MARK WHITE 

Attorney General 

Supreme Cowl Bulldlng 

P. 0. Box 12545 

Auatln. TX. 78711.2546 

512M75-2501 

Telex 91W674-1J87 

Telewpier 512147543256 

1607 Main Sk. suita 1400 

Dsllar. TX. 752014709 

21417428944 

4524 Alberta Ave., Suite 180 

El Paso. TX. 79905-2793 

SlS553.24& 

1220 Dsllaa Ave.. Suite 202 

Houston. TX. 770026986 

71Ys5Msa5 

6W Broadway. Sulld 312 

Lubbock. TX. 79401-2479 

8o8n47.5255 

4309 N. Tenlh. Suite 6 

McAllen. TX. 75501-1665 

5121882-4547 

200 MaIn Flua, SUI10 400 

San Antonio. TX. 75505.2797 

51212254191 

. AtI Equal Opptiunltyl 

Afllrma:ive Action Employer 

The Attorney General of Texas 

Uarch 24, 1982 

Mr. Homer A. Foerster 

Executive Director 

State Purchasing and General 

services commission 

L.B.J. Building 

P. 0. Box 13047. Capitol Station 

Austin, Texas 78711 

opinion No. MJ-461 

Re: whether State Purchasing 

and General Services Commission 

may charge for copies of bid 

tabulations after they are sent 

out 

Dear Mr. Foerster: 

You have requested an opinion on vhether the State Purchasing and 

General Services Commission may charge for copies of bid tabulations 

after they are sent out pursuant to open records requirements. 

The Open Records Act allows agencies to charge for reproductions 

of public retards requested by members of the public. V.T.C.S. art. 

6252-17a. 19. Your request statea that the State Purchasing and 

General Services Commission would like to implement a computerized 

system of supplying copies of certain documents. Charges for such 

copies would be accumulated and billed to the requesting party at the 

close of each month to provide an efficient and expeditious means of 

handling the open records requests. You further state that if the 

service to a particular party proves to be voluminous and costly, a 

bid deposit will be required to cover the cost of at least three 

months service. 

The basic question which must be ansvered is whether the proposed 

system of billing after the copies have been seat out constitutes a 

violation of article III, section 50 of the Texas Constitution. 

Section 50 providea:~ 

The Legislature shall have no power to give 

or to lend, or to authorize the giving or lending. 

of the credit of the State' in aid of. ok to any 

person, association or corporation, whether 

municipal or other, or to pledge the credit of 

State in any manner whatsoever, for the payment of 

the liabilities. present or prospective, of any 

individual, association of individuals, municipal 

or other corporation whatsoever. 

p. 1605 
., 

. Mr. Homer A. Foerster - Page 2 (MU-461) 

* . 

you have advised that the state auditor has relied upon Attorney 

General Opinion R-2358 (1951). since 1951 to take audit exception to 

other state agencies’ practices similar to that which you propose. 

Attorney General Opinion R-2358 (1951) states. with regard to section 

50 of article III. that “our laws contemplate, it seems, that State 

offices or enterprises, the management of which requires the 

collection of public funds or charges, should be operated on a cash 

basis.” To defer the payments of charges for copies of public records 

by means of a monthly billing of the accumulated charges is just such 

an extension of the state’s credit which is constitutionally 

proscribed. Although the State Purchasing and General Services 

Commission might benefit from reduced administrative costs through 

utilization of the deferred payment arrangement, the potential for 

default of payment cannot be overlooked. Administrative expediency 

cannot override constitutional limitations. 

You have directed our attention to Hi%arty v. James. 453 S.W.Zd 

220 (Tex. Civ. App. - Austin 1970. no writ), as precedent for the 

deferred billing plan. In that case, the court of civil appeals held 

that an act of the legislature which required that payment in full for 

cigarette tax stamps be made within fifteen days from .the date the 

stamps were received by the distributor did not violate section 50 of 

article III of the Texas Constitution for the reason that it was not 

an extension of credit to anyone.owing a debt to the state of Texas. 

The court determined that the distributor wa8.a tax collector of a tax 

upon the transaction which was collectible from the consumer. The 

distributor was in much the same role as a retailer of items taxable 

under the Sales, Excise and Use Tax, article 20.01, Taxation-General. 

The court stated: 

The Legislature, in this instance. has made, and 

commendably we believe, an effort to partially 

relieve the burden of the purchaser of cigarette 

stamps required to pay in advance a tax which he 

does not owe by granting him fifteen days of grace 

within which .to recoup the cost of the stamps or 

the tax which they represent. 

The crucial distinction between the situation in McCarty v. James, 

supra. and the plan to defer payment which you propose is that the 

party requesting a copy of the public record pursuant to article 

6252-17a is the very party who owes the state for the service, whereas 

the person paying for cigarette stamps is merely responsible for 

collecting the tax from the consumer who owes it. 

Your proposal includes the requirement of a deposit, pursuant to 

section 11 of article 6151-17a to cover the coat of at least three 

months service from parties whose request for copies are voluminous 

and costly. Section 11 is captioned “Bond for payment of costs for 

preparation of public records or cash prepayment,‘* and provides: 

p. 1606 
. . 

‘> 

-. 

.a Mr. Homer A. Foerster - Page 3 (MW-461) 

A bond for payment of costs for the 

preparation of such public records, or a 

prepayment in cash of the anticipated costs for 

the preparation of such records, may be required 

by the head of the department or agency ,a~ a 

condition precedent to the preparation of such 

record where the record is unduly costly and its 

reproduction would cause undue hardship to the 

department or agency if the costs were not paid. 

The bond or cash prepayment provision is a measure designed to protect 

an agency from the unnecessary use of man-hours, equipment, and 

supplies in preparing public records in the event that the requesting 

party withdraws its request or refuses to pay for the records when 

they are ready. The procedure is completely in keeping with the 

purpose of article III, section 50 of the Texas Constitution. Such a 

procedure may be implemented by the State Purchasing and General 

Services Commission. 

, 

SUMMARY 

Article III. section 50 of the Texas 

Constitution, prohibits the State Purchasing and 

General Services Commission from deferring until 

the end of each month the collection of charges 

for copies of public records. The commission may 

require a deposit to cover the cost of copying 

public records pursuant to section 11 of article 

6252-17a. V.T.C.S. 

: 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

Attorney General of Texas 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Robert Gauss 

Rick Gilpin 

p. 1607