THEATTORNEY GENERAL OF TEXAS

Honorable Frank Hlldebrand Executive Director Texas Tourist Development Agency Box TT; Capitol Station Austin, Texas 78711 OpinionNO. c-216
Re: Construction of Section 56 of Article XVI of the Constltutiorl

of Texas and House Bill 11, Acts of the 58th Legislature, Regular Session, 1963, Chapter 137, Dear Mr. Hildebrand: page 370.

Your request~foran opinion on the above subJectmatter asks the following questions:

"1

. Does Article 16, Section 56 of the Texas 'Constitutionconstitute a legal inhibition on the use of advertising funds appropriated to this Agency? "If the answer to this question is in the affirmative,we respectfully request that you answer the following questions: "1. what does the terni'periodicals' in,Artidle 16, Section 56, encompass? Does It, for example,permit the Agency'suse of radio, television, outdoor and othermedia as well as newspapers and magazines? "2. What constitutes 'nationalcirculation'within the meaning of Article 16, Section 56? What circulation 'yardstick' should the Agency adopt in buying apace and time?" Section 56 of Article XVI o$ the Constitution of Texas provides as follows:

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"The Legislature of the State of Texas shall have the power to appropriatemoney and establish the procedure necessary to expend suchmoney for the purpose of developing lnformation about the historical, natural, agrlcultural, 'Industrial,educational,marketing, rec,reatlonal

and living resources of Texas, and for the purpose of informingpersons and corporations of other states through advertising in periodicalshaving national circulation;and the dissemination of factual information about the advantages and economiti resources offered by the State of Texas;~providlng,however, that neither the name nor the picture of any living state official shall ever be used in any of said advertising,and providing that the'Legislature may require that any sum of money appropriated hereunder shallbe matched by'an equal sum paid into the State Treasury from private sourcesbefore any of saidmoney may be expended."
House Bill 11, Acts of the,58th Legislature, Regular Session, 1968 Chapter 137, page 370, codified in Vernon's as Article 614&f, Vernon's Civil Statutes, creates the Texas Tourist Development Agency. Section 2~of House Bill 11 prescribes the duties ,ofthe Texas Tourist DevelopmentAgency, as follows:

"The Texas Tourist Development Agency shall,be charged with the responsibility of administering funds appropriated to It in accordancewith the provisions of this Act so far aspossible to achieve the following: "(a) Promote and advertise, by means of ,radlo,television, and newspapers 'andothermeans deemed appropriate, tourism'to Texas by~nonTexans, Includingpersons from foreign countries, 'andto promote travelby Texans to the State's scenic,historical,,natural,agricultural,educational, recreational and other attractions. "(b) Coordinateand stimulate the orderly but accelerated development of tourist attractions throughout Texas. "(c) Conduct in the broadest sense a public relations campaign to create a responsible and accurate national and international image of Texas.

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Hon. Frank Hildebrand,page 3 (c-216)

"(d) Cooperate~fullywith the agency in charge of operations of the State'spark system in all matters relating to, promotion of tourism. "(e) Cooperatewith the Texas Highway Commission In the administration of the Highway Commission's collateralprogram of highway map distribution and'operation of Travel InformationBureaus and other tourist 'related functions,

conducted by the Texas Highway Commission. "(f) Encourage Texas communities, organizations,and individuals to cooperate with its program by their activities and use of their own funds and to collaborate with these organizationsand other governmental entitles in the pursuit of the objectives of this Act."
In Attorney General's Opinion C-25 (1963), It was held:
"It appears from the wording of Section 56 of 4rticle XVI that the Legislaturehas the power to appropriatemoney'for three~purooses: (1) 'forthe purpose,of developing information aboutthe historical, natural, agricultural, industrial, educational,marketing, recreational and llving'resourcesof Texas
. . .I;and (2) 'for the purpose of'informingpersons and, corporations of other'states through advertising in periodicalshaving national 'circulation

Iand (3) 'thedissemination of factual inhogation about the advantages and economic resources offeredby the State of Texas
. . .' It Is clear that purpose (1) does not pertain to advertising,but applies only to the developing of certain information. Where persons and corporatdons of other states are to be informed about the advantages and economic resources of Texas through the medium of advertising in perlodicals, such periodicalsmust have a national circulation;however, this limitation Is clearly applicable only to this particularmedium.
"You are, therefore, advised that the Legislaturemay authorize the expenditure of money under Section 56 of Article XVI of

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the Texas Constitution for the purpose of the dissemlnatlon of factual information about the advantages and economic resources offeredby the State of Texas. The only limitationplaced upon the Legislature as to its choice of the method of the dissemination of factual information about the advantages and economic resources offered by the State of Texas is that when the advertisingmedium chosen for the purpose of disseminating such Information to persons and corporations of other states is a periodical, it must be one of national circulation."
In view of the foregoing, you are advised that 'theexpenditure of advertising funds appropriated to the Texas TourLvt'DevelopmentAgencymust be expended in complianceivith Section 56 of ArticleXVI of the Constitution of Texas. The limitation of advertising in'periodicalshaving national circulation applies only to that particularmedium and does not apply to the use of radio, television, outdoor or othermedia,

The term "national circulation" is not definedby the provisions of Section 56 of Article XVI of the Constitution of Texas and there is no particularyardstick that can be applied precisely. The determinationof whether or not a partlcular periodfcalmeets 'thisrequirement is a question of fact to be determinedby your agency. If the advertising Iii question Is designed to appeal to the public at large then the periodical shouldbe circulatedgenerally throughout the United States;however/if the advertising in question is directed toward a particular ethnic group or a group having a~common economic, social, reoreational'oravocational interest, it Is our opinion that the spirit and Intent of this constitutionalprovision would be met by 'placingsuch advertising in a periodical 'whichie hlrculated generally among such 'groupthroughout the'united States, SUMMARY The Texas Tourist DevelopmentAgencymay expend monies appropriated for advertisingby the use of radio, television, outdoor and other media, as well as newspapers and magazines. Whenever a periodical Is used for the purpose of advertising, suchperiodicalmust

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be one of national circulation.

Yours very truly, WAGGONER CARR Attorney General

JR:ms APPROVED: OPINION COMMITTEE
W; V; Geppert, Chairman w. 0. shultz Rbbei-t

I&wis J. C. Davis APPROVED FOR TRF'ATTORNEY GENERAL By: Stanton Stone

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