058. Construction Funds and Development of Physical Plants To assure efficient use of constKc=unde and therxrly development omeical plants to accommodate projected college student enrollments, the board shall: (1) determine formulas for space utilization in all educational and general buildings and facilities at institutions of higher education; (2) devise and promulgate methods to assure maximum daily and year-round use of educational and general buildings and facilities, including but not limited to maximum scheduling of day and night classes and maximum summer school enrollment: (3) consider plans for selective standards of admission when institutions of higher education approach capacity enrollment: (4) require, and assist the public senior colleges and universities, medical and dental units, and other agencies of higher education in developing, long-range plane for campus development; (5) endorse, or delay until the next succeeding session of the legislature has the opportunity to approve or disapprove, the proposed purchase of any real property by an institution of higher education, except a public junior college: rules(6) develop and publish standards, and regulations to guide the instiiutions and agencies of higher education in making application for the approval of new construction and major repair and rehabilitation of all buildings and facilities regardless of proposed use: p. 3221 ” . The Honorable Bevington Reed - page 3 (H-762) (7) ascertain that the standards and specifications for new construction, repair, and rehabilitation of all buildings and facilities are in accordance with Chapter 324, Acts of the 61et Legislature, Regular Session 1969, as amended (Article 678(g) Vernon's Texas Civil Statutes); and (8) approve or disapprove all new construction and repair and rehabil- itation of all new buildings and facilities at inetitutione of higher education financed from any source other than ad valorem tax receipts of the public junior colleges, provided that: (A) the board's consideration and determination shall be limited to the purpose for which the new or remodeled buildings are to be used and their gross dimensions to assure conformity with approved space utilization standards and the institution's approved programs and role and scope: (B) the requirement of approval for new construction financed from other than appropriated funds applies only to projects the total cost of which is in excess of $100,000; (C) the requirement of approval for major repair and rehabilitation of buildings and facilitiee applies only to projects the total cost of which is in excess of $25,000; and (D) the requirement of approval or disapproval by the board does not apply to any new construction or major repair and rehabilitation project that is specifically approved by the legislature. p. 3222 n ^ The Honorable Bevington Reed - page 4 (H-762) Sub,section(8) specifically provides that when approv- ing or disapproving new construction projects and repair and rehabilitation of buildings the Coordinating Board's considera- tion is limited to two factors. The Board may consider (1) whether the purpose of the building conforms to the institution's approved programs, role and scope, and (2) whether the gross dimensions of the building are consistent with the Board's space utilization standards and with the inetitution's approved programs, role and scope. There is no express or implied authority in subsection (8) for the Coordinating Board to specifically regulate the expenditure of funds for construction or rehabilitation projects. Of course, while the Board may not epecifically regulate the expenditure of funds, its promulgation of space utilization standards and determination of an institution's programs, role and scope will necessarily have an indirect effect on the amount of funds which will be expended for construction and rehabilitation of buildings. Your second question is: If the response to question Xl is negative, does the Coordinating Board have the authority to consider cost as a factor in its approval or disapproval of institutional requests for new construction and/or major repair and rehabilitation projects? As in the answer to your first question, subsection (8) specifically limits the factors the Board may consider in approving or disapproving construction and rehabilitation projects, and the factors listed do not include cost. Therefore, the Board may not utilize a cost consideration when considering the proposals submitted to it. p. 3223 The Honorable Bevington Reed - page 5 (H-762) SUMMARY The Coordinating Board, Texas College and University System, does not have the authority to regulate the expenditure of construction funds or to consider cost as a factor in determining whether to approve or disapprove an institution's application for the construction, rehabilitation or repair of buildings or facilities at instit- utions of higher education. However, its promulgation of space utilization standards and determination of an institution's program, role and scope will indirectly affect the amount of funds expended for construction and rehabilitation of buildings. yery truly yours, Attorney General of Texas APPROVED: Opinion Committee jwb p, 3224