Case Information
*1 The Attorney General of Texas
May 5, 1983 JIM MATTOX
Attorney General
Honorable Mary Polk Opinion No. JM-30 Supreme P. 0. BOX 12546 [51214752501] Austin. Telecopier Telex 9101674.1367 TX. 76711. Court Building 5121475.0266 [2546] Austin, Texas P. 0. Box 2910 Chairman Comittee Texas House of Representatives on Human Services 78769 Re: Constitutionality Bill No. 1002 relating Pay surcharge for on telephone bills telecommunication of House to a to
devices for the deaf 1607 Main St., Suite 1400 Dear Representative Polk: Dallas, TX. 75201.4709 2141742.6944
You have requested our opinion regarding the constitutionality 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 placement board," 82.003, within the Texas Commission 9151533-3464 Deaf, whose function it is to administer "telecommunications P Houston. 7131650-0666 120 Dallas Ave., suite TX. 77002.6966 [202] under the bill eligible device placement program. individuals." is: Sec. 82.002. . . to provide A "telecomnunications telecomunications devices device" to
a device used with a basic telephone unit to provide a means by which deaf, hearing impaired, 606 Broadway. Suite 312 Lubbock. TX. 79401-3479 speech impaired individuals can effectively 6061747.5236 cowmunicate. Sec. 82.001(6).
4309 N. Tenth. Suite B McAllen. TX. 76501-1665 5121662.4547 A deaf, hearing impaired, or speech impaired person who desires
to participate the program required to apply to the Texas Commission the Deaf, which is empowered issue eligibility 200 Main Plaza. Suite 400 certificates to qualified individuals. The board is directed San Antonio, TX. 76205.2797 distribute telecommunications devices "telephone distribution 5121225-4191
centers used by utilities providing telephone services," 82.009, which turn distribute them to individuals who present An Equal Opportunityi eligibility certificates. Affirmative Action Employer
House Bill No. 1002 also establishes a "telecommunications device placement fund" as a "special fund outside the state treasury." The fund: "is created through imposition collection 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 services. 82.006. The SW.
, transfer to the board funds utility is required to The board is then empowered to collected pursuant to the surcharge. “award the purchase contract [for the telecommunications devices] 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 constitutional. Article 51, of the Texas Constitution provides: 51. Grants of public money prohibited;
sec. 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 indigent and disabled Confederate soldiers and sailors under such regulations and limitations as may be deemed by the Legislature as expedient, their widows and indigent circumstances under such regulations
limitations as may be deemed by the Legislature as expedient; provided the provisions of 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 private purposes; state participation in programs financed with private or funds rehabilitation 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 all public money shall be published annually, such manner as shall be prescribed by law.
(b) State agencies charged with responsibility of providing services to those who are blind, crippled, or otherwise physically mentally handicapped may accept money from private or federal sources, designated by the private or source as money to be used in and establishing and facilities for -Wppi*g those who are blind, assisting 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, establishing and -wiwi*g facilities for assisting those who are blind, crippled, or otherwise physically or mentally handicapped in becoming gainfully employed, rehabilitating and restoring the handicapped,
in providing other services determined by the state agency to be essential 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 purpose for which it was given. Notwithstanding any other provision this Constitution,
state agencies may expend money accepted under this subsection without the necessity an appropriation, unless the Legislature, by law, requires the money be expended only 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 which the state agencies may expend the money.
Money accepted under this subsection for a purpose prohibited by the Legislature shall be returned the entity that gave the money.
This subsection does not prohibit state agencies authorized render services
handicapped from contracting with privately-owned local facilities for necessary and essential 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 behalf 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 categories enumerated under article III, section 51-a are invalid). It therefore our opinion that Senate Bill No. 628 is invalid under article III, 51 and article XVI, section 6 of the Texas Constitution.
The opinion noted also that article 51-a, constitution:
permits certain assistance programs when federal matching funds are available. If appropriate 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 this reasoning is equally applicable 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, *5 . :,
the state. In our opinion, such a program clearly contravenes article III, 51, and article XVI, section 6, the Texas Constitution. In view of this determination, we need not address your other questions.
SUMMARY House Bill No. 1002, which proposes to provide telecormnunications devices the deaf, hearing impaired, and speech impaired, to be financed by a surcharge bills, is violative
article 51, and article XVI, section 6, of the Texas Constitution.
Very truly you .
J-k JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton
Bruce Youngblood