Untitled Texas Attorney General Opinion ( 1970 )

Hon. J. R. Singleton Opinion No. M- 721
Executive Director
Texas Parks and Wildlife Re: Various questions involving
Department plans and specifications and
John H. Reagan Building other necessary costs in con-
Austin, Texas 78701 nection with the construction
of a fish pass (and bridge)
between Corpus Christi Bay
and the Gulf of Mexico adjacent
Dear Mr. Singleton: to Mustang Island.
Your request for an opinion on the above subject matter
concerns the expenditure of Item 23 in the appropriation to the
Parks and Wildlife Department contained in the current General
Appropriation Act. Your questions are as follows:
"1, Can the State Highway Department, through
contract with the Parks and Wildlife Department, pre-
pare plans and specifications for the Parks and
Wildlife Department for said bridge and approaches
on Park Road 53 of the State highway system?
"2. Can the State Highway Department, through
interagency contract with the Parks and Wildlife De-
partment, construct the bridge and approaches?
“3. Is there any authority, independent of
Article 4413(32)# V.C.S., for the State Highway De-
partment itself, or through contract with an in-
dependent contractor, to build the bridge and ap-
proaches for the Parks and Wildlife Department?
“4. Can the Parks and Wildlife Department,
through the State Building Commission, under the pro-
visions of V.C.S. Article 678(f) (State Building Con-
struction Administration Act) construct said bridge
and approaches even though it is on the designated
State highway system?
“5. Can the Parks and Wildlife Department, by
meeting the requirements and plans and specifications
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Hon. J. R. Singleton, page 2 (M-721)
of the State Highway Department, contract for the
construction of the bridge and approaches on the
State designated highway system, with an indepen-
dent contractor?
"6. Can the State Building Commission, acting
for the Parks and Wildlife Department, enter into
an agreement with the State Highway Department for
the design $nd construction of the subject bridge and
approaches?
Item 23 of the appropriation to the Parks and Wildlife
Department contained in House Bill 2, Acts 6lst Leg. 1969, 2nd
C.S., reads as follows:
'For the Years Ending
August 31, 1970 August 31, 1971
"23. For preparation of detailed plans and specifi-
cations, and all other necessary costs in connection
with first phase construction of a water exchange
pass (and bridge) between Corpus Christ1 Bay and the
Gulf oftMexico adjacent to Mustang'Island according
to preliminary engineering plans. .............*...
$1,500,000 $1,500,000.”
In construing the above quoted provisions we held in
Attorney General's Opinion M-574 (1970):
"You are therefore advised in answer to your
second and third questions that if the Parks and
Wildlife Department intends to maintain the 'water
exchange pass' as a fish pass, such funds may be
expended gram the Special Game and Fish Fund No.
9; . . .
In connection with the construction of the above described
fish pass you state in your request that the fish pass would cut
through a part of the designated highway system on Mustang Island
and would therefore necessitate the construction of the bridge
referred to in the appropriation quoted above.
In Attorney General's Opinion Number R-1930, dated Dec-
ember 14, 1949, to H. D. Dodgen, Executive Secretary, Game, Fish
and Oyster Commission, it was held that moneys in the Special Game
and Fish Fund could be expended to build a bridge where the channel
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. .
Hon. J. R. Singleton, page 3 (M-721)
for a fish pass would cross a designated State highway requiring
the construction of a bridge to cover the channel. The opinion
stated:
"It is, therefore, our opinion under the
facts submitted that the building of this bridge
to replace the highway and to cover the channel to
be dredged is a necessary incident to and part of
the construction and maintenance of passes leading
from one body of tide-water to another, and the
cost of constructing such bridge may be paid out
of money approprfated to the Game, Fish and Oyster
Commission by the Legislature for the purpose of
constructing and maintaining these passes.
"One further question remains and that in-
volves the duty of maintenance once the bridge is
constructed. It is our opinion that once the bridge
has been built by the Game, Fish and Oyster Com-
mission and accepted by the State Highway Department
as a part of the State system, the maintenance
thereof Is the duty of the State Highway Commission.
Article bb74q-4, V.C.S.O
Section 3 of Article 4413 (x2), Vernon's Civil Statutes,
The Interagency Cooperation Act , reads, in Its relevant part:
,I
Provided, however, nothing herein
shall authorize any agency to construct any hfgh-
way, street, road, or other building or structure
for,any other agency, except as otherwlst speclfi-
tally authorized by existing law, o . e
Article 66744-4, Vernon's Civil Statutes, * provides:
"All further improvement of said State Hfgh-
way System shail be made under the exclusive and
direct control of the State Highway Department and
with appropriations made by the Legislature out of
the State Highway Fund. Surveys, plans and specffi-
cations and estimates for all further construction
and improvement of said system shall be made, pre-
pared and paid for by the State Highway Department. 0 D DJI
*
This Article is codified In Title 116, Roads, Bridges and Ferries
in Chapter One entitled State Highways , and fn Subdivision 1A en-
titled Construction and Maintenance.
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‘ .
Hon. J. R. Singleton, page 4 (M-721)
In view of the foregoing, it is our opinion that the
bridge in question may be construoted as a necessary incident to
the construction of the fish pass in question and that such bridge
will become a part of the highway system. Since it is the duty of
the Highway Department to construct and maintain highways, includ-
ing bridges, it is our opinion that the provision contained in Sec-
tion 3 of Article 4413(32), above quoted, is not applicable for
the reason that such construction has been "otherwise authorized
by existing law."
You are accordingly advised in answer to your first
question that the State Highway Department, through a contract
with the Parks and Wildlife Department, may prepare plans and
specifications for the Parks and Wildlife Department for the
bridge in question and approaches on Park Road 53 of the State
highway system.
In answer to your second question, it is our opinion
that the State Highway Department through an interagency contract
with the Parks and Wildlife Department may construct the bridge
and approaches, either by its own personnel or by a contract with
an independent contractor.
In answer to your third question, you are advised that
since the moneys contained in Item 23 are not Highway fund moneys
and the appropriation was not made to the Highway Department, the
Highway Department may not expend these funds Independent of a con-
tract with the Parks and Wildlife Department.
The fish pass and bridge referred to In your request is
not a "building", nor is It an Integral part of a building con-
struction project. In our opinion Article 678f, Vernon's Civil
Statutes, is not applicable. Section 2(c) of that statute pro-
vides that a building construction project includes any buildins
or any structure or any facility or utility appurtenant thereto.
These terms are subject to a construction in harmony with the
constitutional provision creating The State Building Commission
and authorizing Its powers. Article III, Section 51-b(c), Consti-
tution of Texas, authorizes the Legislature to fix the terms
and conditions unon which the Commission "may acquire necessary
and real and personal property, salvage and dispose of property un-
suitable for State purposes, modernize, remodel, build and equip
buildings for State purposes, and negotiate and make contracts
necessary to carry out and effectuate the purposes herein mentioned."
(Emphasis added.)- Thus, Article 678f, Section 2(c) may grant no
broader powers to the Building Commission than those given in
Article III, Section 51-b(c). Purthermore, "any structure or
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Hon. J. R. Singleton, page 5 (M-721)
any facility or utility appurtenant thereto" are subject to the
construction that they mean like things in the same nature of a
"building". 53 ~Tex,Jur.28 221, Statutes, Sets. 154, 155.
In interpreting the word "building" as used in the
Constitution, we must not give it a technical construction. 8A
Texas Digest 17, Key No. 13, Constitutional Law. Rather, we are
required to interpret it as it would be understood by the average
voter, unlearned in the law. The meaning to be ascribed to it is
the natural, ordinary, common sense meaning. 8A Texas Digest
18-21, Key No, 14, Constitutional Law, Brady v. Brooks, 99 Tex.
378, 89 S.W. 1052 (1905); Collingsworth County v. Allred;
Tex. 473, 40 S.W.2d 13, 15 ,n931); lb C.J.S. 79 Const.Law, Sec.
17, n. 54-55.
Its ordinary meaning Implies the idea of habitation for
the permanent use of man, or an erection connected with his perma-
nent use. Black's Law Dictionary, Fourth Edition, g. 244, ucder
"Building" and cases cited. In statutes, the word building is
held to depend for its meaning in some degree on Its particular
subject and its connection with other words. Johnson v. State,
96 Crim.Rep. 216, 257 S.W. 551 (1923). As commonly understood,
it is a house for residence, business, or public use, or for the
shelter of animals or stora e of goods. Favro v. State, 39 Crlm.
Rep. 452s 46 S.W. 932 (18987 o
In view of the foregoing, in answer to your fourth
question, you are advised that the fish pass and bridge, or ap-
proaches thereto, do not constitute a building or like structure,
and it is not an integral part of a building construction project.
Consequently, the Parks and Wildlife Department may not construct
the same through the State Building CommisSiOn.
In answer to your fifth question, you are advised that
the Parks and Wildlife Department may contract for the construction
of the bridge and approaches with an independent contractor,
In answer to your sixth question, we have concluded
that the State Building Commission is not authorized to enter Into
a contract with the State Highway Department for the design and
construction of the bridge and approaches.
SUMMARY
Moneys appropriated out of Item 23 to the Parks
and Wildlife Department contained in the current
General Appropriation Act may be expended by the
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. . .
Hon. J. R. Singleton, Page 6 (M-721)
Parks and Wildlife Department for the construction of
a bridge required to be constructed, since the fish
pass will cut through Park Road 53, a part of the
State highway system. The Texas Highway Department
through an Interagency contract with the Parks and
Wildlife Department may construct such bridge either
by its own personnel 'or through a contract with an
independent contractor. Article 678r, Vernon's
Civil Statutes, is not applicable to such contract
and therefore the State Building Commission has no
duties with reference to the construction of said
bridge.
da?s
MARTIN
eneral of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
J. C, Davis
Bob Lattimore
David Longoria
Richard Chote
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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