**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 ofRepresentatives Capitol Building Re: Constitutionality of Austin, Texas 78711 Senate Bill 56authorizing 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 ispresently being considered by the House ofRepresentatives. Your opinion is respectfully requested as towhether thebill if enacted would inany respect violate the Texas Constitution, andmost specifically, whether itwould violate Article III, Section 51, orArticle I, Section 7. of the Texas Constitution." The question for resolution ispresented inSection 1 of the proposed bill which reads:

"Section 1. In order to provide themaximum possible utilization of existing educational resources and facilities within this State, both public and private, the Coordinating Board, Texas College andUniversity System, is authorized to provide tuition equalization grants to Texas residents enrolled inany approved private Texas college oruniversity, based on student financial need."

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It is the opinion of this office that Senate Bill #56 does not violate either Article I, Section 7, orArticle III, Section 51,or other parts of the Texas Constitution.

Article I, Section 7, Texas Constitution, reads as follows: "NOmoney shall be appropriated, ordrawn from the Treasury for thebenefit of any sect, orreligious society, theological or religious seminary: nor shall property belonging to the State **be** appropriated for any such purposes." Article III, Section 51, reads, in itspertinent part, as follows:

"TheLegislature shall have no power to make any grant or authorize themaking of any grant ofpublic 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 onby this office inOpinion 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, orArticle XVI, Section 6, of the Texas Constitution.

The problem of separation of Church and State has been frequently discussed, and ispresently 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 ofEducation v.Allen, 392U.S. 236, the United States Supreme Court reviewed aNew 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 linebetween state neutrality to religion and state support of religion isnot easy to locate. The constitutional standard.i.6the separation ofChurch lEverson v. Board ofEducation, 374U.S. 1 (1947) -4180-. .

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

and State. The problem, likemany constitutional problems in constitutional law, is one of degree." The Court then set out a test declaring: tomeasure the degree

"The test may be stated as follows: what are the purpose and thenprimary 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 towithstand the strictures of the Establishment Clause theremust 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 Stateor public purpose by 0 . . .utilization of existinq educational resources and facilities within this State, . . ." (Emphasis added.) with all the financial benefits tobe derived therefrom. The tuition aid isprovided to individuals, so the benefit to aparticular religion is "indirect" and "remote" as opposed to "primary".

There canbe no doubt that it is in the public interest. toprovide for the education of the student citizens of this State. The subject has been foremost in theminds of our citizens since prior to the Texas Declaration of Independence fromMexico, 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 ofhaving fl. . .a secular legislative purpose and aprimarv effect that neither advances nor inhibits religion." (Emphasis added.)

Courts in other states have followed the reasoning of the Supreme Court ofKentucky inKentucky Buildinq Commission v. Effron, 310Ky. ‘355,220S.W.2d 836 (1949)wherein the Court announced:

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"It iswell settled that a~private agency may be utilized as the pipe-line through which apublic expenditure ismade, the test beinq notwho receives themoney, but the character of the use forwhich it is expended." (Emphasis added.) See also: In re Opinion of the Justices, 113A. 2d 114 (Supreme Court, New Hampshire, 1955); Craiq v.Mercy Hospital-Street Memorial, 209Miss. 427, 45 So. 2d. SO9 (1950);Leqat v.Adorno,, 138 Conn. 134, 83A. 2d. 185 (1951);Roe v. Kervich, 42N.J. 191, 199A. 2d 834 (1964); andAttorney General Opinions C-644 and C719which approved contracts and tuition payments with religious institutions under the theory above stated.

Further, "It isplain that an expenditure isnot necessarily barred because individuals as such may profit . . .", 51 Am.Jur. 281Taxation, Sec. 330, et seq. and authorities cited therein. See also Attorney General Opinions C-474, C-719 and M-391. InAttorney General Opinion V-1067 (1950)we stated, in part, as follows:

"Indetermining whether an expenditure of public moneys constitutes a gift or a grant of public moneys, 'theprimary question iswhether 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 isa legislative function to determine what constitutes a "public purpose" andwill notbe reversed by the courts unless manifestly arbitrary and incorrect. State ex rel. McClure v. Haqerman, 155 Ohio St. 320, 98N.E.2d 835 (1951). Where a low rent housing project was objected to asbeing aprohibited gift to individuals, our Supreme Court inHousinq Authoritv of City of Dallas v. Hiqqinbothom, 135Tex. 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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It is therefore our opinion that Senate Bill #56 declares a secular legislative or public purpose and isnot violative of the Constitution of the State ofTexas.

Our only reservation concerning Senate Bill No. 56 is that, ifpassed, 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 ofU.S. v. Bd. Public Wks,, 220A2d 51 (Md.1966). SUMMARY Senate Bill No. 56,providing for tuition equalization grants, states aprimary purpose to provide themaximum possible use of existing resources and facilities in this State and therefore does not violate the separation of church and state doctrine ofArticle I, Section 7 or the prohibition of grants ofpublic funds to individuals ofArticle III, Section 51 of the Texas Constitution.

Attor General ofTexas Prepared by Melvin E. Corley Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman

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(M-861)

RexWhite, 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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