PRICE DANIEL ATTORNEY GENERAL 

### AUHTIN u.TExas

November 8, 1948

Dr. J. G. Flowers, President Southwest Texas State Teachers’ College San Marcos, Texas Opinion No. V-715 Re: Legality of payment to San **Marcos** by Southwest Texas State Teochers’ College for police

Dear Dr. Flowers: and fire protection and other like public services.

Your request for opinion is as follows: “May the Southwest Texas State Teachers College pay the City ofSan Marcos for the following public services: Police protection, fire protection, street operation and maintenance, and other miscellatieous official sexvic,es? “Basic Data

“‘1. The College has recently acquired from the Federal Government title te 150apartments and a service-office building located on land which has been owned by the College. During the War the Federal Govec~nmenf built this project as a defense housing project and pard rhe College ren.tonthe land.“2.At rb,eclo,s9 of th,eWar thi,sprqject was converted into a Veteran StuderytHousing Projec,t and was continued under the administration ofthe Federal Housing Authorities. Federal Authorities discontinued its operation on October 1, 1948.~The rents heretofore collected by the Federal Government will now be collected by the College and will be deposited in our Local Account. “3. During the time the Federal Public Housing Authorities operated the unit, the said Federal Public Housing Authorities paid the City of SanDr. J, G. Flawerg, Page 2(V-715)

Marcos $1,9gO,OO per year for the services mentimed above. M Itaffirmatively appears from the information given in your letter that the prsperty therein mentioned, formerly owned by the Federal Government, is now owned by the Southwest Texas State Teachers’ College, and hence is now public property ofthe State in common with ~11other property ofthe College. We assume, although yau do not say so, that payment for the services specified in yeur letter tobe rendered by the City of San Marcos to the College is tobe paid from the r.ents received from students ofthe College, and that such rental or fees are tobe deposited in the local account of the College. This revenue constitutes public funds. This department so held in Opinion No. O-1662, a copy of which is herewith enclosed.

The expenditure ofsuch local funds by certain desig**nated** governing boards, such as the Board ofRegents ofthe State Teachers’ Colleges, is governed by the provisions ofArticle 2654d, **V.C.S.,** and Subsection (3) ofH.B. 246, 50th Legislature. Said Article 2654d provides in part as follows:

“Sec. 1. The governing boards of

. . .including

. . .the Southwest Texas State Teachers’ College atSan Marco@ may retain control respectively ofthe fallowing sums ofmoney collected at each of said several institutions in carrying out the functions of an educational institution, such as funds collected from student fees ofall kinds; charges for use of rooms and dormitories, receipts from meals, cafes and cafeterias, fees ondeposit refundable to students under certain conditions; receipts from school athletic activities’ t
. 00all other fees and local institutional income ofa strictly local nature arising out ofany by virtue ofthe educational activities ar research or demonstration carried out by each and all ofthe several schools.” “Section ga. This law shall be subordinate and subservient tothe biennial appropriation bill for the support ofthe several institutions herein mentioned.” The general provisions ofthe biennial appropriation for the educational institutions ofthe State, H.B. 246, 50th Legislature, are in part as follows:

4,

. *

.or proceeds from the sale of such proparty, from labor performed, from the sale ofmaterials, **crops** and supplies, from fees, and any and all other receipts, shall become and are hereby ap-Dr. .I. G. Flowers, Page 3 (V-715)

propriated as maintenance or contingent funds to be expended under the direction and with the approval ofthe governing board having jurisdiction. Said governing boards are authorized touse out of the proceeds of said receipts and funds, in accordance with the provisions ofthis act, such amounts as they shall deem necessary for the support, maintenance, operation and improvement of said institutions.

. .” We assume that in submitting your request you have in mind such police and fire protection, street operation and maintenance, and other miscellaneous services rendered by the City ofSan Marcos enjoyed in co-on by all citizens or institutions within the confines ofthe corporate limits ofthe city. This opinion is written upon that assumption.

The Board of Regents ofthe State Teachers’ College is created by legislative enactment, and it has only such power and authority as is expressly conferred upon itby the Legislature or such as may reasonably be implied from that expressly granted.

Itwill be observed by the provisions ofSection ga of Article 2654d, V.C.S., quoted above, that these local funds are subject toappropriation by the Legislature and may not be otherwise expended. We do not construe the foregoing statutory provisions-and there are no others presently existing-as authority for the expenditure ofthase local funds by the College or its Board of Regents for the purposes enumerated in your letter.

It seems quite clear tous that unless the College receives some special service from the City, not enjoyed in common by all citizens and institutions within the corporate limits ofthe City, some ofwhich may be tax-exempt as is the College, payment for such services enumerated in your letter would be precluded by Section 51ofArticle III ofthe Constitution, which provides: “The legislature shall have no power tomake any grant or authorize the making ofany grant of public money toany individual, association of individuals, municipal or other corporation whatsoever.” We do not mean tohold that the expenditure ofpublic funds for police and fire protection, maintenance of streets, etc,, is not for a public purpose, but if paid tothe city merely for the privilege ofenjoying these public services in common with all towhom the city owes these services in any event, such a payment would constitute a donation clearly forbidden. LSr..J. Q. Flowers, page 4 (~~-715)

b t&eferepiiq Constitutional provision

ft4$%?refare fcvllcw’sf,rom what we have said above that it i$ our opinion that %ere is no legal authority foP the Southwe& Texas Stale Teachers’ College te pay the City ofSan Marpas for the 8esviceS mtMieried inyour letter. ,

Lo~4 &M&J oftheSouthwest Texas State Teacherg ’ Coll~(e may txotbe u:‘e~dCOpay the City ofSgn -CO& for p&c@ and fire protection, operation dnd maintervrlbce of streets, and other municipal services, which are enjoyed in common **by** all citiaens and in- &,UtUkjM@wU&& tprac3mperate limit6 ofthe city. (hm&td~m, Sec%‘i@ti!X,Art. III. Very truly yours, I ATTORNEYGENERALOFTEXAS

Assist&

ATTORNEY GENERAL

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