The Attorney General of Texas
Uarch 24, 1982
MARK WHITE
Attorney General
Mr. Homer A. Foerster opinion No. MJ-461
Supreme Cowl Bulldlng Executive Director
P. 0. Box 12545
State Purchasing and General Re: whether State Purchasing
Auatln. TX. 78711.2546
512M75-2501
services commission and General Services Commission
Telex 91W674-1J87 L.B.J. Building may charge for copies of bid
Telewpier 512147543256 P. 0. Box 13047. Capitol Station tabulations after they are sent
Austin, Texas 78711 out
1607 Main Sk. suita 1400
Dsllar. TX. 752014709
Dear Mr. Foerster:
21417428944
You have requested an opinion on vhether the State Purchasing and
General Services Commission may charge for copies of bid tabulations
4524Alberta Ave., Suite 180
after they are sent out pursuant to open records requirements.
El Paso. TX. 79905-2793
SlS553.24&
The Open Records Act allows agencies to charge for reproductions
of public retards requested by members of the public. V.T.C.S. art.
1220 Dsllaa Ave.. Suite 202 6252-17a. 19. Your request statea that the State Purchasing and
Houston. TX. 770026986
General Services Commission would like to implement a computerized
71Ys5Msa5
system of supplying copies of certain documents. Charges for such
copies would be accumulated and billed to the requesting party at the
6W Broadway. Sulld 312 close of each month to provide an efficient and expeditious means of
Lubbock. TX. 79401-2479 handling the open records requests. You further state that if the
8o8n47.5255 service to a particular party proves to be voluminous and costly, a
bid deposit will be required to cover the cost of at least three
4309 N. Tenlh. Suite 6 months service.
McAllen. TX. 75501-1665
5121882-4547 The basic question which must be ansvered is whether the proposed
of billing
system after the copies have been seat out constitutes a
200 MaIn Flua, SUI10 400
violation of article III, section 50 of the Texas Constitution.
SanAntonio. TX.75505.2797 Section 50 providea:~
51212254191
The Legislature shall have no power to give
or to lend, or to authorize the giving or lending.
. AtI Equal Opptiunltyl
Afllrma:ive Action Employer of the credit of the State' in aid of. ok to any
person, association or corporation, whether
municipal or other, or to pledge the credit of
State in any manner whatsoever, for the payment of
the liabilities. present or prospective, of any
individual, association of individuals, municipal
or other corporation whatsoever.
p. 1605
.,
. Mr. Homer A. Foerster - Page 2 (MU-461)
* .
you have advised that the state auditor has relied upon Attorney
General Opinion R-2358 (1951). since 1951 to take audit exception to
other state agencies’ practices similar to that which you propose.
Attorney General Opinion R-2358 (1951) states. with regard to section
50 of article III. that “our laws contemplate, it seems, that State
offices or enterprises, the management of which requires the
collection of public funds or charges, should be operated on a cash
basis.” To defer the payments of charges for copies of public records
by means of a monthly billing of the accumulated charges is just such
an extension of the state’s credit which is constitutionally
proscribed. Although the State Purchasing and General Services
Commission might benefit from reduced administrative costs through
utilization of the deferred payment arrangement, the potential for
default of payment cannot be overlooked. Administrative expediency
cannot override constitutional limitations.
You have directed our attention to Hi%arty v. James. 453 S.W.Zd
220 (Tex. Civ. App. - Austin 1970. no writ), as precedent for the
deferred billing plan. In that case, the court of civil appeals held
that an act of the legislature which required that payment in full for
cigarette tax stamps be made within fifteen days from .the date the
stamps were received by the distributor did not violate section 50 of
article III of the Texas Constitution for the reason that it was not
an extension of credit to anyone.owing a debt to the state of Texas.
The court determined that the distributor wa8.a tax collector of a tax
upon the transaction which was collectible from the consumer. The
distributor was in much the same role as a retailer of items taxable
under the Sales, Excise and Use Tax, article 20.01, Taxation-General.
The court stated:
The Legislature, in this instance. has made, and
commendably we believe, an effort to partially
relieve the burden of the purchaser of cigarette
stamps required to pay in advance a tax which he
does not owe by granting him fifteen days of grace
within which .to recoup the cost of the stamps or
the tax which they represent.
The crucial distinction between the situation in McCarty v. James,
supra. and the plan to defer payment which you propose is that the
party requesting a copy of the public record pursuant to article
6252-17a is the very party who owes the state for the service, whereas
the person paying for cigarette stamps is merely responsible for
collecting the tax from the consumer who owes it.
Your proposal includes the requirement of a deposit, pursuant to
section 11 of article 6151-17a to cover the coat of at least three
months service from parties whose request for copies are voluminous
and costly. Section 11 is captioned “Bond for payment of costs for
preparation of public records or cash prepayment,‘* and provides:
p. 1606
. .
-. ‘>
.a Mr. Homer A. Foerster - Page 3 (MW-461)
A bond for payment of costs for the
preparation of such public records, or a
prepayment in cash of the anticipated costs for
the preparation of such records, may be required
by the head of the department or agency ,a~ a
condition precedent to the preparation of such
record where the record is unduly costly and its
reproduction would cause undue hardship to the
department or agency if the costs were not paid.
The bond or cash prepayment provision is a measure designed to protect
an agency from the unnecessary use of man-hours, equipment, and
supplies in preparing public records in the event that the requesting
party withdraws its request or refuses to pay for the records when
they are ready. The procedure is completely in keeping with the
purpose of article III, section 50 of the Texas Constitution. Such a
procedure may be implemented by the State Purchasing and General ,
Services Commission.
SUMMARY
Article III. section 50 of the Texas
Constitution, prohibits the State Purchasing and
General Services Commission from deferring until
the end of each month the collection of charges
for copies of public records. The commission may
require a deposit to cover the cost of copying
public records pursuant to section 11 of article
6252-17a. V.T.C.S.
: Attorney General of Texas
JOHNW. FAINTER, JR.
First Assistant Attorney General
RICHARDE. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Susan L. Garrison, Chairman
Robert Gauss
Rick Gilpin
p. 1607