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Honorable Homer A. Foerster Opinion No.M-1276
Executive Director
State Board of Control Re: Authority of a State agency
P. 0. Box 13047, Capitol Station occupying space in a State
Austin, Texas 78711 office building on Board of
Control inventory to expend
specifically appropriated
funds for certain space
modifications under cir-
cumstances stated, and re-
Dear Mr. Foerster: lated questions.
your request for an opinion reads as follows:
"The Board of Control has performed certain
special office modifications for State agencies
occupying State office buildings on Board of
Control inventories. These office modifications
were considered to be over and above normal re-
pairs, maintenance and improvements for general
occupancy. The occupying agency, through Governor's
authority, transferred funds to the Board of
Control to pay for such special modifications.
The Attorney General's Opinion No. M-1199 has
held invalid the Governor's authority to make
such transfers.
"Inasmuch as the Board of Control receives
appropriations only for the normal maintenance
repairs and improvements required for general oc-
cupancy, no funds are available for providing
modifications peculiar to the special needs of
the programs of the occupying agency.
"Therefore, a formal opinion is respectfully
requested on the following questions:
"1 . Can 'a State agency occupying space in a
State office building on Board of Control inventory
expend specifically appropriated funds for certain
space modifications which are considered to be
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Hon. Homer A. Foerster, page 2 (M-1276)
peculiar to the needs of that agency, necessary
for the efficient performance of its program, and
which are considered to be over and above normal
building maintenance, repairs and improvements
required for general occupancy?
"2 . If the above question is answered in
the affirmative, can the Board of Control be re-
imbursed for the actual cost of rendering services
of employees, services of maintenance, and/or
services of equipment to make such modifications
through an interagency contract as authorized by
Article 4413(32), V.C.S.?
"3 . If Question Number Two (2) is answered
in the affirmative, is the Comptroller thereby
authorized to process vouchers and draw a warrant
for the reimbursement for the actual cost of
services in accordance with the interagency contract?
"In regards to Question Number One (l), refer-
ence is made to Article 673, V.C.S. wherein the
responsibility of providing improvements and re-
pairs is clearly within the Board of Control's
authority. Reference is made also to Article
678f, V.C.S., Section 2, Paragraph (A), which in
effect prohibits occupying agencies from making
such modifications except through the State Board
of Control as the 'Using Agency." Reference is
also made to Article 4413(32), V.C.S. Section 3
and Section 6. In this regard, reference is made
to Attorney General's Opinion No. C-78 (May 15,
1963) and Opinion No. M-695 (September 14, 1970).
"Specific examples of the office modification
required for agency programs are enumerated as
follows: (1) Agency obtains computer equipment
which requires additional air conditioning handling
units. The Board of Control is called upon to
provide and install these extra air conditioning
units. (2) Agency personnel expansion resulting
from new programs requiring modifications in office
layout, requiring relocation, removal and/or ad-
ditional partitions to provide more efficient
program functioning. (3) Agency installation of
sophisticated mechanical equipment requiring
special electrical service for proper function-
ing.
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Hon. Homer A. Foerster, page 3 (M-12?6)
II II
. , . .
In Attorney General's Opinion M-1274 (1972) it was
held:
"The State Department of Public Welfare may
contract with the State Building Commission and
the Board of Control for the renovation of the
fifth floor of the John Ii. Reagan State Office
Building, for the renovation of other portions
of that building to ,accomodate the installation
of computers and other equipment, and for the
improvement of the defective elevator system
currently in use in that building."
It was pointed out in this opinion that the Legislature
has provided that when improvements or repairs are needed in the
proper care of State-owned buildings maintained by the Board of
Control, the Board shall provide for such repairs or improvements.
Articles 67Sf, 673 and 665, Vernon's Civil Statutes.
Section 3 of Article 678m, Vernon's Civil Statutes,
provides:
"The Commission shall have the authority to
promulgate such rules and regulations as it deems
proper for the effective administration of this
Act. Under such terms and conditions as may be
provided by law, the Commission may acquire necessary
real and personal property, modernize, remodel, build
and equip buildings for State purposes, and make
contracts necessary to carry out and effectuate
the purposes herein mentioned in keeping with ap-
propriations authorized by the Legislature. Pro-
vided, however, that the Commission shall not sell
or dispose of any real property,of the State, except
by specific authority from the Legislature."
Section 3 of Article 4413(32), Vernon's Civil Statutes,
provides in part:
"Any state agency may enter into and perform
a written agreement or contract with other agencies
of the state for furnishing necessary and authorized
special or technical services, including the services
of employees, the services of materials, or the
services of equipment. . . .II
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Hon. Homer A. Foerster, page 4 (M-1276)
The provisions of Article 678m and 4413(32) above quoted
must be construed together with the statutory powers of the Board
of Control to provide for the proper care and maintenance of State-
owned buildings maintained by the Board of Control.
As pointed out in your request, the Legislature in
making appropriations to the Board of Control for the proper care
and maintenance of buildings under its management and control,
does not contemplate major renovations that may be necessary for
the proper utilization of office space by the occupying agency.
In certain instances this may be accomplished through the State
Building Commission under the authority granted to it by the pro-
visions of Article 67Sm, Vernon's Civil Statutes, and in other in-
stances it may be accomplished through interagency agreements
entered into by the Board of Control under the provisions of
Article 4413(32), Vernon's Civil Statutes.
In view of the foregoing your questions are answered
as follows:
Question 1. A State agency occupying space in a State
office building under the management and control of the State Board
of Control may expend appropriated funds for certain space modifi-
cations which are considered to be peculiar to the needs of that
agency necessary for the efficient performance of its program and
which are considered to be over and above normal building main-
tenance, repairs and improvements required for general occupancy.
Questions 2 and 3. This may be accomplished by the
occupying agency and the Board of Control entering into an inter-
agency agreement pursuant to the provisions of Article 4413(32),
Vernon's Civil Statutes.
SUMMARY
A State agency occupying space in a State
office building maintained and controlled by the
Board of Control may expend specifically appropriated
funds for certain space modifications which are
necessary to the peculiar needs of that agency
necessary for the efficient performance of its
program and which are considered to be over and
above normal building maintenance, repairs and im-
provements required for general occupancy, and such
agency may enter into an interagency contract with
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Hon. Homer A. Foerster, page 5 (M-1276)
the Board of Control for such purpose.
General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Banks
J. C. Davis
Roland Carlson
Harry Green
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALXER
Executive Assistant
NOLA WHITE
First Assistant
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