Opinion

Untitled Texas Attorney General Opinion

Court: Texas Attorney General Reports
Filed: Jul 2, 1983
Status: Published
On the bench: Jim Mattox
Cited by: 0 cases
Authority: More cited than 3.5%

The opinion

The Attorney General of Texas

May 5, 1983

JIM MATTOX

Attorney General

Honorable Mary Polk Opinion No. JM-30

Supreme Court Building Chairman

P. 0. BOX 12546

Comittee on Human Services Re: Constitutionality of House

Austin. TX. 76711. 2546

51214752501

Texas House of Representatives Bill No. 1002 relating to a

Telex 9101674.1367 P. 0. Box 2910 surcharge on telephone bills to

Telecopier 5121475.0266 Austin, Texas 78769 Pay for telecommunication

devices for the deaf

1607 Main St., Suite 1400

Dallas, TX. 75201.4709

Dear Representative Polk:

2141742.6944

You have requested our opinion regarding the constitutionality of

House Bill No. 1002, presently pending in the Sixty-eighth

4624 Alberta Ave., Suite 160

Legislature. The bill establishes a "telecommunications device

El Paso. TX. 79905-2793

9151533-3464

placement board," section 82.003, within the Texas Commission for the

Deaf, whose function it is to administer the "telecommunications

P device placement program. . . to provide telecomunications devices to

120 Dallas Ave., suite 202 eligible individuals." Sec. 82.002. A "telecomnunications device"

Houston. TX. 77002.6966

under the bill is:

7131650-0666

a device used with a basic telephone unit to

606 Broadway. Suite 312 provide a means by which deaf, hearing impaired,

Lubbock. TX. 79401-3479 or speech impaired individuals can effectively

6061747.5236

cowmunicate.

4309 N. Tenth. Suite B Sec. 82.001(6).

McAllen. TX. 76501-1665

5121662.4547 A deaf, hearing impaired, or speech impaired person who desires

to participate in the program is required to apply to the Texas

200 Main Plaza. Suite 400

Commission for the Deaf, which is empowered to issue eligibility

San Antonio, TX. 76205.2797 certificates to qualified individuals. The board is directed to

5121225-4191 distribute telecommunications devices to "telephone distribution

centers used by utilities providing telephone services," section

82.009, which in turn distribute them to individuals who present

An Equal Opportunityi

Affirmative Action Employer eligibility certificates.

House Bill No. 1002 also establishes a "telecommunications device

placement fund" as a "special fund outside the state treasury." The

fund: "is created through the imposition and collection of a

surcharge on monthly telephone bills," in an amount to be determined

by the board, but not to exceed 25 cents. This surcharge would be

payable by each consumer of telephone services. SW. 82.006. The

p. 128

Honorable Mary Polk - Page 2 (JM-30)

telephone utility is required to transfer to the board the funds

collected pursuant to the surcharge. The board is then empowered to

“award the purchase contract [for the telecommunications devices] to

the bidder who conforms closest to the specifications required.” The

State Purchasing and General Services Act, article 601b, V.T.C.S..

does not apply to the purchase of the telecommunications devices, but

the board must use a “substantially equivalent” bidding procedure.

Section 82.008.

You inquire whether House Bill No. 1002 is constitutional.

Article III, section 51, of the Texas Constitution provides:

sec. 51. Grants of public money prohibited;

exceptions.

The Legislature shall have no power to make any

grant or authorize the making of any grant of

public moneys to any individual, association of

individuals, municipal or other corporations

whatsoever; provided, however, the Legislature may

grant aid to indigent and disabled Confederate

soldiers and sailors under such regulations and

limitations as may be deemed by the Legislature as

expedient, and to their widows in indigent

circumstances under such regulations and

limitations as may be deemed by the Legislature as

expedient; provided that the provisions of the

Section shall not be construed so as to prevent

the grant of aid in cases of public calamity.

Article XVI, section 6, of the Texas Constitution provides:

Appropriations for private purposes; state

participation in programs financed with private or

federal funds for rehabilitation of blind,

crippled, physically or mentally Handicapped

Persons.

(a) No appropriation for private or individual

purposes shall be made, unless authorized by this

Constitution. A regular statement, under oath,

and an account of the receipts and expenditures of

all public money shall be published annually, in

such manner as shall be prescribed by law.

(b) State agencies charged with the

responsibility of providing services to those who

are blind, crippled, or otherwise physically or

mentally handicapped may accept money from private

p. 129

Honorable Mary Polk - Page 3 (JM-30)

or federal sources, designated by the private or

federal source as money to be used in and

establishing and -Wppi*g facilities for

assisting those who are blind, crippled, or

otherwise physically or mentally handicapped in

becoming gainfully employed, in rehabilitating and

restoring the handicapped, and in providing other

services determined by the state agency to be

essential for the better care and treatment of the

handicapped. Money accepted under this subsection

is state money. State agencies may spend money

accepted under this subsection, and no other

money, for specific programs and projects to be

conducted by local level or other private

nonsectarian associations, groups, and nonprofit

organizations, in establishing and -wiwi*g

facilities for assisting those who are blind,

crippled, or otherwise physically or mentally

handicapped in becoming gainfully employed, in

rehabilitating and restoring the handicapped, and

in providing other services determined by the

state agency to be essential for the better cars

or treatment of the handicapped.

The state agencies may deposit money accepted

under this subsection either in the state treasury

or in other secure depositories. The money may

not be expended for any purpose other than the

purpose for which it was given. Notwithstanding

any other provision of this Constitution, the

state agencies may expend money accepted under

this subsection without the necessity of an

appropriation, unless the Legislature, by law,

requires that the money be expended only on

appropriation. The Legislature may prohibit state

agencies from accepting money under this

subsection or may regulate the amount of money

accepted, the way the acceptance and expenditure

of the money is administered, and the purposes for

which the state agencies may expend the money.

Money accepted under this subsection for a purpose

prohibited by the Legislature shall be returned to

the entity that gave the money.

This subsection does not prohibit state

agencies authorized to render services to the

handicapped from contracting with privately-owned

or local facilities for necessary and essential

p. 130

Honorable Mary Polk - Page 4 (JM-30)

services, subject to such conditions, standards,

and procedures as may be prescribed by law.

In Attorney General Opinion MW-22 (1979). this office said that a

program to provide assistance for payment of utility costs for needy

aged individuals was violative of article III, section 51, and article

XVI, section 6, of the Texas Constitution. The opinion declared:

Although the prohibitions of article III, section

51 and article XVI, section 6 are not applicable

if the governmental expenditure is made for a

proper public purpose, see state V. city of

Austin, 331 S.W.2d 737 (Tex. 1960). we do not

believe that Senate Bill No. 628 mav be so

characterized. This office has on *numerous

occasions held that similar direct grants on

behalf of individuals, paid solely out of state

funds, do not serve a proper public purpose. See,

*, Attorney General Opinion Nos. H-602 (1975)

(school district may not purchase personal injury

protection or uninsured motorist coverage); H-520

(1975) (county may not contribute public funds to

the construction of a facility to be used and

operated by a private corporation); C-523 (1965)

(state university may not pay on honorarium to an

individual making a commencement address); V-809

(1949) (public funds may not be expended on behalf

of victims of spastic or epileptic fits); O-2578

(1940) (public welfare grants without regard to

categories enumerated under article III, section

51-a are invalid). It is therefore our opinion

that Senate Bill No. 628 is invalid under article

III, section 51 and article XVI, section 6 of the

Texas Constitution.

The opinion noted also that article III, section 51-a, of the

constitution:

permits certain assistance programs when federal

matching funds are available. If appropriate

federal legislation were enacted, a program of the

type you suggest could be implemented by the State

of Texas. Otherwise, a constitutional amendment

would be required.

We believe that this reasoning is equally applicable to the

program which House Bill No. 1002 proposes to establish, in that it

constitutes a direct grant of valuable property to needy individuals,

paid solely out of funds collected in the name, and for the use of,

p. 131

. :,

Honorable Mary Polk - Page 5 (JM-30)

the state. In our opinion, such a program clearly contravenes article

III, section 51, and article XVI, section 6, of the Texas

Constitution. In view of this determination, we need not address your