EENEY GENE TEXAS

December 4, 1969

Hon. J. Pat O'Keefe Executive Director OpinionNo, M-531 Texas Fine Arts Commission Re: Whether funds appropriated 825 Brown Building in Item 7 of the General Austin, Texas 78701 AppropriationsAct, 61st Legislature,R.S., 1969,

Dear Mr. O'Keefe: may be expended by the Fine Arts Commission for the purposes stated to local communities in the State of Texas. Your request for an opinion reads, in part, as follows: "TheTexas Fine Arts Commission is engaged in providing a touring program to benefit citizens of all ages in communities throughout the State of Texas. By sharing the costs in providing quality cultural programs (traditional,contemporary and classical),we intend to crystalize local interest in and support for the various creative arts and to bring to communitiesand neighborhoods that would not otherwisebe able to afford such programsmusical ensembles, choirs and other co~ncert groups, drama and dance theatre groups and other similarperformingunits and visual art displays. "In order to carry out this program, the Legislaturehas appropriated $40,000per year for the biennium endingAugust 31, 1971, to the Fine Arts Commission. The Comptroller of Public Accounts has questionedwhether this money may be expended for such purpose in view of the pro- .visionsof Sections 50 and 51 of Article III of the Constitution of Texas. I,therefore, request an opinion on the following question: 'May funds appropriated in Item 7 of the appropriations to the Fine Arts Commission for the

-2528-Hon. J. Pat O'Keefe, page 2 (M-531)

biennium ending August 31, 1971,be expended by the Fine Arts Commission for the purpose as outlinedabove to local communities in the State of Texas?" The Texas Fine Arts Commissionwas createdby the provisions of Article 6144g,Vernon's Civil Statutes. Section 3 provides the duties and responsibilities of the Fine Arts Commission and reads, in part, as follows:

"Sec. 3. The duties and responsibilities of the Commission shallbe: "a. To foster the development of a receptive climate for the fine arts that will culturally enrich and benefit the citizens of Texas in their daily lives, to make Texas visits and vacationsall themore appealing to the world and to attract toTexas residency additional outstanding creators in the field of fine arts through appropriateprograms of publicityand education,and to direct other activities such as the sponsorshipof art lectures and exhibitionsand central compilation and dissemination of informationon the progress of the fine arts

in Texas." Section 5 provides that "Appropriationsmay be made by the Legislature to the Commission to carry out the purposes of this Act."

House Bill 2, Acts of the 61st Legislature, 2nd C.S., 1969 (GeneralAppropriationsAct for the biennium endingAugust 31, 1971), contains the followingappropriation to the Fine Arts Commission: "For the Years Ending August 31, August 31, 1970 1971 "7
. Touring Projects $40,000 $40,000" The rider relative to the expenditure of Item 7, supra, provides: "The expenditure of moneys appropriatedby Item 7 on any project shallbe conditionedupon the funds being matched by private or Federal

-2529-.

Hon. J. Pat O'Keefe,page 3 (M-531)

funds. An affidavit signedby the Executive Director of this Commission that thematching sums have been expended, or have beenmade available and will be expended shall be considered suitable evidenceby the Comptroller of compliance with this provision. It is our opinion that Subdivision (a) of Section 3 and Section 5 of Article 6144g, constitutepre-existing,law within themeaning of Section 44 of Article III of the Co,nstitution of Texas for the appropriation contained in Item 7 to the Fine Arts Commission. Consequently, that appropriationmay be expended for the purposes outlined in your request,unless prohibitedby Sections 50 and 51 of Article III of the Constitution of Texas. Section 50 of Article III of the Constitutionof Texas provides as follows:

"Sec. 50. The Legislature shallhave no power to give or to lend, or to authorize the giving or lending, of the credit of the State in aid of, or to any person, association or corporation,whethermunicipal or other, or to pledge the credit of the State in any manner whatsoever, for the payment of the liabilities, present or prospective, of any individual,association of individuals,municipal or other corporationwhatsoever. The pertinentprovisions of Section 51 of Article III of the Constitution of Texas provide:

"Sec. 51. The Legislature shallhave no power to make any grant or authorize themaking of any grant of publicmoneys to any individual, association of individuals,mur$cipal or other corporationswhatsoever;
. . . A grant of State funds for governmentaluse or purposes as distinguished from private purposes is not prohibitedby Sections 50 or 51 of Article III of the Constitution of Texas or anv other provision of our State Constitution. " State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960);Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761 (1920);Road Distric;No. 4, m County v. Allreg, 123 Tex. 77, 68 S.W.2d 164 ( 9 4); Jefferson County <~ Board of Count and DistrictRoad Indebtedness, 143Tex. 99 18 9 8 ( 4')y City of Aransas Pass v.Keeling, 112 Tei. 3~9~'%?S.~. 8:: 71423).

-2530-. .

Hon. J. Pat O'Keefe,page 4 (M-531)

Applying the principle announced in the above cited cases to the facts presented in your request, we have concluded that the expenditure of State funds for the purpose of sharing costs in providing culturalprograms to various communitiesand neighborhoods in the State is for a governmentalpurpose rather than for a privatepurpose. Article 6144g specifically states that it is the duty and responsibility of the Fine Arts Commission "to foster the development of a receptive climate for the fine arts that will culturally enrich and benefit the citizens of Texas in their daily lives."

You state in your request that the proposed expenditure of Item 7 is for the purpose to "crystalizelocal interest in and support for the various creativearts."

It is, therefore, our opinion that the expenditure of Item 7 to the Fine Arts Commissi$n for the biennium ending August 31, 1971, is for the purpose of the development of a receptive climate for the fine arts that will culturally enrich and benefit the citizens of Texas in their daily lives" and is thus for a governmentalpurpose as distinguished from a privatepurpose.

You are accordinglyadvised that Item 7 of the appropriation to the Fine Arts Commission for the biennium ending August 31, 1971,may be expended for the purposesdescribed in your request. SUMMARY

Funds appropriated in Item 7 of priation to the Fine Arts Commission biennium ending August 31, 1971,may for the purpose of sharing the costs culturalprograms to communitiesand in the State of Texas. /Q the approfor the be expended in providing neighborhoods

Preparedby John Reeves Assistant Attorney General

-2531-. . .



### Ron.J. PatO'Keefe,page5 (IU-a-531)

APPROVED: OPINIONCOMMITTEE KernsTaylor,Chairman George 

### Kelton,Vlce-Chalrman Jack Sparks AlfredWalker RexWhite JayFloyd MEADEF. GRIFFIN StaffLegalAssistant NOLAWRITE FirstAssistant

-2532-