The Attorney General of Texas
May 5, 1983
JIM MATTOX
Attorney General
Honorable Mary Polk Opinion No. JM-30
Supreme Court Building Chairman
P. 0. BOX 12546
Comittee on Human Services Re: Constitutionality of House
Austin. TX. 76711. 2546
51214752501
Texas House of Representatives Bill No. 1002 relating to a
Telex 9101674.1367 P. 0. Box 2910 surcharge on telephone bills to
Telecopier 5121475.0266 Austin, Texas 78769 Pay for telecommunication
devices for the deaf
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
Dear Representative Polk:
2141742.6944
You have requested our opinion regarding the constitutionality of
House Bill No. 1002, presently pending in the Sixty-eighth
4624 Alberta Ave., Suite 160
Legislature. The bill establishes a "telecommunications device
El Paso. TX. 79905-2793
9151533-3464
placement board," section 82.003, within the Texas Commission for the
Deaf, whose function it is to administer the "telecommunications
P device placement program. . . to provide telecomunications devices to
120 Dallas Ave., suite 202 eligible individuals." Sec. 82.002. A "telecomnunications device"
Houston. TX. 77002.6966
under the bill is:
7131650-0666
a device used with a basic telephone unit to
606 Broadway. Suite 312 provide a means by which deaf, hearing impaired,
Lubbock. TX. 79401-3479 or speech impaired individuals can effectively
6061747.5236
cowmunicate.
4309 N. Tenth. Suite B Sec. 82.001(6).
McAllen. TX. 76501-1665
5121662.4547 A deaf, hearing impaired, or speech impaired person who desires
to participate in the program is required to apply to the Texas
200 Main Plaza. Suite 400
Commission for the Deaf, which is empowered to issue eligibility
San Antonio, TX. 76205.2797 certificates to qualified individuals. The board is directed to
5121225-4191 distribute telecommunications devices to "telephone distribution
centers used by utilities providing telephone services," section
82.009, which in turn distribute them to individuals who present
An Equal Opportunityi
Affirmative Action Employer eligibility certificates.
House Bill No. 1002 also establishes a "telecommunications device
placement fund" as a "special fund outside the state treasury." The
fund: "is created through the imposition and collection of a
surcharge on monthly telephone bills," in an amount to be determined
by the board, but not to exceed 25 cents. This surcharge would be
payable by each consumer of telephone services. SW. 82.006. The
p. 128
,
Honorable Mary Polk - Page 2 (JM-30)
telephone utility is required to transfer to the board the funds
collected pursuant to the surcharge. The board is then empowered to
“award the purchase contract [for the telecommunications devices] to
the bidder who conforms closest to the specifications required.” The
State Purchasing and General Services Act, article 601b, V.T.C.S..
does not apply to the purchase of the telecommunications devices, but
the board must use a “substantially equivalent” bidding procedure.
Section 82.008.
You inquire whether House Bill No. 1002 is constitutional.
Article III, section 51, of the Texas Constitution provides:
sec. 51. Grants of public money prohibited;
exceptions.
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 corporations
whatsoever; provided, however, the Legislature may
grant aid to indigent and disabled Confederate
soldiers and sailors under such regulations and
limitations as may be deemed by the Legislature as
expedient, and to their widows in indigent
circumstances under such regulations and
limitations as may be deemed by the Legislature as
expedient; provided that the provisions of the
Section shall not be construed so as to prevent
the grant of aid in cases of public calamity.
Article XVI, section 6, of the Texas Constitution provides:
Appropriations for private purposes; state
participation in programs financed with private or
federal funds for rehabilitation of blind,
crippled, physically or mentally Handicapped
Persons.
(a) No appropriation for private or individual
purposes shall be made, unless authorized by this
Constitution. A regular statement, under oath,
and an account of the receipts and expenditures of
all public money shall be published annually, in
such manner as shall be prescribed by law.
(b) State agencies charged with the
responsibility of providing services to those who
are blind, crippled, or otherwise physically or
mentally handicapped may accept money from private
p. 129
Honorable Mary Polk - Page 3 (JM-30)
or federal sources, designated by the private or
federal source as money to be used in and
establishing and -Wppi*g facilities for
assisting those who are blind, crippled, or
otherwise physically or mentally handicapped in
becoming gainfully employed, in rehabilitating and
restoring the handicapped, and in providing other
services determined by the state agency to be
essential for the better care and treatment of the
handicapped. Money accepted under this subsection
is state money. State agencies may spend money
accepted under this subsection, and no other
money, for specific programs and projects to be
conducted by local level or other private
nonsectarian associations, groups, and nonprofit
organizations, in establishing and -wiwi*g
facilities for assisting those who are blind,
crippled, or otherwise physically or mentally
handicapped in becoming gainfully employed, in
rehabilitating and restoring the handicapped, and
in providing other services determined by the
state agency to be essential for the better cars
or treatment of the handicapped.
The state agencies may deposit money accepted
under this subsection either in the state treasury
or in other secure depositories. The money may
not be expended for any purpose other than the
purpose for which it was given. Notwithstanding
any other provision of this Constitution, the
state agencies may expend money accepted under
this subsection without the necessity of an
appropriation, unless the Legislature, by law,
requires that the money be expended only on
appropriation. The Legislature may prohibit state
agencies from accepting money under this
subsection or may regulate the amount of money
accepted, the way the acceptance and expenditure
of the money is administered, and the purposes for
which the state agencies may expend the money.
Money accepted under this subsection for a purpose
prohibited by the Legislature shall be returned to
the entity that gave the money.
This subsection does not prohibit state
agencies authorized to render services to the
handicapped from contracting with privately-owned
or local facilities for necessary and essential
p. 130
Honorable Mary Polk - Page 4 (JM-30)
services, subject to such conditions, standards,
and procedures as may be prescribed by law.
In Attorney General Opinion MW-22 (1979). this office said that a
program to provide assistance for payment of utility costs for needy
aged individuals was violative of article III, section 51, and article
XVI, section 6, of the Texas Constitution. The opinion declared:
Although the prohibitions of article III, section
51 and article XVI, section 6 are not applicable
if the governmental expenditure is made for a
proper public purpose, see state V. city of
Austin, 331 S.W.2d 737 (Tex. 1960). we do not
believe that Senate Bill No. 628 mav be so
characterized. This office has on *numerous
occasions held that similar direct grants on
behalf of individuals, paid solely out of state
funds, do not serve a proper public purpose. See,
*, Attorney General Opinion Nos. H-602 (1975)
(school district may not purchase personal injury
protection or uninsured motorist coverage); H-520
(1975) (county may not contribute public funds to
the construction of a facility to be used and
operated by a private corporation); C-523 (1965)
(state university may not pay on honorarium to an
individual making a commencement address); V-809
(1949) (public funds may not be expended on behalf
of victims of spastic or epileptic fits); O-2578
(1940) (public welfare grants without regard to
categories enumerated under article III, section
51-a are invalid). It is therefore our opinion
that Senate Bill No. 628 is invalid under article
III, section 51 and article XVI, section 6 of the
Texas Constitution.
The opinion noted also that article III, section 51-a, of the
constitution:
permits certain assistance programs when federal
matching funds are available. If appropriate
federal legislation were enacted, a program of the
type you suggest could be implemented by the State
of Texas. Otherwise, a constitutional amendment
would be required.
We believe that this reasoning is equally applicable to the
program which House Bill No. 1002 proposes to establish, in that it
constitutes a direct grant of valuable property to needy individuals,
paid solely out of funds collected in the name, and for the use of,
p. 131
. :,
Honorable Mary Polk - Page 5 (JM-30)
the state. In our opinion, such a program clearly contravenes article
III, section 51, and article XVI, section 6, of the Texas
Constitution. In view of this determination, we need not address your
other questions.
SUMMARY
House Bill No. 1002, which proposes to provide
telecormnunications devices for the deaf, hearing
impaired, and speech impaired, to be financed by a
surcharge on telephone bills, is violative of
article III, section 51, and article XVI, section
6, of the Texas Constitution.
Very truly you
.
J-k
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 132