# TheAttorney GeneralofTexas

May5, 1983 JIM MATTOX Attorney General

Supreme Court Building P.0. BOX12546 Austin. TX. 76711. 2546 51214752501 Telex 9101674.1367 Telecopier 5121475.0266

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An Equal Opportunityi Affirmative Action Employer Honorable MaryPolk Chairman Comittee onHumanServices Texas House of Representatives P. 0. Box2910 Austin, Texas 78769 Opinion No.JM-30

Re: Constitutionality ofHouse Bill No. 1002 relating to a surcharge ontelephone bills to Pay for telecommunication devices for the deaf

Dear Representative Polk:

Youhave requested our opinion regarding the constitutionality of House Bill No. 1002, presently pending in the Sixty-eighth Legislature. The bill establishes a "telecommunications device placement board," section 82.003, within the Texas Commission for the Deaf, whose function it is to administer the "telecommunications device placement program.

. .toprovide telecomunications devices to eligible individuals." Sec. 82.002. A "telecomnunications device" under thebill is:

a device used with a basic telephone unit to provide ameans bywhich deaf, hearing impaired,
or speech impaired individuals can effectively cowmunicate.

Sec. 82.001(6).

Adeaf, hearing impaired, or speech impaired person whodesires to participate in the program is required to apply to the Texas Commission for the Deaf, which is empowered to issue eligibility certificates to qualified individuals. The board is directed to distribute telecommunications devices to "telephone distribution centers used by utilities providing telephone services," section 82.009, which in turn distribute them to individuals who present eligibility certificates.

HouseBill No. 1002also establishes a"telecommunications device placement fund" as a "special fund outside the state treasury." The fund: "is created through the imposition and collection of a surcharge onmonthly telephone bills," in anamount to be determined by the board, but not to exceed 25 cents. This surcharge would be payable by each consumer of telephone services. SW. 82.006. The

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telephone utility is required to transfer to the board the funds collected pursuant to the surcharge. Theboard is then empowered to

“award the purchase contract [for the telecommunications devices] to the bidder whoconforms 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 is constitutional. Article III, section 51, of the Texas Constitution provides:

sec. 51. Grants of public money prohibited; exceptions.

TheLegislature shall have nopower tomakeany 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 to indigent and disabled Confederate soldiers and sailors under such regulations and limitations asmaybedeemedbytheLegislature as expedient, and to their widows in indigent circumstances under such regulations and limitations asmaybedeemedbytheLegislature as expedient; provided that the provisions of the 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 for private purposes; state participation inprograms financed with private or federal funds for rehabilitation of blind, crippled, physically or mentally Handicapped Persons.
(a) Noappropriation for private or individual purposes shall bemade, unless authorized by this Constitution. A regular statement, under oath, andanaccount of the receipts andexpenditures of all public money shall be published annually, in such manneras shall beprescribed bylaw.
(b) State agencies charged with the responsibility of providing services to those who
are blind, crippled, or otherwise physically or mentally handicapped mayaccept moneyfromprivate

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or federal sources, designated by the private or federal source as money to be used in and establishing and -Wppi*g facilities for assisting those who are blind, 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 andtreatment of the handicapped. Moneyaccepted under this subsection is state money. State agencies mayspend 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, in establishing and -wiwi*g facilities for assisting those who are blind, 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 cars or treatment of the handicapped.

The state agencies maydeposit 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 the purpose for which it was given. Notwithstanding any other provision of this Constitution, the state agencies may expend money accepted under this subsection without the necessity of an appropriation, unless the Legislature, by law, requires that the money be expended only on appropriation. TheLegislature mayprohibit state agencies from accepting money under this subsection or may regulate the amount of money accepted, the way the acceptance and expenditure of the moneyis administered, andthe purposes for which the state agencies may expend the money. Moneyaccepted under this subsection for apurpose prohibited bythe Legislature shall bereturned to the entity that gave themoney.
This subsection does not prohibit state agencies authorized to render services to the handicapped from contracting with privately-owned
or local facilities for necessary and essential

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services, subject to such conditions, standards, andprocedures asmaybeprescribed bylaw.

InAttorney General Opinion MW-22(1979). this office said that a program to provide assistance for payment of utility costs for needy aged individuals wasviolative of article III, section 51, andarticle XVI, section 6, of the Texas Constitution. Theopinion declared:

Although the prohibitions of article III, section 51 and article XVI, section 6are 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 on behalf of individuals, paid solely out of state funds, donot serve aproper public purpose. See, *, Attorney General Opinion Nos. H-602 (1975) (school district maynot purchase personal injury protection or uninsured motorist coverage); H-520 (1975) (county maynot contribute public funds to the construction of a facility to be used and operated by a private corporation); C-523 (1965) (state university maynot pay onhonorarium to an individual making a commencement address); V-809 (1949) (public funds maynot beexpended onbehalf of victims of spastic or epileptic fits); O-2578 (1940) (public welfare grants without regard to categories enumerated under article III, section 51-a are invalid). It is therefore our opinion that Senate Bill No. 628 is invalid under article III, section 51andarticle XVI, section 6of the Texas Constitution.

The opinion noted also that article III, section 51-a, of the constitution:permits certain assistance programs when federal

matching funds are available. If appropriate federal legislation were enacted, aprogram of the type you suggest could be implemented bythe State of Texas. Otherwise, a constitutional amendment would berequired.

Webelieve that this reasoning is equally applicable to the program which House Bill No. 1002 proposes to establish, in that it constitutes adirect grant of valuable property to needy individuals, paid solely out of funds collected in the name, and for the use of,

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the state. Inour opinion, such aprogram clearly contravenes article III, section 51, and article XVI, section 6, of the Texas Constitution. Inview of this determination, weneed not address your other questions.

SUMMARY

House Bill No. 1002, which proposes toprovide telecormnunications devices for the deaf, hearing impaired, andspeech impaired, tobe financed bya surcharge on telephone bills, is violative of article III, section 51, andarticle XVI, section 6, of the Texas Constitution. Very truly you

J-k .

JIM MATTOX Attorney General of Texas

TOMGREEN First Assistant Attorney General

DAVIDR. RICHARDS Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General

APPROVED: OPINIONCOMMITTEE

SusanL. Garrison, Chairman JonBible David Brooks Rick Gilpin JimMoellinger NancySutton Bruce Youngblood

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