Case Information
*1 The Attorney General of Texas
October 8, 1980
. Attorney General
Homer A. Poerster Opinion No. -251 Executive Director a. ‘.
State Purchasing & General Re: Whether the state can pay Services Commission notary license fees of its employees L.B.J. Building
Austin, Texas 70711
Dear Mr. Foerster:
You have asked whether the State Purchasing and General Services Commission funds to pay the notary license fees its employees when it determines that their services as notaries public are needed by the commission in the exercise of its statutory duties.
The answer to your question depends on (1) the existence of general legislation authorizing you to use notary services and (2) an appropriation that purpase. Tex. Const. art. III, S44; art. VlR, S6. See Attorney General Opinion H-289 (1974). ln addition, a threshold question must be addressed: whether the legislature may constitutionally authorize a state agency to spend public funds for notar license fees its employees. Attorney General Opinion O-6637 US45 r held that state agencies could not constitu- tionally pay the bcndirg fee fcr a notary in its employ. The notary whose bond@ fee was paid by the state could provide notary services outside of his state employment and receive the statutory fees fcr them. Be would thus incur a private benefit at public expense, which Attorney General Opinion O-6637 found to violate the following language of article RI, section 51 of the Texas Constitution:
The Legislature shall have no power to make any grant or authorize making of any grant of public . -’ to any indivi&aL . . . moneys
See also Attorney General Opinion G5382 (1943) (art. III, S52 of constitution ~prohibits county from pay@ costs -of qualifying county employees as notaries public).
Judicial interpretations of article RI, section 51 and similar constitu- tional provisions since Attorney General Opinion O-6637 cause us to re- examine its conclusion. In Barrington v. Cokinos, 338 S.W. 2d 133 (Tex. *2 A. Foerster - Page Two @8+2511
1960X the Supreme Court stated that an expenditure for the direct accomplishment of a legitimate public purpose is not rendered unlawful by the fact that a privately owned business be benefitted thereby. It rpheld the use of public funds moving a railroad right-of-way to eliminate grade crossings. See also State V. City of Austin, 331 S.W. 2d 737 (Tex. 1960) (Ipholdillg Rlccation ofe utilities necessary for highway impmovements); Davis v. City of Lubbock, 326 S.W. 2d 699 (Tex. 1959) (slum clearance of lands to be developed by private ownership); Attorney General Opinion H- 403 (19741
Brazoria County v. Perry, 537 S.W. 2d 69 (Tex. Civ. App. - Houston [lst Dist.1 1976. no writ) dealt with article IIl. section 52 which Drohibits a county from lendim its credit or granting public funds &I an individuaL i deputy sheriff-employed by”& county attended at public expense a train@ course required of peace officers for certification under article 4413 (29aa), V.T.C.S. He also received his salary as a deputy sheriff during this time. He agreed to repay the county the costs of his attendance if he left county employment before the end of two years. He in fact left his employment and went to work as a city police officer. When the county Sought payment under the agreement, he attacked it as a loan of credit which would be invalid under article Ill, section 52. The court found the agreement valid and stated that the funds paid the deputy sheriff while attendie the course represented expenditures for the direct accomplishment of a legitimate public purpose. See V.T.C.S. art. 4413 (ZSaa), S7(b) (state reimbursement of political s&division f=qenses incurred in attendirg peace officer train&! program).
This office hss also held in numerous opinions that the state may constitutionally pay for employees to attend schools and conferences training, where the expenditure was directly and stistantially related to the performance of the Stetek governmental function. Se, e.g., Attorney General Opinions H-133 0973) (school trustee’s expenses in attending conference); WW-638 (1959) (employee’s expenses in attend@ the Yale Summer School of Alcohol Studies); WW-433 (1956) (payment of employee’s expenses, salary and emoluments during a nine month course in hospital administration).
We believe the reason@ of these cases and opinions is applicable to the payment of an employee’s notary license fees. The legislature may authorize payment of the fees, where the expenditure is directly and stistantially related to the performance the state’s governmental function. In section 3LO21 of the Natural Resources Code, legislature itself determined that the General Land Office could pay the notary license fees of an employee who provides notary public services as part of his duties. The General Appropriations Act authorizes the Land Office to use appropriated funds :; reimburse employees for the notary license and bonds.
The statute under which the State Purchasing and General Services Commission operates &es not expressly authorize the payment of notary license fees for the require to perfccm notary services. However, it is not always necessary employees you to tmve express authority for an expenditure which incidentally benefits the employee while accomplishing a public Service. See, e.g., Attorney General Opinions H-944 *3 flrw251) Homer A. FoeKter - Page Three
(1977) (purchase of uniforms for inspectors); H-299 (1974) (Parks and Wildlife may spend funds to feed and house employees as part of their compensation); M-1031 (1971) (Department of Health may purchase shoulder patches fm persons driving public and private ambulances).
We are informed that the commission must have documents notarized primarily in mnnection with its invoichg and payment functions. V.T.C.S. art. 601b, S3.15. In addition it must verify by affidavit all payroIL claims and certain other accounts stimitted to the comptroller and must make sworn estimates regardirg deficiencies which occur in connection with contracts for state slqplies. V.T.C.S. arts. 4344,4351, 4359.
Section 2.06 of article 601b, V.T.C.S., provides that the “executive director shall manage the affairs of the commission subject to and under direction of the commission.” He is authorized to employ a staff necessary to administer the functions of the commission. Sec. 2.06(c). We believe that the executive director, acting at the direction of the commission, has implied authority to decide that employees required to perform notary services for the commission may be reimbursed the cost of the license fees so long as the agency will receive adequate return for its expenditure.
When an employee performs notary services for the commission, we believe his notary license fees could come from the same item which provides his compensation. The license fees are merely an additional cost of providing services required by the commission’s statutory mandate. There are various line items that might be applied to the payment of notary license fees in relation to the invoicing and payment function. For example, under the head@ “Central Purchasing,” there is an appropriation “Clerical Support.” Under “Centralized Services” there is an item for “Purchase Audit and ControL” General Appropriations Act, Acts 1979, 66th Leg., ch. 843, at 2608. If notarization is needed in connection with the services funded from these items we believe the notary fees may also be paid from these items.
SUMMARY
The State Purchasing and General Services Commission may funds to pay the notary license of its
employees who provide notary public services as part of their duties. ’
,2x&-.
Attorney General of Texss JOHN W. FAINTER, JR.
First Assistant Attorney General *4 A. Hoerster - Page Four (~251)
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPlNlON COMMlTTEE
C. Robert Heath, Chairman
Jon Bible
Susan Garrison
Ride Gilpin
Kathy Reed