Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
Narch 5, 1981
MARK WHITE
Attorney General
Honorable Bob Bullock Opinion No. M+295
Comptroller of Public Accounts
Capitol Station Re: Whether various statutes apply
Austin, Texas 76774 to the Texas Guaranteed Student
Loan Corporation
Dear Mr. Bullock:
You ask whether the Texas Guaranteed Student Loan Corporation is a
“state agency” within a number of statutes. The Texas Guaranteed’Student
Loan Corporation is a public, non-profit corporation created pursuant to
chapter 57 of the Education Code. It guarantees loans made to eligible
students under the federal guaranteed student loan program established by
the Higher Education Act of 1965, 20 U.S.C. sections 1001 et seq. It is
specifically made subject to the Texas Sunset Act, Education Code section
57.12(a).
The term public corporation includes public agencies such as drainage
districts, irrigation districts, cities and city housing authorities. Harris
County Drain-&e District No. 12 v. City of-Houston; 35 S.W.2d 118x
Comm’n App. l93U; Loumparo ff v. Hous’ 261
S.W.2d 224, 227 (Tex. Civ. App. - Dallas 1953, no writ); J. C. Engleman Land
Co. v. Donna Irrigation District No. 1, 209 S.W. 426 (Tex. Civ. App. - San
Antonio 1919. writ ref’dl. It also can refer to an instrumentality of the
government or a convenient mesns to carry out a governmental function.
Attorney General Opinion No. 2971 (1935). It is %onnected with the
administration of the government, and the interests and franchises of which
are the exclusive property and domain of the government itself.“’ Miller v.
m, 150 SW. 2d 973, 976 (Tex. 1940. As such, the term public corporation
has been found to include the Texas Emolovers Insurance Association and the
Bank Deposit Insurance Corporation. M&k%eton v. Texas Power & Light Co.,
185 S.W. 556 (Tex. 1916); Attorney General Opinion No. 297l(l935).
You ask whether the Texas Guaranteed Student Loan Corporation is a
“state agency” for purposes of articles 6252-94 6252-Q 6252-Ilb, 6252-llc,
6252-13a, 6252-17, 6252-17a, 6252-19, 601b and 4413(32), V.T.C.S. The Texas
Guaranteed Student Loan Corporation was created after a study by an
interim committee of the legislature. One of the reasons that the public
corporation form was chosen was to provide a measure of administrative
flexibility not available to state agencies. Report of the Special Interim
Study Committee on State Involvement~ln and Administration of Student
p. 942
Honorable Bob Bullock - Psge Two
Loan Programs for Texas; Coordinating Board, Texas College and University System,
Final Report on Project to Evaluate Alternatives for a Student Loan Guarantee
Program (November 17, 1976). In light of the reason expressed in the legislative history
for choosing the non-profit corporate vehicle, we do not believe the legislature
intended to include the corporation within the statutes which apply to state agencies
generally. The same legislature which created the Texas Guaranteed Student Loan
Corporation knew how to indicate that a public corporation was to be considered as a
state agency. See State Bar Act, V.T.C.S. art. 32Oa-1, S2 (State Bar %ontinued as a
public corpora= and an administrative sgency of the judicial department of
government.“). Since it did not do so in the case of the Texas Guaranteed Student
Loan Corporation and since its apparent intent was to utilize the,~corporate form to
permit administrative flexibility not available to state agencies, we believe the
legislature did not intend that the corporation be construed as being a state agency.
Accordingly, it is our opinion that the corporation is not covered by articles 6252-94
6252-Q 6252-lib, 6252-llc, 6252-13a, 6252-17, 6252-19, 601b and 4413(32). We note that
our conclusion that the corporation is not subject to article 6252-19, the Tort Claims
Act, is premised on the determination that the legislature did not intend the
corporation to fall within the doctrine of governmental immunity.
We believe, however, that the corporation is subject to the provisions of the
Open Records Act, article 6252-li’a, V.T.C.S. Section 2(F) of that statute specifically
extends coverage to “every . . . corporation. . . which is supported in whole or in part
by public funds.” Since the corporation received a start up appropriation, we believe it
falb within the precise language of the Open Records Act.
You finally note that section 57.75 of the Education Code provides as follows:
All income, property, and other assets of the corporation are
exempt from taxation by the state and political subdivisions of
the state.
You ask whether this language exempts the corporation from payment of the taxes
imposed on its purchases by the Limited Sales, Excise and Use Tax Act, articles 20.01
through 20.17, Taxation - General. In our opinion, we need not answer this question,
because the corporation is in all probability eligible for one or both of the following
exemptions found in the Limited Sales, Excise and Use Tax Act itself:
(H) United States; State; Political Subdivision; Religious,
Eleemosynary Organizations. There are exempted from the
computation of the amount of the taxes imposed by this
Chapter, the receipts from the sale, lease or rental of any
taxable items to, or the storage, use or other consumption of
taxable items by:
. . . .
(5) Any organization created for religious, educational,
charitable or eleemosynary purposes, provided that no part of
p. 943
Honorable Bob Bullock - Page Three
the net earnings of any such organization inures to the benefit
of any private shareholder or individual
. . . .
(7) An organization qualifying for exemption from federal
income tax under Internal Revenue Code Section 501(&3)
provided, however, that no item purchased shall be used for the
personal benefit of any private stockholder or individual and the
items purchased must be related to the purpose of said
organization or corporation. Tax. - Gem art. 20.04.
SUMMARY
The Texas Guaranteed Student Loan Corporation was not
intended by the legislature to be a state agency. It is, however,
subject to the Texas Open Records Act and the Sunset Act. It
is exempted from payment of the taxes imposed by the Limited
Sales, Excise and Use Tax Act, articles 20.01- .17, Taxation-
General
xm
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by C. Robert Heath
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
C. Robert Heath
Eva Lcutzenhiser
p. 944