MARK WHITE Attorney General

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.AtIEqualOpptiunltyl Afllrma:ive ActionEmployer 

# The Attorney General ofTexas

Uarch 24, 1982

Mr. **Homer**A. Foerster Executive Director State Purchasing andGeneral services commission L.B.J. Building P. 0. Box 13047. Capitol Station Austin, Texas 78711 opinion No. MJ-461
Re: whether State Purchasing andGeneral Services Commission may charge 

### for copies of bid tabulations after they are sent out DearMr. Foerster:
Youhave requested anopinion onvhether theState Purchasing and General Services Commission maycharge for copies of bid tabulations after they are sent out pursuant to open records requirements. TheOpenRecords 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 

### forsuch copies would be accumulated andbilled to the requesting party at the close of each month to provide an efficient andexpeditious meansof 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. Thebasic question which mustbe 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 50providea:~

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 mannerwhatsoever, for the paymentof the liabilities. present or prospective, of any individual, association of individuals, municipal
or other corporation whatsoever.

p. 1605.,

. Mr. HomerA. 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.” Todefer the payments of charges for copies of public records by meansof amonthly 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. Youhave 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 anact of the legislature which required that payment in full for cigarette tax stamps be madewithin fifteen days from .the date the stamps were received by the distributor did not violate section 50of 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. Thecourt determined that the distributor wa8.a tax collector of atax upon the transaction which was collectible from the consumer. The distributor was in muchthe same role as a retailer of 

### itemstaxable under the Sales, Excise and UseTax, article 20.01, Taxation-General. Thecourt stated:

TheLegislature, 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 oweby granting himfifteen 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 thevery party whoowes the state for the service, whereas the person paying for cigarette stamps is merely responsible for collecting the tax from the consumerwhoowes 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 

### ofcosts**for** preparation of public records or cash prepayment,‘* andprovides:

p. 1606**. .** 

**‘ >**  **-. .a**  Mr.HomerA. 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, maybe 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. Thebond or cash prepayment provision is ameasure 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 50of the Texas Constitution. Sucha 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. GRAYIII Executive Assistant Attorney General Prepared by Rick Gilpin Assistant Attorney General
APPROVED: OPINIONCOMMITTEE
SusanL. Garrison, Chairman Robert Gauss Rick Gilpin

p. 1607