Did using former state ad valorem tax funds exempt Texas public-college construction from Coordinating Board approval?
Apply this to your situation
This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-77: College Construction and Coordinating Board Approval
Plain-English summary
JM-77 concluded that Texas public-college construction projects needed Coordinating Board approval even when former state ad valorem tax receipts funded the project in whole or in part. It expressly overruled Attorney General Opinion MW-594, which had reached the opposite conclusion.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf"Attorney General Opinion MW-594 is hereby overruled."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
MW-594 had treated former article VII, section 17 as a constitutional exemption from Education Code section 61.058. JM-77 reconsidered that view after voters repealed article VII, section 17 and amended article VIII, section 1-e in the November 2, 1982 election.
"In our opinion, Attorney General Opinion MW-594 was incorrectly decided."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf"Article VII, section 17 was repealed at the November 2, 1982 election. Article VIII, section 1-e of the Texas Constitution was amended at the same election."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
The amendment preserved the purposes for which previously distributed receipts could be spent, but it did not preserve the old provision's self-enacting character. The opinion therefore found no continuing constitutional exception from Coordinating Board review.
"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.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
One exception remained: if the legislature had approved the project, separate Coordinating Board approval was unnecessary.
"Of course, if the project to be funded by these receipts has been approved by the legislature, Coordinating Board approval will be unnecessary."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Official treatment of an earlier opinion
JM-77 expressly overruled Attorney General Opinion MW-594.
"Attorney General Opinion MW-594 is hereby overruled."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Common questions
How much ad valorem tax funding triggered an exemption from Coordinating Board approval?
None. JM-77 said no proportion, including full funding, created an exemption merely because the money came from those receipts.
"You now inquire as to what proportion of the total funding of a project must derive from state ad valorem taxes in order to exempt it from the requirement of Coordinating Board approval under section 61.058(B) of the Education Code."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
What did article VIII, section 1-e do with previously collected state property taxes?
Receipts collected before the amendment's effective date were to be distributed by the legislature among eligible institutions. Receipts previously distributed could be used for prior-law purposes or repair and renovation of existing permanent improvements.
"Receipts from taxes collected before that date shall be distributed by the legislature among institutions eligible to receive distributions under prior law."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Why did the constitutional amendment change the approval analysis?
It changed how the receipts were distributed and preserved spending purposes without preserving the former self-enacting language that could have supplied an exemption.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf"It does not preserve the language that rendered article VII, section 17 'self-enacting.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Did legislatively approved projects need separate Coordinating Board approval?
No. JM-77 recognized that a project approved by the legislature did not require an additional Coordinating Board approval.
"Of course, if the project to be funded by these receipts has been approved by the legislature, Coordinating Board approval will be unnecessary."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Why did JM-77 reject MW-594?
MW-594 relied on former article VII, section 17 itself to exempt the projects. JM-77 said that provision had been repealed and its potentially exempting language was no longer effective.
"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 higher education, projects funded under former article VII, section 17, of the constitution were held in that opinion to be exempted by the constitution itself."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Background and constitutional framework
Coordinating Board commissioner Kenneth H. Ashworth asked for clarification of MW-594 and specifically wanted to know how much state ad valorem tax funding a project needed for an exemption.
"You have requested clarification of Attorney General Opinion MW-594 (1982)."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf"You now inquire as to what proportion of the total funding of a project must derive from state ad valorem taxes in order to exempt it from the requirement of Coordinating Board approval under section 61.058(B) of the Education Code."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Section 61.058 generally required the Coordinating Board to approve or disapprove new construction at higher-education institutions.
"[S]ection 61.058 of the Education Code provides that the Coordinating Board shall approve or disapprove all new construction of facilities at institutions of higher education."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Holding
"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 funds. Attorney General Opinion MW-594 is overruled."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Citations and references
Constitutional and statutory provisions discussed by JM-77:
- "former article VII, section 17, of the Texas Constitution" Official PDF
- "section 61.058 of the Education Code" Official PDF
- "Article VIII, section 1-e of the Texas Constitution" Official PDF
Case cited by JM-77:
- "Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1976)" Official PDF
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0077
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0077.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
October 12, 1983
Mr. Kenneth H. Ashworth
Commissioner
Coordinating Board
Texas College and University System
200 E. Riverside Drive
Austin, Texas 78741
Opinion No. JM-77
Re: Whether Coordinating Board has authority to approve college construction funded in part by ad valorem tax funds received under former article VII, section 17, of the Texas Constitution
Dear Mr. Ashworth:
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 former article VII, section 17, of the Texas Constitution, are not 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 higher education, projects funded under former article VII, section 17, of the constitution were held in that opinion to be exempted by the constitution itself.
You now inquire as to what proportion of the total funding of a project must derive from state ad valorem taxes in order to exempt it from the requirement of Coordinating Board approval under section 61.058(B) of the Education Code.
In our opinion, Attorney General Opinion MW-594 was incorrectly decided. Article VII, section 17 was repealed at the November 2, 1982 election. Article VIII, section 1-e of the Texas Constitution was amended at the same election to provide as follows:
Sec. 1-e. 1. No State ad valorem taxes shall be levied upon any property within this State.
- 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 the general fund of the county collecting the taxes and may be expended for county purposes. Receipts from taxes collected before that date shall be distributed by the legislature among institutions 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, section 1-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 to 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 funds. Attorney General Opinion MW-594 is overruled.
Very truly yours,
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
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Get today's answer for your situation
You just read a 1983 opinion on this question. Ezel checks the current Texas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.