The Attorney General of Texas 

May 5, 1983 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 76711. 2546 

51214752501 

Telex 9101674.1367 

Telecopier 5121475.0266 

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Dallas, TX. 75201.4709 

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El Paso. TX. 79905-2793 

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P 

120 Dallas Ave., suite 202 

Houston. TX. 77002.6966 

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Lubbock. TX. 79401-3479 

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McAllen. TX. 76501-1665 

5121662.4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 76205.2797 

5121225-4191 

An Equal Opportunityi 

Affirmative Action Employer 

Honorable Mary Polk 

Chairman 

Comittee on Human Services 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-30 

Re: Constitutionality of House 

Bill No. 1002 relating to a 

surcharge on telephone bills to 

Pay for telecommunication 

devices for the deaf 

Dear Representative Polk: 

You have 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. . . to provide telecomunications devices to 

eligible individuals." Sec. 82.002. A "telecomnunications device" 

under the bill is: 

a device used with a basic telephone unit to 

provide a means by which deaf, hearing impaired, 

or speech impaired individuals can effectively 

cowmunicate. 

Sec. 82.001(6). 

A deaf, hearing impaired, or speech impaired person who desires 

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. 

House Bill No. 1002 also 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 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 telephone services. SW. 82.006. The 

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Honorable Mary Polk - Page 2 (JM-30) 

telephone utility is required to transfer to the board the funds 

collected pursuant to the surcharge. The board is then empowered to 

“award the purchase contract [for the telecommunications devices] to 

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 is constitutional. 

Article III, section 51, of the Texas Constitution provides: 

sec. 51. Grants of public money prohibited; 

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 to indigent and disabled Confederate 

soldiers and sailors under such regulations and 

limitations as may be deemed by the Legislature as 

expedient, and to their widows in indigent 

circumstances under such regulations and 

limitations as may be deemed by the Legislature 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 in programs financed with private or 

federal funds for rehabilitation of 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 of 

all public money shall be published annually, in 

such manner as shall be prescribed by law. 

(b) State agencies charged with the 

responsibility of providing services to those who 

are blind, crippled, or otherwise physically or 

mentally handicapped may accept money from private 

p. 129 
Honorable Mary Polk - Page 3 (JM-30) 

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 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, 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 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 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. 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 for 

which the state agencies may expend the money. 

Money accepted under this subsection for a purpose 

prohibited by the Legislature shall be returned to 

the entity that gave the money. 

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 

p. 130 
Honorable Mary Polk - Page 4 (JM-30) 

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 on 

behalf of 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 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 51 and article XVI, section 6 of 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, a program of the 

type you suggest could be implemented by the State 

of Texas. Otherwise, a constitutional amendment 

would be required. 

We believe that this reasoning is equally applicable to the 

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, 

p. 131 
. :, 

Honorable Mary Polk - Page 5 (JM-30) 

the state. In our opinion, such a program clearly contravenes article 

III, section 51, and article XVI, section 6, of 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 for the deaf, hearing 

impaired, and speech impaired, to be financed by a 

surcharge on telephone bills, is violative of 

article III, section 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 

p. 132