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### THE ATTCBIRNEY GENERAL OI’ TEXAS

November 11, 1986

HonorableBob Bullock OpinionNo. ~~-575 Comptrollerof PublicAccounts L.B.J. StateOffice Building Re: Whether "local funds" mainAustin,Texas 78774 tainedby collegesand universities are subject to appropriation and related questions Dear Mr. Bullock: You ask several que:itionsconcerning local funds maintained outside the treasuryby co:.l.eges and universities and state agencies. You give the.following exanples of funds deposited in local accounts under section 51.008of the EducationCode or theAppropriationsAct:

1. Funds from auxiliary enterprises, such as athletic activities,book storesand cafeterias; 2. constitutional college building amendment funds; 3. amOuntS derived from non-instructional services, s. soil testing by Texas A &M University; 4. endowment funds; 5. federal :iunds for student loans and research; 6. gifts and donations: 7. fees for such items as dormitories,student newspapers, and studenthealth centers; 8. funds maintained in local bank accounts which are not required to be placed in the treasury by eit'wr the Funds Reform Act, the EducationCode, or other specific statutes. You ask whether the following information retained by state agencies and institutionself higher education on these local funds is subject to the Open Records Act:

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1. Information concerning gifts and donations to colleges and rtniversities, such as the name of the donor, the amunt, any restrictionsplaced on the donation,ar.dthedispositionof the donation; 2. accounting records and supporting documentation concerning the source and disposition of receipts from amiliary enterprises operated by colleges and unimrsities and of all other local fundsmaintainedby colleges and universities; 3. accounting records and supporting documentation concernin public and private grants to colleges and universities; 4. accounting records and supporting documentation concerning public and private grants to state agencies. You ask a broad que:itionabout several information,and our answexmust necessarilybe RecordsAct applies to general categories of generalized. The Open
[a]11 information collected, assembled, or maintained by governmntal bodies pursuant to law or ordinanceor in connectionwith the transactionof officialbusiness.
. . . V.T.C.S. art. 6252-17a, 6:(a). State colleges and universities and state agencies are governmntal bodies subject to the Open Records Act. See, e.g., Texas Industrial Accident Board v. Industrial Foundation of the South,-540 S.W.Zd 668 (Tex. 1976); Hubert v. Harte-HanksTexasNewspaper_s, Inc., 652 S.W.2d 546 (Tex.App. - Austin 1983, writ ref'd n.r.e.); Attorney General Opinions H-436, H-242 (1974). The Open Recordr;Act as a general rule would authorize members of the public to request access to the records of state collegesand universities i.nd state agencies concerninggifts, grants, and local funds. See, e.g:, Open Records Decision Nos. 220 (1978) (records of bank account, opened in name of city); 121 (1976) (financial records of University of Texas Division of Extension). When a member of the public requests particular records, the governmental body would be entitled to raise exceptions to public disclosure set out in sect:ion3(a) of the Open Records Act; whether particular records would he:excepted from public disclosure must be determinedon a case-by-car:e basis under theprocedures set out in the Open Records Act. See, e.&, Open Records Decision No. 121 (1976) (financial records of un:%ersity extension division excepted from public disclosureby section 3(a)(3)of article 6252-17a,V.T.C.S.). You next ask the following questions about the appropriation of local funds and gift and grant funds:

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1. Are local funds maintained by universities and colleges sti,ject to appropriation by the legislature? 2. Are grant);and gifts received by state agencies and maintained in local accounts subject to appropriation? Your questions do not focus on particular funds, gifts, or grants. Nor do they inquire about the construction of particular statutes. We can provide generalizedanswers to your questions,with the qualificationthat the statutes,AppropriationAct provisions,and constitutionalprovisionsapplicable toparticular fundsmight require a different result in some cases. See, e.g., Tex. Comet. art. XVI, 56;AttorneyGeneralOpinims M-944 (1971);M-91 (1967). Prior opinions of this office have determined that local funds maintained by universities and colleges are subject to appropriation by the legislature. See:, e.g., -- Attorney General Opinions B-456 (1974);V-1427 (1952);V-7:.5(1948). See generallyAttorney General Opinion MW-576 (1982). The following Education Code provisions apply to collegeand university l#,cal funds: Section 51.001. Institutionstowhich Applicable Subject to Section 51.008 of this code, the provisions of this sulchapterapply to: (1) each inst:itutionand branch of The University of Texas S,ystem; (2) each institution,agency, and serviceof The TexasA &M University System; (3) TexasA & :C

University; (4) Texas Tecl University; (5) East Texas StateUniversity; (6) North Texas StateUniversity; (7) SamHouston StateUniversity; (8) StephenF. Austin StateUniversity; (9) SouthwestTexas StateUniversity; (10) Sul Ross Wate University; (11) West Texas StateUniversity;

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(12) Texas Eas,:ern University; and (13) each pub:t:ic junior college to the extent possible. 451.002. Funds Subject to Control (a) The goveming board of each institution listed in Section 51.001 of this code my retain control of the following sums of money collected at the institution, tiubjectto Section 51.008 of this code. (1) student f,zes of all kinds; (2) charges f')r use of rooms and dormitories; (3) receipts Erommeals, cafes, and cafeterias; (4) fees on deposit refundable to students under certain conditions; (5) receipts E~com schoolathletic activities; (6) income from student publications and other studentactivities; (7) receipts from the sale of publication products andmisceLlaneous suppliesand equipment; (8) students' voluntary deposits of money for safekeeping; (9) all other fees and local institutional income of a strictly localnature arising out of and by virtue of the educational activities, research, or demonstrations carriedon by the institution;and (10) donations and gifts to the institution.

. . . . 851.006. Funds not to be Used to Increase Salaries No part of ans'of the funds listed in Section 51.002 of this code shall ever be used to increase any salary beyond the sum fixed by the legislature in the general appropriations act, and the provisions of this subchapter are subordinate to the

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general appropriat,$ns act for the support of each institution. 151.008. Certain Receipts to be Deposited in StateTreasury (a) The govern:tng board of every state institution of higher education is directed to designate specialdepositoryksanks,subject to theapproval of the state treasurer, for the purpose of receiving and keeping certain receipts of the institution separate and apart from funds now deposited in tie state treasury. The receipts here referred to are described in Subsection (b)of this section.
. . . (b) The govern:ing board of every state institution of higher edu:ation shall deposit in the state treasury all cash receipts accruing to any college or university unde:rits control that may be derived from all sources sxcept auxiliary enterprises,noninstructional ser+es, agency, designated, and restricted funds, endowment and other gift funds, student loan funzs, and Constitutional College BuildingAmendmentfunds. . . . 554.004. Retent:ion andUse of Funds All tuition, local funds, and fees collected by an institutionof?zgher education. shallbe retained and expended by t'1sinstitution and accounted for annually as providzd in the general appropriations act. - (Emphasisad&d). Educ. Code §§51.001, 51.002!, 51.006, 51.008, 54.004. Pursuant to section 51,006 of the EducationCode, the local fur.ds described in section 51.002 are subject to appropriationby the legislature. SeeAttorney Gene:ralOpinions H-456 (1974); V-715 (1948). See alsoAttorney General Cpinion V-1427 (1952). The current Appropriations Act appropriates the local funds of colleges and universities. GeneralAppropristion~; Act, Acts 1985, 69thLeg., ch. 980, art. III, §1. You finally ask whet:largrants and gifts received by state agencies and maintained in :Localaccounts are subject to appropriation. You do not inquire about a particular agency, and any question about the appropriation of 8ifts or grants received by a particular state agencymust be answered in reference to the statutes, constitutionalprovisions,and case:.aw relevant to that agency.

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The State Funds Refom Act provides, with certain exceptions, that gifts, grants, donations, and other funds

collected or receivedby a state agency under law shall be deposited in the treasury, credited to a special fund or Funds, and subject to appropriation only for t!m purposes for which they are otherwise authorized to be expended or disbursed. A deposit shall lx made at the earliest possible time that the treasury can accept those funds,but not later than the seventh day after the date of receipt. V.T.C.S. art. 4393-1, 44.0(,4(a); see, e.g., Attorney General Opinions .JM-391(1985); MN-590, MN-454 (1982). Funds deposited in the State Treasury may only be withdrawn by appropriation. Tex. Const. art. VIII, 56. Gifts and grants to state agencies named in the general appropriationsact are appropriatedby the followingprovisions:

Sec. 19. ACCLPTANCE OF GIFTS OF MONEY. All bequests and gif'tsof money to state agencies named in this AC,:are hereby appropriated to the agency designated by the grantor and for such purposes as the grantor may specify, subject to the following: (1) All such bequests and gifts of moneys, unless exempted 'JJspecific statutory authority, shall be deposited into the State treasury and shall be expend&, in accordance with the provisions of thisAct.

. . . . Sec. 20. FEDXIW FUNDS. All funds received from the Unite11 States government by state agencies and institutions named in this Act are hereby appropriated to such agencies for the purposes for which the federal grant, allocation, aid, payment or reinbursementwas made subject to the following: (1) Federal funds including unexpended balances shall b'zdeposited to and expended from the specific pogram identified under each agency's appropriationbill pattern. No federal funds may be expended for programs or activities other than those which have been reviewed by the Sixty-ninth .Legislature and

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.

authorized by specific language in this Act or encompassed by an agency's program structure as establishedby thisAct. General Appropriations Act, Acts 1985, 69th Leg., ch. 980. art. V, 5519. 20. Article XVI, section 6, of the Texas Constitution makes some special provisions for the handling of grant funds received by state agencies responsible for providing services to persons who are physically or mentally disz.bled.This provision authorizes the state agencies to accept money from private or federal sources to provide facilities and services to assist the disabled. State agencies may deposit money accepted under article XVI, section 6 in the state treasury or in another secure depository and may spend it for the purpose forwhich itwas given "without thenecessity of an appropriation, unless the Legislature, by law, requires that the money be expended only by appropr1z.tion.u Tex. Const. art. XVI, 56. If is therefore necessary to consult the statutes applicable to funds received under article XVI, section 6, of the Texas Constitution to determinewhether federal grants and gifts to a particular agency are subject to appropriation. See, e.g., Human Res. Code §§91.056, 111.055. SUMMARY

The Open Records Act applies to information about local fund:3held by state colleges and universities. Whether particular information is available to the public or excepted from public disclosure must be determined on a case-by-case basis in accordance with the procedures established in article 6252-17a.V.T.C.S. Local funds maintained by universities and colleges and gifts and grants received by state agencies and maintained in local accounts are as a general rule subject to appropriation. However, federalgrants and gifts received under article XVI, section 6, of the Texas Gonstitution by state agencies responsible for providing services to disabled persons may be s'!ent without appropriationunless the legislatureprovides by law that themoney be expendedonly on appropriation. Very/zr ,

JIM MATTOX AttorneyGeneral of Texas

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JACK HIGHTOWER FirstAssistantAttorney Gewral MARY KELLER ExecutiveAssistantAttorneyGeneral RICK GILPIN Chairman,Opinion Committee Preparedby SusanL. Garrison AssistantAttorney General

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