Untitled Texas Attorney General Opinion ( 1971 )

AUSTIN. TEXAS 78711
February4, 1971
Honorable Preston Smith Opinion No, M-782
Governor of Texas
Capitol Building
~^ Re: Questions relative to dis-
Austin, Texas 78711 bursement of Pedera.1funds
granted the ,Stat,e
pursuant
to the Omnibus Crime ~Control
Dear Qovernor Smith: and Safe Streets Act of 1968.
,Yourrequest for an opinion asks the follorPng
questions:
"(1) The Texas Criminal ,JusticeC~ouncllre-’
spectfully re,questsan opinion as to whether or
not the State Comptroller ,can i,ssuea warrant
payable to a non-profit agency, such as the
Vocational Guidance ,Semice, when such war%??&
has been requeste,dby the Texas Criminal Justice
Council in the normal ``aarseof their 'business
to be ,drawn on federal funds deposIted with the
State Treasurer and the payment of such funds
is to be mad:e for the purposes of a dls:cretlo~nary
grant of Federal monies and by authority of and
in compliance with P.L. 90-'351,Title I, Omnibus
Crime Control and Safe Streets Act of 1968 and
to a.cc,ompllshthe objectives of the 197,OState
Plan as approved by the Law Enforcement Assistance
Administration.
"(2) The Texas Criminal Justice Counc1l,re-
spectfully remquestsan .oplnionas to whether or
not the State Comptroller can issue a warrant
payable to an educational institution, to-wit:
a non-state supported university, college or
junior college either within or without the State
of Texas, such as Southern Methodist University,
when the warrant is requested by 'theTexas Criminal
Justice Council In the normal course of busln~ess
to be drawn on Federal funds deposited with the
State Treasurer and such payment is to be made to
the educational institution for educational and/or
-3807-
Hon. Preston Smith, page 2 (M-782)
training services to be rendered in accordance with
the terms of the grant application approved by the
Texas Criminal JuStIce Council and for the purposes
of the Federal grant and by authority of and In
compliance with P.L. 90-351, Title I, Omnibus
Crime Control and Safe Streets Act of 1968 and to
accomplish the objectives of the State Plan as ap-
proved by the Law Enforcement Assistance Adminlstra-
tlon.
“(3) The Texas Criminal Justice Council re-
.spectfullyrequests an opinion as to whether or
not the State Comptroller can issue a warrant pay-
able to a non-profit corporation, such as the Texas
District and County Attorneys Educational Founda-
tion, when the warrant Is requested by the Texas
Criminal Justice Council In the normal course of
their business to be drawn on Federal,funds de-
posited with the State Treasurer and such payment
to the non-profitcorporation Is to be made for
educational and/or training services rendered in
accardance with the terms,of the grant application
approved by the Texas Criminal Jus,ticeCouncil and
for the purposes of the,Federal grant and by au-
thority of and in compliance with P.L. 90-351,
Title I, Omnibus Crime Control and Safe Streets
Act of 1968 and to accomplish the objectives of
the 197~0State Plan as approved by the Law En-
forcement Assistance Administration.
"('I)The Texas Criminal Justice Council re-
spectfully requests an opinion as to whether or not
the State Comptroller can issue a warrant payable
to an Individual or individuals, who are employees
or elected officials in the criminal justice system,
as reimbursement for travel, subsistence, tuition,
fees, costs of materials used, etc., previously ln-
curred for educational and/or training purposes when
such warrant is requested by the Texas Criminal
Justice Council In the normal course of their
business to be drawn on Federal funds deposited
with the State Treasurer and such payment is to
be made In accordance with the terms of the grant
application approved by the Texas Criminal Justice
Council and for the purposes of the Federal grant
and by authority of and In compliance with P.L.
90-351, Title I, Omnibus Crime Control and Safe
-3808-
Hon. Preston Smith, page 3, (M-782) .'
Streets Act of 1968 and to accomplish the objectives
of the 1970 State Plan as approved by the Law En-
forcement Assistance Administration."
The Texas Criminal Justice Council Is a planning agency
in the Governor's office,created by an Executive,Order dated
October 18, 1968, charged with the administration and dlsburse-
ment of Federal funds made available through themLaw~Enforcement
Assistance Admlnlstration,,provided for by the provisions of P.L.
90-351, Title I (Omnibus Crime Control and Safe Streets Act of
1968). The Texas Criminal Justice Council Is financed by funds
appropriated to the Governor In Item 11 of the current Qeneral
Appropriations Act to the Oovernor's office which reads as follows:
"For the Years Ending
August 31, August 31,
1970 1971
"11. To provide from the
General Revenue Fund for
special planning projects
and studies including but
not limited to Comprehen-
sive Health Planning,,Texas
Criminal Justice Council,
Coastal Resources Study,
State Economic Study, Man-
power Development, and
Governor's Committee on
Human Relations, Including
salaries of exempt and clas'sl-
fled poaltions, professional
fees and services, part-tlme
and,seasonal help, travel,
consumable supplies and
materials, current and re-
curring operating expenses,
capital outlay, planning
grants, and all other actlvl-
ties for whkh no other pro-
visions are made.
$ 585,000 $ 644,728
-& U.B."
Section 25 of Article V of the current General Appro-
priations Act provides In part as follows:
-3809-
Hon. Preston Smith, paBe 4 (M-782)
."A11 funds received from the United States
Government by the agencies of the State named In
this Act are hereby appropriated to such agencies
for the purposes for which the Federal grant, al-‘
location, aid, or payment was made, subject to the
provisions of this Act . . . ."
Each disbursement contemplated by your four questions
Is In compliance with planning grant applications which have been
approved and is for the purposes for which the Federal grant is
made. Therefore the Comptroller may Issue such warrants unless
prevented by some constitutional or statutory restriction.
In view of the provisions of Section 25 of Article V
of the current General Appropriations Act, above quoted, Federal
grants received by the Texas Criminal Justice Council are de-
posited in the State Treasury to be expended for the purposes
for which the grant was made.
Section 6 of Article VIII of the Constitution of Texas
DrOVldeS that no money shall be drawn from the Treasury but in
pursuance to specific-appropriations made by law. Pickle v.
Finley, 91 Tex. 484, 44 S.W. 480 (1898). See also Si
Steele, 57 Tex. 200 (1882); Linden v. Finley,.92 Tex. 451,
S.W. 578 (1899).
In the instant case the moneys in question have been
appropriated for the purposes of the Federal grant and such
appropriation authorizes the withdrawal of the money from the
Treasury for such purposes. The only question remaining Is
whether the Issuance of a warrant payable to a nonprofit agency
such as the Vocational Guidance Service, a nonprofit United Fund
agency In Houston, Texas, providing comprehensive rehabilitative
services to adjudicated delinquent boys and preventive services
for other boys with a potential for delinquency, violates the
provisions of Section 51 of Article III of the Constitution of
Texas, prohibiting the "making of any grant of public moneys to
any Individual, association of Individuals, municipal or other
corporations whatsoever . . ." It is well settled that the pur-
pose of this section Is to prevent the application of public
funds to private purposes. State v. City of Austin, 160 Tex. 348,
331 S.W.2d 737 (1960); City of Aransas Pass v. Keeling, 112 Tex.
339, 247 S.W. 818 (1923); Jones v. Williams, 121 Tex. 94, 45
S.W.2d 130 (1931); Byrd v. City of Dallas, II8 Tex. 28, 6 S.W.2d
738 (1928).
A similar question regarding disbursement of Federal
-3810-
Hon. Preston Smith, page 5~ (M-.782)
funds deposited with the State Treasury to'colleges and uni-
versities for teacher training was involved In Attorney General's
Opinion c-474 (1965). It was there held that payments to colleges
and universities which provided teacher training under a State
plan approved by the Texas Education Agency and the United States
Government were valid and that such payments would not violate
Section 51 of Article III of the Constitution of Texas. After
reviewing authorities It w&s held:
"Thus it appears that your Inquiry re-
solves Itself Into a question of whether the,
payment of these funds to enable teachers to
obtain professional training in areas of mental
retardation, emotional dlsturbance,~speech and
hearing Impairment, whereby,they will be better
trained .to.teach such exceptional children, Is
logltiallywithin the meaning of applying 'public
funds to a private purpose.' We think that It
Is not."
Likewise it was held In Attorney Qeneral'~sOpinion
V-1067 (1950):
"In determining whether an expendlture,of
public monies constitutes a gift or a grant ,of
public monies, 'the primary question Is whether
the funds are used for a "public" or "private"
purpose. The benefit of the State from an ex-
penditure for a "public purpose" is in the nature
of consideration and the funds expended are there-
fore not a,alft even though private DerSOns are
benefited therefrom.' Alameha County v. Jan&en,
16 Cal. 2d 276, 106 P.2d 11, 130 A.L.R. 1141 Trvub)."
In view of the foregoing we are of the opinion that the
Issuance and payment of warrants outlined In your four questions
do not violate Section 51 of Article III of the Constitution of
Texas. You are accordingly advised that payments may not only be
made to public or state supported institutions, but also to non-
profit organizations, to non-state supported universities,
colleges and junior colleges, as well as to Individuals who are
employees or elected officials In the criminal justice system,
provided the payment and expenditure of such warrants is for
the purpose for which the Federal grant Is made.'
Your request as well as the accompanying documents
outline material facts showing such payment Is to be made in
-3811-
. . .
Hon. Preston Smith, page 6 (M-782)
accordance with the terms of each grant application and for the
purposes of the Federal grant and by authority of and In com-
pliance with the Omnibus Crime Control and Safe Streets Act of
1968. Therefore, each question Is answered In the affirmative.
SUMMARY
Pursuant to the provisions of Section 25 of
Article V of House Bill 2, Acts 61st Leg. 1969,~2nd
C.S., disbursement of Federal grants deposited In
the State Treasury pursuant to the provisions of
P.L. 90-351, Title I, Omnibus Crime Control and
Safe Streets Act of 1968, can be made by issuance
of warrants by the Comptroller of Public Accounts
payable not only to public or state supported ln-
stitutlons, but also to nonprofit corporations
and associations, non-state supported educational
Institutions, and Individuals who are employees
or elected officials In the criminal justice
system so long as such payment and expenditure
is made In accordance with the terms of the grant
application and for the purposes of the Federal
grant. Such payment Is for a public or govern-
mental purpose and would not viol e Section 51
of Article III of the Constitut of Texas.
General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Ben Harrison
Llnward Shivers
Austin Bray, Jr.
James Broadhurst
-3812"
Hon. Preston Smith, page 7 (M-782)
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-3813-