CRAWFORD C. MAR-rxiw AUSTIN. TEXAS 18111 

AITORN&Y CiENERAL 

May 18, 1971 

2 --jLfl- 47 

Honorable G. F. Mutscher Opinion No. M-861 

Speaker, House of Representatives 

Capitol Building Re: Constitutionality of 

Austin, Texas 78711 Senate Bill 56 authorizing 

tuition equalization grants 

to students of approved 

private colleges and uniDear Mr. Mutscher: versities in Texas. 

We have received your request for an opinion of this 

office as follows: 

"Your attention is called to Senate Bill #56, 

copy enclosed, which is presently being considered 

by the House of Representatives. Your opinion is 

respectfully requested as to whether the bill if 

enacted would in any respect violate the Texas Constitution, and most specifically, whether it would 

violate Article III, Section 51, or Article I, 

Section 7. of the Texas Constitution." 

The question for resolution is presented in Section 1 

of the proposed bill which reads: 

"Section 1. In order to provide the maximum 

possible utilization of existing educational resources and facilities within this State, both 

public and private, the Coordinating Board, Texas 

College and University System, is authorized to 

provide tuition equalization grants to Texas residents enrolled in any approved private Texas 

college or university, based on student financial 

need." 

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. . 

lion. G. F. Mutscher, page 2 (M-861) 

It is the opinion of this office that Senate Bill #56 

does not violate either Article I, Section 7, or Article III, 

Section 51, or other parts of the Texas Constitution. 

Article I, Section 7, Texas Constitution, reads as follows: 

"NO money shall be appropriated, or drawn 

from the Treasury for the benefit of any sect, 

or religious society, theological or religious 

seminary: nor shall property belonging to the 

State be appropriated for any such purposes." 

Article III, Section 51, reads, in its pertinent part, 

as follows: 

"The Legislature shall have no power to 

make any grant or authorize the making of any 

grant of public moneys to any individual, association of individuals, municipal or other corporation whatsoever; . . .I' 

The questions presented by Senate Bill #56, and your 

letter were passed on by this office in Opinion NO. M-391 while 

considering Senate Bills 631 and 485 in 1969. Such opinion determined that the Senate Bills considered did not violate Article 

I, Section 7, Article III, Section 51, or Article XVI, Section 6, 

of the Texas Constitution. 

The problem of separation of Church and State has been 

frequently discussed, and is presently before the United States 

Supreme Court in the cases Tilton v. Richardson, Lemon v. Kurtzman, 

and DiCenso v. Robinson. This opinion, of course, is subject to 

the final outcome of these cases. 

In the case Board of Education v. Allen, 392 U.S. 236, 

the United States Supreme Court reviewed a New York law requiring 

local public school authorities to loan textbooks, free of charge, 

to all students, grades seven through twelve, including those in 

private schools. The Court upheld the New York law stating: 

"Everson' and later cases have shown that the 

line between state neutrality to religion and state 

support of religion is not easy to locate. The 

constitutional standard.i.6 the separation of Church 

lEverson v. Board of Education, 374 U.S. 1 (1947) -4180- 
. . 

Hon. G. F. Mutscher, page 3 (M-861) 

and State. The problem, like many constitutional 

problems in constitutional law, is one of degree." 

The Court then set out a test 

declaring: 

to measure the degree 

"The test may be stated as follows: what are 

the purpose and then primary effect of the enactment? 

If either is the advancement or inhibition of religion then the enactment exceeds the scope of 

legislative power as circumscribed by the Constitution. 

That is to say that to withstand the strictures of 

the Establishment Clause there must be a secular 

leqislative purpose and a orimarv effect that neither 

advances nor inhibits religion." (Emphasis added.) 

The primary purpose of Senate Bill 56, as set out in 

Section 1, is to serve a State or public purpose by 0 . . . utilization of existinq educational resources and facilities within 

this State, . . ." (Emphasis added.) with all the financial benefits to be derived therefrom. The tuition aid is provided to individuals, so the benefit to a particular religion is "indirect" 

and "remote" as opposed to "primary". 

There can be no doubt that it is in the public interest. 

to provide for the education of the student citizens of this State. 

The subject has been foremost in the minds of our citizens since 

prior to the Texas Declaration of Independence from Mexico, and 

exists today in our Texas Constitution. Article VIII, Sections 1 

and 10. 

It is submitted that Senate Bill #56 meets the Supreme 

Court's test of having fl . . . a secular legislative purpose and 

a primarv effect that neither advances nor inhibits religion." 

(Emphasis added.) 

Courts in other states have followed the reasoning of the 

Supreme Court of Kentucky in Kentucky Buildinq Commission v. Effron, 

310 Ky. ‘355, 220 S.W.2d 836 (1949) wherein the Court announced: 

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Hon. G. F. Mutscher, page 4 (M-861) 

"It is well settled that a~ private agency may 

be utilized as the pipe-line through which a public 

expenditure is made, the test beinq not who receives 

the money, but the character of the use for which 

it is expended." (Emphasis added.) 

See also: In re Opinion of the Justices, 113 A. 2d 114 (Supreme 

Court, New Hampshire, 1955); Craiq v. Mercy Hospital-Street 

Memorial, 209 Miss. 427, 45 So. 2d. SO9 (1950); Leqat v. Adorno,, 

138 Conn. 134, 83 A. 2d. 185 (1951); Roe v. Kervich, 42 N.J. 191, 

199 A. 2d 834 (1964); and Attorney General Opinions C-644 and C719 which approved contracts and tuition payments with religious 

institutions under the theory above stated. 

Further, "It is plain that an expenditure is not necessarily barred because individuals as such may profit . . .", 51 

Am.Jur. 281 Taxation, Sec. 330, et seq. and authorities cited 

therein. See also Attorney General Opinions C-474, C-719 and 

M-391. In Attorney General Opinion V-1067 (1950) we stated, in 

part, as follows: 

"In determining whether an expenditure of 

public moneys constitutes a gift or a grant of 

public moneys, 'the primary question is whether 

the funds are used for a "public" or "private" 

purpose. The benefits of the State from an expenditure for a "public purpose" is in the nature 

of consideration and the funds expended and therefore not a gift even though private persons are 

benefited therefrom."' 

It is a legislative function to determine what constitutes a "public purpose" and will not be reversed by the courts 

unless manifestly arbitrary and incorrect. State ex rel. McClure 

v. Haqerman, 155 Ohio St. 320, 98 N.E.2d 835 (1951). Where a low 

rent housing project was objected to as being a prohibited gift 

to individuals, our Supreme Court in Housinq Authoritv of City of 

Dallas v. Hiqqinbothom, 135 Tex. 158, 143 S.W.2d 79 (1950) held 

that the Legislative Declaration of the purpose of the legislation 

must be given weight by the Courts. 

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Hon. G. F. Mutscher, page 5 (M-861) 

It is therefore our opinion that Senate Bill #56 declares 

a secular legislative or public purpose and is not violative of the 

Constitution of the State of Texas. 

Our only reservation concerning Senate Bill No. 56 is 

that, if passed, the Coordinating Board, under Section 6, should 

make sufficient regulations to prevent forced religious courses 

or activity on the recipients of the funds by the schools attended.. 

mace Mann League of U.S. v. Bd. Public Wks,, 220 A2d 51 (Md.1966). 

SUMMARY 

Senate Bill No. 56, providing for tuition 

equalization grants, states a primary purpose to 

provide the maximum possible use of existing resources and facilities in this State and therefore 

does not violate the separation of church and state 

doctrine of Article I, Section 7 or the prohibition 

of grants of public funds to individuals of Article 

III, Section 51 of the Texas Constitution. 

Attor General of Texas 

Prepared by Melvin E. Corley 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

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Hon. G. F. Mutscher, page 6 

( 9 

(M-861) 

Rex White, Jr. 

J. C. Davis 

Jack Goodman 

Bob Flowers 

HEADE F. GRIFFIN 

Staff Legal Assistant 

ALFREDWALKER 

Executive Assistant 

NOLA WRITE 

First Assistant 

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