The Attorney General of Texas
JIM MAlTOX July 11, 1985
Attorney General
Supreme Court Building Honorable Oscar 8. Hauzv Oninion I?o. 311-330
P. 0. Box 12545 Chairman
Austin, TX. 78711. 2549 Cosnuitteeon JurisI’rudence Re: Whether the state may pro-
51214752501
Texas State Senate vide telecommunication services
Telex @lO/B74-1387
Telacoplar 51214750266 P. 0. Box 12428, Crpitol Station to a private foundation
Austin, Texas 78711
714 Jackson. Suite 7W Dear Senator Gauzy:
Dallas, TX. 75202J5C8
2141742-8944
You have asked whether article 601b. section 10.07, V.T.C.S.,
authorizes the Sl.a.tePurchasing and General Services Commission
4S24 Alberta Ave.. Suite 180 [hereinafter the “C~~~moission”]
to contract with a private foundation
El Paso. TX. 799052793 for the utilization of the state telecommunication system. This
9151533-3464 statute provides:
1901 Texas, Suite 700 The cmmission may contract with each house of
Houston. TX. 77W2-3111 the legislature, legislative agencies, counties,
713l2235886 cities, districts. and other political sub-
divisionr; and agencies not witbln the definition
of ‘state agency,’ for utilization of the state
696 Broadway, Suite 312
Lubbock, TX. 794013479
telecommunications system.
ew747.5239
Section 1.02(2) of srticle 601b, V.T.C.S., defines “state agency” as:
4309 N. Tenth. Suite B
McAllen. TX. 7850%1885 (A) my department, comsnission,board, office,
512tSS2.4547 or other agency in the executive branch of state
gove-nt: created by the constitution or a
statute of this state;
200 Maln Plaza. Suite 400
San Antonio. TX. 79205.2797
51212254191
(B) I:he Supreme Court of Texas, the Court of
Criminal Appeals of Texas, a court of civil
appeals, or the Texas Civil Judicial Council; or
An Equal Opportunity/
Attlrmatlve Action Employer (0 ia university system or an institution of
higher c:ducation as defined in Section 61.003,
Texas Education Code, as amended, other than a
public junior college.
Section 1.02(2) outlines three classes of governmental entities. The
entities included in section 10.07 are those governmental entities not
included in the deE:tnltionof state agency under section 1.02(2).
p. 1511
Eonorablc Oscar 8. Mauzy - E'age2 (JIG330)
You inform us that the foundation is s nonprofit organization
which provides education and care for multi-handicapped children. The
foundation is 99 percent s’tate funded, and deals primarily with state
agencies such as the Texas Department of Human Resources, the Texas
Department of Mental Realtih and Mental Retardation, and the Texas
Rehabilitation Commission. You also inform us that apparently 95 per-
cent of the foundation's long distance costs are incurred in communi-
cating with these state agencies. Finally, your letter advises that
if the foundation could cut.the cost of long distance bills, it would
save the state money. We assume that the foundation was organized
under the Texas Ron-Profit Corporation Act. See generally V.T.C.S.
art. 1396-1.01 et seq. The answer to your first question depends on
whether the foundation is an entity within the meaning of section
10.07 with which the commission may contract.
Section 10.07 enumerates particular types of entities which are
followed by the general term "agencies." V.T.C.S. art. 601b. 610.07.
It is this term which is ambiguous and we must resort to rules of
statutory construction. W'ten general words follow the enumeration of
a particular class of perr;c,nsor things, the general words will be
construed as applicable only to persons or things of the same general
nature or class as those enumerated. This rule is based on the
supposition that if the leE,islaturehad intended the general words to
be used in an unrestricted sense, they would have made no mention of
Seer Farmers' & Mechanics' Rational Bank v.
the particular classes. ---
m, 137 S.W. 1120 (Tex. 1911); see also 53 Tex. Jur. 2d 5155
Statutes
specific teTm8
(1964).
precz;;i i;hlr term "agencies" is restricted by the
It is clear that all cf the enumerated entities in section 10.07
have some form of governslental status under the constitution and
statutes of this state. Hauses of the legislature, counties, muoici-
palities and districts are created and authorized by the Texas Consti-
tution. See Tax. Const. art. III, I 1 (houses of the legislature);
art. XI, 01(counties) ; art. XI, 564 6 5 (municipalities); srt. XVI,
$59 (special purpose districts); art. IX. 514-11 (special purpose
districts). Legislative agencies are created by the statutes. See
V.T.C.S. art. 542913,91 (leSJ.slativecouncil); art. 5429c (legislative
budget board); see generall:!art. 5429g. I1 (definition of legislative
agency). Therefore, we munt ascertain whether the foundation has a
governmental status for the purposes of section 10.07.
One of the main purpcses for the creation of the state tele-
cossnunicationssystem was to reduce the cost of telephone services to
the state government. Cf. 'J.T.C.S.art. 601b. 610.03. Since 99 per-
cent of the foundationFfunds are received as a result of govern-
mental contracts with state agencies and other governmental sources,
you suggest that it would be reasonable to conclude that the organisa-
tlon's utilization of the state communication system would have the
p. 1512
.
Eonorable Oscar Il.Gauzy - Pqle 3 (~~-330)
effect of reducing gwemmer.tal spending. Rowever, such a conclusion
would have the effect of allcwing every orgsnization receiving public
funds to utilize the state telecommunications system. This practice
would, however, be contrary t,othe expressed limiting words in section
10.07. The statutory language is the best evidence of the legislative
intent. Sabine Pilots Assn. v. Lykes Brothers Steamship, Inc., 346
S.W.2d 166 (Tax. Civ. App. -Austin 1961, no writ).
The receipt of public funds is sufficient to subject the founda-
tion to the Open Records act. See V.T.C.S. art. 6252-176, 5(2)(1)(F).
We believe, however, that ':bisfact is insufficient to confer upon
this private organization a governmental status of the class within
the meaning of section 10.07.
The foundation provid'as a vital service to the state. The
foundation operates six of 43 licensed residential treatment centers
in Texas. Because the Texas Department of Buman Resources [TDBRI is
named managing conservator J:Eseveral thousand children each year by
the state courts, the foundation's facilities are among those used by
TDHR as a placement source. Although the foundation assists in
fulfilling this public purpose, it is a private nonprofit corporation
created for a orivate. as dj.stinauishedfrom a surely public. purpose.
See Miller v: David; 150 S.Wr2d 973 (Tex. -1941j.- It ~1s nit a
Ge-ntal agency. -Cf. --
Un:Lversity Interscholastic League v. Payne,
635 S.W.2d 754, 756-57, n.4 (Tex. App. - Amarillo 1982, writ dism'd).
Accordingly, we conclude that the foundation is not an entity
with which the Commission may contract for the utilisation of the
state telecommunications syllt:em.
You also ask whether, regardless of section 10.07, the Commission
=Y "nonetheless contract with the foundation for utilization of the
state telecowaunications syl;t:em."We think not. The State Purchasing
and General Services Commisc;ionis an administrative agency created by
statute. V.T.C.S. art. 601'bet seq. The Supreme Court has held that
where power is granted to zir.administrative agency and the method by
which it is exercised is I'rescribed. the prescribed method excludes
all others and must be fall&led. Cobra Oil & Gas Corp. v. Sadler, 447
S.W.2d 887 (Tex. 1968). Section 10.07 is the onlv authority by which
the Commission may contract:with the foundation and for the ieasons
stated above, we conclude that the Commission may not contract with
the foundation for the ut:t:Lizationof the state telecommunications
system.
SUMMARY
Article 601b, section 10.07, V.T.C.S.. does not
authorize the State Purchasing and General
Services Commissl.on to coutract with a private
p. 1513
Eonorable Oscar 8. Gauzy - Page 4 (JM-330)
nonprofit corporation for the utilization of the
state telecomunic~ations system.
Very truly your #
1
/ _I A-4
Attorney General of Texas
TOM GREEN
First Assistant Attorney Gewral
DAVID R. RICHARDS
Executive Assistant Attorne],General
ROBERT GRA-i
Special Assistant Attorney General
BICR GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINION COHMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillorg
Jim noellinger
Jennifer Riggs
Nancy Sutton
p, 1514