Case Information
*1 The Attorney General of Texas JIM MAlTOX July 11, 1985
Attorney General Honorable Oscar 8. Hauzv Oninion I?o. 311-330
Supreme Court Building Chairman P. 0. Box 12545 Austin, TX. 78711. 2549 Cosnuittee on JurisI’rudence Re: Whether the state may pro- 51214752501 Texas State Senate vide telecommunication services Telex @lO/B74-1387 P. 0. Box 12428, Crpitol Station to a private foundation Telacoplar 51214750266 Texas 78711 Austin, 714 Jackson. Suite 7W Dear Senator Gauzy: Dallas, TX. 75202J5C8 2141742-8944
You have asked whether article 601b. section 10.07, V.T.C.S.,
authorizes the Sl.a.te Purchasing and General Services Commission [hereinafter the “C~~~moission”] to contract with a private foundation 4S24 Alberta Ave.. Suite 180 El Paso. TX. 799052793 for the utilization of the state telecommunication system. This 9151533-3464 statute provides: The cmmission may contract with each house of 1901 Texas, Suite 700 the legislature, legislative agencies, counties, Houston. TX. 77W2-3111 cities, districts. and other political sub-
713l2235886 divisionr; and agencies not witbln the definition of ‘state agency,’ for utilization of the state 696 Broadway, Suite 312 telecommunications system. Lubbock, TX. 794013479 ew747.5239 Section 1.02(2) of srticle 601b, V.T.C.S., defines “state agency” as: 4309 N. Tenth. Suite B (A) my department, comsnission, board, office, McAllen. TX. 7850%1885 or other agency in the executive branch of state 512tSS2.4547 gove-nt: created by the constitution or a
statute of this state; 200 Maln Plaza. Suite 400 San Antonio. TX. 79205.2797 (B) I:he Supreme Court of Texas, the Court of Criminal Appeals of Texas, a court of civil
appeals, or the Texas Civil Judicial Council; or An Equal Opportunity/ Attlrmatlve Action Employer (0 ia university system or an institution of
higher c:ducation as defined in Section 61.003, Texas Education Code, as amended, other than a public junior college.
Section 1.02(2) outlines three classes of governmental entities. The entities included in section 10.07 are those governmental entities not included in the deE:tnltion of state agency under section 1.02(2).
Eonorablc Oscar 8. Mauzy - E'age 2 (JIG330)
You inform us that the foundation is s nonprofit organization which provides education and care for multi-handicapped children. The foundation is 99 percent s’tate funded, and deals primarily with state agencies such as the Texas Department of Human Resources, the Texas Department of Mental Realtih and Mental Retardation, and the Texas Rehabilitation Commission. You also inform us that apparently 95 per- cent of the foundation's long distance costs are incurred in communi- cating with these state agencies. Finally, your letter advises that if the foundation could cut. the cost of long distance bills, it would save the state money. We assume that the foundation was organized under the Texas Ron-Profit Corporation Act. See generally V.T.C.S. art. 1396-1.01 et seq. The answer to your first question depends on whether the foundation is an entity within the meaning of section 10.07 with which the commission may contract.
Section 10.07 enumerates particular types of entities which are followed by the general term "agencies." V.T.C.S. art. 601b. 610.07. It is this term which is ambiguous and we must resort to rules of statutory construction. W'ten general words follow the enumeration of a particular class of perr;c,ns or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. This rule is based on the supposition that if the leE,islature had intended the general words to be used in an unrestricted sense, they would have made no mention of the particular classes. Seer Farmers' & Mechanics' Rational Bank v. --- m, 137 S.W. 1120 (Tex. 1911); see also 53 Tex. Jur. 2d 5155
Statutes (1964). specific teTm8 precz;;i i;hlr term "agencies" is restricted by the
It is clear that all cf the enumerated entities in section 10.07 have some form of governslental status under the constitution and statutes of this state. Hauses of the legislature, counties, muoici- palities and districts are created and authorized by the Texas Consti- tution. See Tax. Const. art. III, I 1 (houses of the legislature); XI, 564 6 5 (municipalities); srt. XVI, art. XI, 01(counties) ; art. $59 (special purpose districts); art. IX. 514-11 (special purpose districts). Legislative agencies are created by the statutes. See V.T.C.S. art. 542913, 91 (leSJ.slative council); art. 5429c (legislative budget board); see generall:! art. 5429g. I1 (definition of legislative agency). Therefore, we munt ascertain whether the foundation has a governmental status for the purposes of section 10.07.
One of the main purpcses for the creation of the state tele- cossnunications system was to reduce the cost of telephone services to the state government. Cf. 'J.T.C.S. art. 601b. 610.03. Since 99 per- cent of the foundationFfunds are received as a result of govern- mental contracts with state agencies and other governmental sources, you suggest that it would be reasonable to conclude that the organisa- tlon's utilization of the state communication system would have the *3 .
Eonorable Oscar Il. Gauzy - Pqle 3 (~~-330)
effect of reducing gwemmer.tal spending. Rowever, such a conclusion would have the effect of allcwing every orgsnization receiving public funds to utilize the state telecommunications system. This practice would, however, be contrary t,o the expressed limiting words in section 10.07. The statutory language is the best evidence of the legislative intent. Sabine Pilots Assn. v. Lykes Brothers Steamship, Inc., 346 S.W.2d 166 (Tax. Civ. App. -Austin 1961, no writ).
The receipt of public funds is sufficient to subject the founda- tion to the Open Records act. See V.T.C.S. art. 6252-176, 5(2)(1)(F). We believe, however, that ':bisfact is insufficient to confer upon this private organization a governmental status of the class within the meaning of section 10.07.
The foundation provid'as a vital service to the state. The foundation operates six of 43 licensed residential treatment centers in Texas. Because the Texas Department of Buman Resources [TDBRI is named managing conservator J:E several thousand children each year by the state courts, the foundation's facilities are among those used by TDHR as a placement source. Although the foundation assists in fulfilling this public purpose, it is a private nonprofit corporation created for a orivate. as dj.stinauished from a surely public. purpose. See Miller v: David; 150 S.Wr2d 973 (Tex. -1941j.- It ~1s nit a Ge-ntal agency. Cf. Un:Lversity Interscholastic League v. Payne, - -- 635 S.W.2d 754, 756-57, n.4 (Tex. App. - Amarillo 1982, writ dism'd).
Accordingly, we conclude that the foundation is not an entity with which the Commission may contract for the utilisation of the state telecommunications syllt:em.
You also ask whether, regardless of section 10.07, the Commission =Y "nonetheless contract with the foundation for utilization state telecowaunications syl;t:em." We think not. The State Purchasing and General Services Commisc;ion is an administrative agency created by statute. V.T.C.S. art. 601'b et seq. The Supreme Court has held that where power is granted to zir. administrative agency and the method by which it is exercised is I'rescribed. the prescribed method excludes all others and must be fall&led. Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex. 1968). Section 10.07 is the onlv authority by which the Commission may contract: with the foundation and for the ieasons stated above, we conclude that the Commission may not contract with the foundation for the ut:t:Lization of the state telecommunications system.
SUMMARY Article 601b, section 10.07, V.T.C.S.. does not authorize the State Purchasing and General Services Commissl.on to coutract with a private *4 Eonorable Oscar 8. Gauzy - Page 4 (JM-330)
nonprofit corporation for the utilization state telecomunic~ations system.
Very truly your # / _I A-4 General of Texas
Attorney TOM GREEN
First Assistant Attorney Gewral
DAVID R. RICHARDS
Executive Assistant Attorne], General
ROBERT GRA-i
Special Assistant Attorney General
BICR GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINION COHMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillorg
Jim noellinger
Jennifer Riggs
Nancy Sutton
p, 1514