The Honorable Joe Allen, Chairman Committee on House Administration House of Representatives Austin, Texas Opinion No. H- 184

Re: Obligation ofHouse of Representatives to furnish space to members ofthe press.
Dear Representative Allen:

On behalf ofthe Committee onHouse Administration you have asked us several questions bearing upon the use of space inthe Capitol building by members ofthe media. Specifically, your questions are:

“1. What obligation does the House of Representatives have with regard to providing rent free space to members ofthe media inthe Capitol Building?

“2. Are there any precedents in other states law or federal law regarding providing space to members ofthe media?

“3. Ifspace is provided to some members ofthe media, does the House of Representatives have an obligation,to provide space to all legitimate members ofthe media?.

“4. Ifthe House of Representatives does not have toprovide space to all members ofthe media, what means should be used to differentiate between members ofthe media? ”

In 1954 the Constitution ofTexas was amended by the addition of 551-b ofArticle 3which provides for the creation ofthe State Building Commission and the State Building Fund. Itprovides that the Commission shall have broad powers over the acquisition and disposition ofproperty to be used for state offices. Itprovides that the first building tobe

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built out ofthe Fund is one to be devoted to the use and occupancy of the Supreme Court and such other courts and agencies as may be provided by law.

Pursuant to the mandate contained in this amendment, the Legislature adopted Article 678m, V. T. C,S. Itprovides in its§23:

“When theSupreme Court ofthis State, the Court of Criminal Appeals, the offices ofthe Attorney General and the State’s Attorney and the Supreme Court Library shall have moved from the State Capitol Building, the Board of Control is directed to make available for the
use and occupancy ofthe Legislature such offices and committee rooms as the Legislature shall consider necessary and appropriate for the efficient conduct of the affairs ofthe House ofRepresentatives and the Senate;

. . . :’

The functions and duties ofthe Board of Control are covered by Title 20 ofthe Texas Statutes. Chapter 4has to dowith the public buildings and grounds division. Article 665 provides:

“The State Board ofControl shall have charge and control ofall public buildings, grounds and property of the State, and is the Custodian of all public personal property, and is charged with the responsibility toproperly care for and protect such property from damage, intrusion or improper usage,

. . . . And the Board shall be authorized toprovide for the allocation of space in any ofthe public buildings to the departments ofthe State Government and for the uses authorized by law to have an occupied space inthe State buildings,

. . . . Said Board ofControl shall remove all occupants of all committee rooms in the Capitol, keep them free for Legislative work. Provided, however, that the allocation ofany space affecting the quarters of either House ofthe Legislature, must have the approval of

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the Speaker ofthe House ofRepresentatives or the Lieutenant Governor, the approval being for the quarters allocated to the particular House affected. ”

Article 667 provides:

“The Board [of Control], during the recess ofthe Legislature, shall have charge and control ofthe halls, chambers, and committee rooms ofthe State Capitol Building except as hereinafter provided. B&re the assembling ofeach session ofthe Legislature, the Board shallprepare the different rooms for the use ofthe Legislature.”

As we construe this statntory history, the Board of Control has been authorized by the Legislature to allocate space in the Capitol Building. A purely technical answer toyour first question, therefore, would be that the House ofRepresentatives has no obligation to provide space to the members ofthe media in the Capitol Building. However, we would call toyour attention the fact that, despite a delegation ofthese various powers to the Board of Control, nevertheless, the Legislature may exercise such powers as it will; provided it does not act contrary to the provisions of $51-b ofArticle 3or other provisions ofthe Constitution. Thus, for instance, inconley v. Texas Division ofthe United Daughters ofthe Confederacy, l&SW. 24 (Tex. Civ. App., Austin, 1913, err. ref’d.) itwas held that, notwithstanding the fact that the superintendent ofpublic buildings and grounds had been given authority totake charge and control ofall public buildings, the Legislature retained the right to designate and set apart rooms in the Capitol for purposes it deemed proper. Therefore, while neither the Legislature nor the Board of Control is under obligation to allocate space to members ofthe media in the Capitol Building, free or otherwise, they may do so. Also, in the absence of legislation authorizing the collection of rent, no rental may be charged for space made available tomembers of the media or to others 

### in state buildings. Tarrant County v. Ratikan Title Company, ,199 S.W.’ 2d 269 (Tex. Civ.App., Ft. Worth, 1947, nowrit).

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We do not see that the furnishing of free space to the media for proper media purposes inthe Capitol Building would run contrary toArticle 3, $51ofthe Constitution which provides that the Legislature may not make any grant ofpublic moneys to any individual. The provision does not prohibit the use ofpublic funds or properties for public purposes, even though aprivate agency is used to achieve the purpose. Friedman v. American Surety Company ofNew York, 151S.W. 2d 570 (Tex. 1941); Davis V. City of Lubbock, 326 S.W. 2d 699 (Tex. 1959); Bexar County Hospital District v. Crosby, 327 S.W. 2d 445 (Tex. 1959); State v. City ofAustin, 331S.W. 2d 737 (Tex. 1960); Bullock v. Calvert, 480 S.W. 2d 367 (Tex. 1972); Attorney General Letter Advisory No. 6 (1973) and authorities there citied. One substantial public purpose furthered in the provision of space to the media is the public purpose advanced inthe enactment ofthe Open Meetings Law (Article 6252-17, amended Acts 1973, 63rd. Leg., ch. 31, p. 45) “of assuring that the public has the opportunity to be informed concerning the transactions ofpublic business. ” Toyah Independent School District. ‘cr.Pecos - Baistow Independent School District, ‘466 S.W. 2d 377.(Tex. Civ. App. , San Antonio, 1971, nowrit).

Our answer toyour first question therefore is that the House ofRepresentatives has no constitutional or statutory obligation to provide rent free space to members ofthe media inthe Capitol Building but that, consistent with our traditional notions ofopen government and the need for an informed citizenry, and consistent with the purposes ofthe Gpen Meetings Law, the House and/or the Board of Control are amply justified in making a reasonable amount of space available for proper media purposes. And see Article 3. $16, and Article 1, $8, Constitution of Texas,

To your second question we would add that we have found no specific statutes or cases in the law ofother states or the United States with would have any precise bearing upon our answers to your questions. Of course, the laws ofall of our states and of the nation encourage adiligent press and an informed citizenry.

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Your third and fourth questions ask whether theHouse has an obligation toprovide space toall legitimate members ofthe media and, if it does not, what means should be used to differentiate between members of the media. Assuming that the space provided to the members ofthe media is insufficient to meet the needs of “all legitimate members ofthe media, ” itis our opinion that the House ofRepresentatives or whoever else allocates the space, may do so in one of several ways, the only requirements being that the classifications ofthose who are tohave space and those who are not must be reasonable and must not be based upon any unconstitutional discrimination.

SUMMARY

Neither the House ofRepresentatives nor the Board of Control is under any constitutional or statutory obligation tofurnish rent free space to members ofthe media in the State Capitol Building. However, they may provides space for the proper public purpose of keeping the people informed. Ifsuch space is provided, it must be provided either to all legitimate members ofthe.media 

### or allocated upon a reasonable basis which does not unconstitutionaly discriminate in determining who shall and who shall not be afforded space.

Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

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