Honorable Preston

Governor of Texas Capitol Building

~^ Smith OpinionNo,M-782

Re: Questionsrelative to disAustin, Texas 

### 78711**AUSTIN. TEXAS**  **78711**

February4, 1971

bursement of Pedera.1funds granted the ,Stat,e pursuant

Dear Qovernor Smith: to the OmnibusCrime ~Control and Safe StreetsAct of 

### 1968.

,Yourrequest for an opinion asks the follorPng questions:

"(1) The Texas Criminal ,JusticeC~ouncll re-’ spectfullyre,quests an opinion as to whether or not the State Comptroller ,cani,ssue a warrant payable to a non-profitagency, such as the VocationalGuidance ,Semice, when suchwar%??& has been requeste,d by the Texas Criminal Justice Council in the normal ~~aarse of their 'business to be ,drawnon federal funds deposItedwith the State Treasurerand thepayment of such funds is to bemad:efor the purposes of a dls:cretlo~nary grant of Federalmonies and by authority of and in compliancewith P.L. 

### 90-'351, Title I,Omnibus Crime Control and Safe Streets Act of 

### 1968and to a.cc,ompllsh

the objectives of the 197,O State Plan as approved by the Law EnforcementAssistance Administration.

"(2) The Texas Criminal Justice Counc1l,respectfullyremquests an .oplnionas to whether or not the State Comptroller can issue a warrant payable to an educational institution, to-wit:
a non-state supporteduniversity, college or junior college eitherwithin or without the State of Texas, such as SouthernMethodist University, when the warrant is requested by 'theTexas Criminal Justice Council In the normal course of busln~ess to be drawn on Federal funds depositedwith the State Treasurer and such payment is to be made to the educational institution for educationaland/or

-3807-Hon. Preston Smith,page2 (M-782)

training services to be rendered in accordancewith the terms of the grant application approved by the Texas Criminal JuStIce Council and for the purposes of the Federal grant and by authority of and In compliancewith P.L. 90-351,Title I, Omnibus Crime Control and Safe StreetsAct of 1968 and to accomplish the objectives of the State Plan as approved by the Law EnforcementAssistanceAdminlstratlon.


### “(3)The Texas CriminalJustice Council re- .spectfullyrequests an opinion as to whether or not the State Comptroller can issue a warrant payable to a non-profit corporation, such as the Texas District and CountyAttorneys EducationalFoundation, when the warrant Is requested by the Texas Criminal Justice Council In the normal course of their business to be drawn on Federal,fundsdeposited with the State Treasurer and suchpayment to the non-profitcorporation Is to be made for educational and/or training servicesrendered in accardancewith the terms,of the grant application approved by the Texas CriminalJus,tice Council and for the purposes of the,Federalgrant and by authority of and in compliancewith P.L. 90-351, Title I, Omnibus Crime Control and Safe Streets Act of 1968 and to accomplish the objectives of the 197~0State Plan as approved by the Law EnforcementAssistanceAdministration.

"('I) The Texas Criminal Justice Council respectfullyrequests an opinion as to whether or not the State Comptroller can issue a warrant payable to an Individual or individuals,who are employees
or elected officials in the criminal justice system,
as reimbursement for travel, subsistence,tuition, fees, costs of materials used, etc., previously lncurred for educationaland/or trainingpurposes when suchwarrant is requested by the Texas Criminal Justice Council In the normal course of their business to be drawn on Federal funds deposited with the State Treasurer and such payment is to be made In accordancewith the terms of the grant application approved by the Texas CriminalJustice Council and for the purposes of the Federal grant and by authority of and In compliancewith P.L. 90-351,Title I, Omnib us Crime Control and Safe

-3808-Hon. Preston Smith,page 3, (M-782) .'

StreetsAct of 1968 and to accomplish the objectives of the 1970 State Plan as approved by the Law EnforcementAssistanceAdministration."

The Texas Criminal Justice Council Is a planning agency inthe Governor's office, created by an Executive, Order dated October 18, 1968, chargedwith the administrationand dlsbursement of Federal fundsmade available through them Law~Enforcement AssistanceAdmlnlstration,, provided for by the provisions of P.L. 90-351,Title I (OmnibusCrime Control and Safe StreetsAct of 1968). The Texas Criminal Justice Council Is financedby funds appropriated to the Governor In Item 11 of the currentQeneral AppropriationsAct to the Oovernor's office which reads as follows:

"For the Years Ending August 31, August 31, 1970 1971

"11. To provide from the General Revenue Fund for specialplanning projects and studies includingbut not limited to Comprehensive Health Planning,, Texas CriminalJustice Council, Coastal Resources Study, State EconomicStudy, Manpower Development, and Governor's Committee on Human Relations, Including salaries of exempt and clas'slfled poaltions,professional fees and services,part-tlme and,seasonalhelp, travel, consumable supplies and materials, current and recurring operating expenses, capital outlay,planning grants, and all other actlvlties for whkh no other provisions are made. $ 585,000 $ 644,728 -&U.B."

Section 25 of ArticleV of the current GeneralAppropriations Act provides In part as follows:

-3809-Hon. Preston Smith, paBe 4 (M-782)

."A11funds received from the United States Governmentby the agencies of the State named In this Act are hereby appropriated to such agencies for the purposes for which the Federal grant, al-‘ location, aid, or payment was made, subject to the provisions of this Act

. . . ."

Each disbursement contemplatedby your four questions Is In compliancewith planning grant applicationswhich have been approved and is for the purposes for which the Federal grant is made. Therefore the Comptrollermay Issue such warrants unless prevented by some constitutionalor statutory restriction.

In view of the provisions of Section 25 of ArticleV of the current General AppropriationsAct, above quoted, Federal grants received by the Texas Criminal Justice Council are deposited in the State Treasury to be expended for the purposes for which the grant was made.

Section 6 of ArticleVIII of the Constitutionof Texas DrOVldeS that no money shallbe drawn from the Treasurybut in pursuance to specific-appropriationsmade by law. 480 (1898). See Pickle v. Finley, 91 Tex. 484, 44 S.W. also Si Steele, 57 Tex. 200 (1882);Linden v. Finley,.92 Tex. 451, S.W. 578 (1899).

In the instant case the moneys in question have been appropriated for the purposes of the Federal grant and such appropriation authorizes the withdrawal of the money from the Treasury for suchpurposes. The only question remaining Is whether the Issuance of a warrant payable to a nonprofit agency such as the Vocational Guidance Service, a nonprofit United Fund agency In Houston, Texas, providing comprehensiverehabilitative services to adjudicated delinquentboys and preventive services for other boys with a potential for delinquency,violates the provisions of Section 51 of Article III of the Constitutionof Texas,prohibiting the "making of any grant of publicmoneys to any Individual, association of Individuals,municipal or other corporationswhatsoever

. . ." It is well settled that the purpose of this section Is to prevent the application of public funds to private purposes. State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960);City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 818 (1923);Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130 (1931);Byrd v. City of Dallas, II8 Tex. 28, 6 S.W.2d 738 (1928).

A similar question regarding disbursement of Federal

-3810-Hon. Preston Smith,page 5~ (M-.782)

funds depositedwith the State Treasury to'colleges and universities for teacher trainingwas involved In Attorney General's Opinion c-474 (1965). It was there held that payments to colleges and universitieswhich provided teacher trainingunder a State plan approved by the Texas EducationAgency and the United States Governmentwere valid and that such payments would not violate Section 51 of Article III of the Constitution of Texas. After reviewing authorities It w&s held:

"Thus it appears that your Inquiry resolves Itself Into a question of whether the, payment of these funds to enable teachers to obtain professional training in areas of mental retardation, emotional dlsturbance,~ speech and hearing Impairment,whereby,they will be better trained .to.teachsuch exceptional children, Is logltially

within themeaning of applying 'public funds to a private purpose.' We think that It Is not."

Likewise it was held In Attorney Qeneral'~s Opinion V-1067 (1950):

"In determiningwhether an expendlture,of public monies constitutes a gift or a grant ,of public monies, 'theprimary question Is whether the funds are used for a "public" or "private" purpose. The benefit of the State from an expenditure for a "publicpurpose" is in the nature of consideration and the funds expended are therefore not a,alft even though private DerSOns are benefited therefrom.' Alameha County v. Jan&en, 16 Cal.2d 276, 106 P.2d 11, 130 A.L.R. 1141 Trvub)."

In view of the foregoingwe are of the opinion that the Issuance and payment of warrants outlined In your four questions do not violate Section 51 of Article III of the Constitutionof Texas. You are accordingly advised that paymentsmay not only be made to public or state supported institutions,but also to nonprofit organizations, to non-state supporteduniversities, colleges and junior colleges, as well as to Individualswho are employees or elected officials In the criminal justice system, provided the payment and expenditure of such warrants is for the purpose for which the Federal grant Is made.'

Your request as well as the accompanying documents outlinematerial facts showing such payment Is to be made in

-3811-. . .

Hon. Preston Smith, page 6 (M-782)

accordancewith the terms of each grant application and for the purposes of the Federal grant and by authority of and In compliance with the Omnibus Crime Control and Safe StreetsAct of 1968. Therefore, each question Is answered In the affirmative.

SUMMARY

Pursuant to the provisions of Section 25 of Article V of House Bill 2, Acts 61st Leg. 1969,~2nd C.S., disbursement of Federal grants deposited In the State Treasurypursuant to the provisions of P.L. 90-351,Title I, Omnibus Crime Control and Safe StreetsAct of 1968, can be made by issuance of warrants by the Comptroller of PublicAccounts payable not only to public or state supported lnstitutlons,but also to nonprofit corporations and associations,non-state supported educational Institutions,and Individualswho are employees
or elected officials In the criminal justice system so long as such payment and expenditure ismade In accordancewith the terms of the grant application and for the purposes of the Federal grant. Such payment Is for a public or governmental purpose and would not viol e Section 51 of Article III of the Constitut of Texas.

General of Texas
Prepared by John Reeves Assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E. Allen, Co-Chairman Ben Harrison Llnward Shivers Austin Bray, Jr. James Broadhurst

-3812"Hon. Preston Smith,page 7 (M-782)

MEADE F. GRIFFIN Staff Legal Assistant

ALFRED WALKER ExecutiveAssistant

NOLA WHITE First Assistant

-3813-