### Arrs-.TEXAR '78T13 October 4, 1973 The Honorable Russell Cummings Opinion No. H- 120 Executive Director, Texas Mass Transportation Commission Re: Construction of Mass 1013San Jacinto Transportation Commission Austin, Texas 78701 Act, Article 4413(34), V. T. C. S. Dear Mr. Cummings: You have requested the opinion ofthis office on two questions related
. to $8ofArticle 4413(34), Vernon’s Texas Civil Statutes, the Texas Mass Transportation Commission Act adopted in 1969. Your two questions are: ’

1. “Does the enactment ofthis legislation (in 1969) constitute being ‘authorized by the State, ’and are we therefore able to ‘accept and receipt’ for federal grants? Ifnot, 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 ofthe Texas Mass Transportation Conimission. Section 8(a) provides that its purposes shall be to encourage and assist inthe development ofpublic mass transportation and to encourage the establishment of rapid transit and other transportation media. Other subsections of $8define the authority ofthe Commission. Subsection h, inpart, 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

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state or subdivision, for the acquisition, construction, improvement, maintenance or operation ofpublic mass transportation facilities
. . . The state or the governing body of amunicipality 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 ofpublic mass transportation facilities. ” (Emphasis added) The State is the people and all political power ofthe State is inherent inthem. 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, inturn, 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 inmind we would answer your first question that the enactment ofthe 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 ofthe Legislature as, for example, Article 5521b-22d, V. T. C. S., inwhich 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 apolitical subdivision or an agency ofthe State which inturn has legislative authority to receive such grants. To the second part ofyour first quesi:ion we answer that, inour opinion, unless specificall~y authorized to do so by some statute, the Governor does not have the authority to extend authorization on behalf ofthe State. Article 4413(34)(h) specifically authorizes the governing body of a municipality or

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other political subdivision to designate the Commission as its agent to receive such grants. Your second question involves the authority ofthe 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) ofArticle 4413(34), V. T. C. S., is:

“The commission may render financial assistance inthe planning ofpublic mass transportation systems out of appropriations made by the Legislature for that purpose. ” Your letter cites, as one possible source of difficulty, $51ofArticle 3 ofthe Texas Constitution. This section provides:

“The Legislature shall have no power to make any grant or authorize the making of any grant ofpublic moneys to any individual, association of individuals, municipal or other corporations whatsoever
. . . ” Section 52(a) ofArticle 3denies 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 ofpublic money. Finally, 56ofArticle 16, in its subsection (a), prohibits the appropriation offunds for private or individual purposes unless authorized by the Constitution. These constitutional provisions have been the subject ofmany 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 aprivate individual or corporation does not render itunconstitutional if itmeets the “public purpose” test. See for instance, State v. City ofAustin, 331S.W. 2d 737 (Tex. 1960). With specific reference to the use offederal funds, we would call your. attention to Attorney General Opinion M-782 (1971) where, after athorough review ofthe authorities, itwas held that federal grants deposited inthe

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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 ofthe grant and for the purposes ofthe Federal grant. Such payment is for apublic or governmental purpose andwould not violation Section 51of Article IIIofthe Constitution of Texas. ” From your question we assume the existence of.anappropriation “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 ($$ 22 and 23 ofArticle 5ofthe 1972 appropriations and $$ 18and 19ofArticle 5of 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. Itis our opinion therefore that appropriated funds or bequests, gifts or grants for the purpose of assisting political subdivisions ofthe State inplanning 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 ,ofby an agency towhom 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 topolitical subdivisions ofthe State of Texas for planning

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public mass transportation either out of any funds which may be appropriated to it for that specific purpose by the Legislature or out ofprivate bequests or gifts or federal grants made to itfor that purpose. Very truly yours,

Attorney General ofTexas

Opinion Committee

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