Arrs-.TEXAR '78T13 

October 4, 1973 

The Honorable Russell Cummings Opinion No. H- 120 

Executive Director, Texas Mass 

Transportation Commission Re: Construction of Mass 

1013 San Jacinto Transportation Commission 

Austin, Texas 78701 Act, Article 4413( 34), V. T. C. S. 

Dear Mr. Cummings: 

You have requested the opinion of this office on two questions related . 

to $ 8 of Article 4413(34), Vernon’s Texas Civil Statutes, the Texas Mass 

Transportation Commission Act adopted in 1969. Your two questions are: ’ 

1. “Does the enactment of this legislation (in 1969) 

constitute being ‘authorized by the State, ’ and are we 

therefore able to ‘accept and receipt’ for federal 

grants? If not, does the Governor have the authority to ‘authorize’ or does it require another act of 

the Legislature to ‘authorize’ what this sub,section 

describes? ” 

2. “Can TMTC grant financial assistance to Texas 

political subdivisions for planning public .mass transportation systems from. appropriations made by the 

Legislature for that purpose? ” 

The Act calls for the creation of the Texas Mass Transportation 

Conimission. Section 8(a) provides that its purposes shall be to encourage 

and assist in the development of public mass transportation and to encourage 

the establishment of rapid transit and other transportation media. Other 

subsections of $ 8 define the authority of the Commission. 

Subsection h, in part, provides: 

“The Commission may accept and receipt for federal 

and other grants either public or private,, for the state or 

any political subdivision thereof, when authorized by the 

p. 579 
The Honorable Russell Cummings, page 2 (H-120) 

state or subdivision, for the acquisition, construction, 

improvement, maintenance or operation of public mass 

transportation facilities . . . The state or the governing 

body of a municipality or other political subdivision may 

designate the commission as its agent to receive money 

under this section and the commission acting as agent 

may contract with the federal government for the acquisition, construction, improvement, maintenance, or operation of public mass transportation facilities. ” (Emphasis 

added) 

The State is the people and all political power of the State is inherent 

in them. Article 1, $ 2, Constitution of Texas; Dickson v. Strickland, 265 

S. W. 1012 (Tex. 1924); Love v, Wilcox, 28 S. W. 2d 515 (Tex. 1930). The 

people, in turn, exercise their inherent power through the Legislature. 

Article 2, $1, Constitution of Texas; Ferguson v. Wilcox, 28 S. W. 2d 526 

(Tex. 1930). Neither the Governor nor any other State officer may act 

for the State unless authorized to do so either by the Constitution or by 

statute. State v. Ragland Clinic-Hospital, 159 S. W. 2d 105 (Tex. 1942); 

Calvert v; Adams, 388 S. W. 2d 742 (Tex. Civ. App., Austin, 1965). rev. 

on other grounds, Adams v. Calvert, 396 S. W. 2d 948 (Tex. 1965). See 

also Attorney General Opinions M-1141, M-1199 (1972) and Letter Advisory 

No. 2 (1973). 

With these general principles in mind we would answer your first 

question that the enactment of the Texas Mass Transportation Commission 

Act, authorizing the Commission to accept and receipt for federal grants 

“when authorized” does not itself constitute the authorization. We believe 

that such “authorization” or “designation” would have to be expressed in 

another act of the Legislature as, for example, Article 5521b-22d, V. T. C. S., 

in which the Legislature exercised for the State the election authorized to 

be covered by the Texas Unemployment Compensation Act provided in 

Article 5221b-6(b)(2). Or, such authorlsation or designation may come 

from a political subdivision or an agency of the State which in turn has 

legislative authority to receive such grants. 

To the second part of your first quesi:ion we answer that, in our opinion, 

unless specificall~y authorized to do so by some statute, the Governor does 

not have the authority to extend authorization on behalf of the State. Article 

4413(34)(h) specifically authorizes the governing body of a municipality or 

p. 580 
The Honorable Russell Cummings, page 3 (H-120) 

other political subdivision to designate the Commission as its agent to 

receive such grants. 

Your second question involves the authority of the Texas Mass Transportation Commission to render financial assistance to other political 

bodies for planning public mass transportation systems “from appropriations made by the Legislature for that purpose. ” 

Section 8(d) of Article 4413( 34), V. T. C. S. , is: 

“The commission may render financial assistance 

in the planning of public mass transportation systems 

out of appropriations made by the Legislature for that 

purpose. ” 

Your letter cites, as one possible source of difficulty, $ 51 of Article 3 

of the Texas Constitution. This section provides: 

“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 . . . ” 

Section 52(a) of Article 3 denies the Legislature the power to authorize 

any county, city, town or other political corporation or subdivision to lend 

its credit or make such a grant of public money. 

Finally, 5 6 of Article 16, in its subsection (a), prohibits the appropriation 

of funds for private or individual purposes unless authorized by the Constitution. 

These constitutional provisions have been the subject of many questions 

and much writing. It is clear, however, that they are now interpreted to mean 

only that the Legislature must appropriate funds for public purposes. That 

an appropriation is also of assistance to a private individual or corporation 

does not render it unconstitutional if it meets the “public purpose” test. See 

for instance, State v. City of Austin, 331 S. W. 2d 737 (Tex. 1960). 

With specific reference to the use of federal funds, we would call your. 

attention to Attorney General Opinion M-782 (1971) where, after a thorough 

review of the authorities, it was held that federal grants deposited in the 

p. 581 
The Honorable Russell Cummings, page 4 (H-120) 

State Treasury might be distributed not only to public or State supported 

institutions, but also to non-profit corporations and associations “so long 

as such payment and expenditure is made in accordance with the terms 

of the grant and for the purposes of the Federal grant. Such payment is 

for a public or governmental purpose and would not violation Section 51 of 

Article III of the Constitution of Texas. ” 

From your question we assume the existence of .an appropriation “made 

by the Legislature ” for financial assistance to public subdivisions. In 

addition, the appropriation bills for the year ending August 31, 1973 (Senate 

Bill 1, 62nd Leg., 3rd Called Se.ssion) and for the biennium commencing 

September 1, 1973 (House Bill 139, 63rd Leg. ) contain provisions ($ $ 22 and 

23 of Article 5 of the 1972 appropriations and $ $ 18 and 19 of Article 5 of 

the 1973 appropriation bill) that funds received either as private bequests 

and gifts or federal grants to State agencies “are hereby appropriated to 

such agencies for the purposes for which!’ the grant, bequest or gift was 

made or similar language. 

It is our opinion therefore that appropriated funds or bequests, gifts 

or grants for the purpose of assisting political subdivisions of the State 

in planning public mass transportation systems, may be used for that 

purpose by the Commission. See Attorney General Opinion M-581 (1970); 

M-266 (1968). 

SUMMARY 

The Texas Mass Transportation Commission may 

accept and receipt for federal grants when authorized 

to do so either by legislative enactment ,of by an agency 

to whom such grant is made. Article 4413( 34), V. T. C. S., 

does not, by itself, constitute such authorization. 

The Commission may also grant financial assistance 

to political subdivisions of the State of Texas for planning 

p, 582 
The Honorable Russell Cummings, page 5 (H-120) 

public mass transportation either out of any funds which 

may be appropriated to it for that specific purpose by 

the Legislature or out of private bequests or gifts or 

federal grants made to it for that purpose. 

Very truly yours, 

Attorney General of Texas 

Opinion Committee 

p. 583