JIM MAlTOX Attorney General

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An EqualOpportunity/ Attlrmatlve Action Employer 

# The Attorney General of Texas

July 11, 1985

Honorable Oscar 8. Hauzv Oninion I?o.311-330 Chairman Cosnuittee

on JurisI’rudence Texas State Senate P. 0. Box 12428,Crpitol Station Austin, Texas 78711 Re: Whether the statemay provide telecommunicationservices to a private foundation

Dear SenatorGauzy:
You have asked whether article 601b. section 10.07, V.T.C.S., authorizes the Sl.a.te Purchasing and General Services Commission [hereinafter the “C~~~moission”] to contract with a private foundation for the utilization of the state telecommunication system. This statuteprovides:

The cmmission may contract with each house of the legislature, legislative agencies, counties, cities, districts. and other political subdivisionr;and agencies not witbln the definition of ‘state agency,’ for utilization of the state telecommunicationssystem. Section 1.02(2)of srticle 601b,V.T.C.S., defines “state agency” as:

(A) my department, comsnission, board, office, or other agency in the executive branch of state gove-nt: created by the constitution or a statute of this state; (B) I:heSupreme Court of Texas, the Court of Criminal Appeals of Texas, a court of civil appeals, or the Texas Civil Judicial Council; or (0 iauniversity system or an institution of higher c:ducationas defined in Section 61.003, Texas Education Code, as amended, other than a public junior college. Section 1.02(2) outlines three classes of governmental entities. The entities included in section 10.07are those governmental entitiesnot included in the deE:tnltion of state agencyunder section 1.02(2).

p. 1511Eonorablc Oscar 8. Mauzy - E'age2 (JIG330)

You inform us that the foundation is s nonprofit organization which provides educationand care formulti-handicappedchildren. The foundation is 99 percent s’tate funded, and deals primarilywith state agencies such as the Texas Department of Human Resources, the Texas Department of Mental Realtihand Mental Retardation, and the Texas RehabilitationCommission. You also informus thatapparently 95 percent of the foundation'slong distance costs are incurred in communicating with these state agencies. Finally, your letter advises that if the foundationcould cut.the cost of long distancebills, it would save the state money. We assume that the foundation was organized under the Texas Ron-Profit Corporation Act. See generally V.T.C.S. art. 1396-1.01 et seq. The answer to your first question depends on whether the foundation is an entity within the meaning of section 10.07with which the commissionmay contract. Section 10.07 enumerates particular types of entities which are followed by the general term "agencies." V.T.C.S. art. 601b. 610.07. It is this term which is ambiguous and we must resort to rules of statutory construction. W'tengeneral words follow the enumeration of a particular class of perr;c,ns or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. This rule is based on the supposition that if the leE,islature had intended the generalwords to be used in an unrestricted sense, they would have made no mention of the particular classes. SeerFarmers' & Mechanics' Rational Bank v. --- m, 137 S.W. 1120 (Tex. 1911); see also 53 Tex. Jur. 2d 5155 Statutes (1964). specific teTm8precz;;i i;hlrterm "agencies" is restricted by the

It is clear that all cf the enumerated entities in section 10.07 have some form of governslentalstatus under the constitution and statutes of this state. Hauses of the legislature,counties,muoicipalities and districtsare created and authorizedby the Texas Constitution. See Tax. Const. art. art. XI, 01(counties) ; art. III, I 1 (houses of the legislature); XI, 564 6 5 (municipalities); srt. XVI, $59 (special purpose districts); art. IX. 514-11 (special purpose districts). Legislative agencies are created by the statutes. See V.T.C.S. art. 542913, 91 (leSJ.slative

council);art. 5429c (legislative budget board); see generall:! art. 5429g. I1 (definitionof legislative agency). Therefore, we munt ascertain whether the foundation has a governmental status for thepurposes of section 10.07.
One of the main purpcses for the creation of the state telecossnunications

systemwas to reduce the cost of telephone services to the state government. Cf. 'J.T.C.S.art. 601b. 610.03. Since 99 percent of the foundationFfunds are received as a result of governmental contractswith state agencies and other governmental sources, you suggest that itwould be reasonable to conclude that the organisatlon's utilization of the state communication system would have the

p. 1512. EonorableOscar Il. Gauzy - Pqle 3 (~~-330)

effect of reducing gwemmer.tal spending. Rowever, such a conclusion would have the effect of allcwing every orgsnization receiving public funds to utilize the state telecommunications system. This practice would,however,be contrary t,o the expressed limitingwords in section 10.07. The statutory language is thebest evidenceof the legislative intent. Sabine Pilots Assn. v. Lykes Brothers Steamship, Inc., 346 S.W.2d 166 (Tax.Civ. App. -Austin 1961,no writ). The receipt of public funds is sufficient to subject the foundation to the Open Records act. SeeV.T.C.S. art. 6252-176, 5(2)(1)(F). We believe, however, that ':bisfact is insufficient to confer upon this private organization a governmental status of the class within themeaning of section 10.07. The foundation provid'asa vital service to the state. The foundation operates six of 43 licensed residential treatment centers in Texas. Because the Texas Department of Buman Resources [TDBRI is named managing conservator J:Eseveral thousand children each year by the state courts, the foundation's facilitiesare among those used by TDHR as a placement source. Although the foundation assists in fulfilling this public purpose, it is a privatenonprofit corporation created for a orivate. as dj.stinauished from a surelypublic. purpose. See Miller v: David; 150 S.Wr2d 973 (Tex.-1941j.- It ~1snit a Ge-ntal agency. Cf. Un:LversityInterscholasticLeague v. Payne, - -- 635 S.W.2d 754, 756-57,n.4 (Tex.App. - Amarillo 1982,writ dism'd). Accordingly, we conclude that the foundation is not an entity with which the Commission may contract for the utilisation of the state telecommunicationssyllt:em.
You also askwhether, regardless of section 10.07, the Commission =Y "nonetheless contract with the foundation for utilization of the state telecowaunicationssyl;t:em." We thinknot. The State Purchasing and General ServicesCommisc;ionis an administrativeagency createdby statute. V.T.C.S. art. 601'bet seq. The Supreme Court has held that where power is granted to zir. administrative agency and the method by which it is exercised is I'rescribed.the prescribed method excludes all others andmust be fall&led. CobraOil & Gas Corp.v. Sadler, 447 S.W.2d 887 (Tex. 1968). Section 10.07 is the onlv authorityby which the Commission may contract:with the foundationand for the ieasons stated above, we conclude that the Commission may not contract with the foundation for the ut:t:Lization of the state telecommunications system.
SUMMARY

Article 601b, section 10.07,V.T.C.S.. does not authorize the State Purchasing and General Services Commissl.onto coutract with a private

p. 1513Eonorable Oscar 8. Gauzy - Page 4 (JM-330)

nonprofit **corporation** for the utilization **of** the state telecomunic~ationssystem.
**Very**

**_I truly**  **your 1**  **#**

**/ A-4**  Attorney General of Texas
TOM GREEN First Assistant AttorneyGewral
DAVID R. RICHARDS Executive Assistant Attorne], General
ROBERT GRA-i SpecialAssistant AttorneyGeneral
BICR GILPIN Chairman, Opinion Committee Preparedby Tony Guillory AssistantAttorney General
APPROVED: OPINION COHMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillorg Jimnoellinger JenniferRiggs Nancy Sutton

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