Arrs-.TEXAR '78T13
October 4, 1973
The Honorable Russell Cummings Opinion No. H- 120
Executive Director, Texas Mass
Transportation Commission Re: Construction of Mass
1013 San Jacinto Transportation Commission
Austin, Texas 78701 Act, Article 4413( 34), V. T. C. S.
Dear Mr. Cummings:
You have requested the opinion of this office on two questions related .
to $ 8 of Article 4413(34), Vernon’s Texas Civil Statutes, the Texas Mass
Transportation Commission Act adopted in 1969. Your two questions are: ’
1. “Does the enactment of this legislation (in 1969)
constitute being ‘authorized by the State, ’ and are we
therefore able to ‘accept and receipt’ for federal
grants? If not, does the Governor have the author-
ity to ‘authorize’ or does it require another act of
the Legislature to ‘authorize’ what this sub,section
describes? ”
2. “Can TMTC grant financial assistance to Texas
political subdivisions for planning public .mass trans-
portation systems from. appropriations made by the
Legislature for that purpose? ”
The Act calls for the creation of the Texas Mass Transportation
Conimission. Section 8(a) provides that its purposes shall be to encourage
and assist in the development of public mass transportation and to encourage
the establishment of rapid transit and other transportation media. Other
subsections of $ 8 define the authority of the Commission.
Subsection h, in part, provides:
“The Commission may accept and receipt for federal
and other grants either public or private,, for the state or
any political subdivision thereof, when authorized by the
p. 579
The Honorable Russell Cummings, page 2 (H-120)
state or subdivision, for the acquisition, construction,
improvement, maintenance or operation of public mass
transportation facilities . . . The state or the governing
body of a municipality or other political subdivision may
designate the commission as its agent to receive money
under this section and the commission acting as agent
may contract with the federal government for the acquis-
ition, construction, improvement, maintenance, or oper-
ation of public mass transportation facilities. ” (Emphasis
added)
The State is the people and all political power of the State is inherent
in them. Article 1, $ 2, Constitution of Texas; Dickson v. Strickland, 265
S. W. 1012 (Tex. 1924); Love v, Wilcox, 28 S. W. 2d 515 (Tex. 1930). The
people, in turn, exercise their inherent power through the Legislature.
Article 2, $1, Constitution of Texas; Ferguson v. Wilcox, 28 S. W. 2d 526
(Tex. 1930). Neither the Governor nor any other State officer may act
for the State unless authorized to do so either by the Constitution or by
statute. State v. Ragland Clinic-Hospital, 159 S. W. 2d 105 (Tex. 1942);
Calvert v; Adams, 388 S. W. 2d 742 (Tex. Civ. App., Austin, 1965). rev.
on other grounds, Adams v. Calvert, 396 S. W. 2d 948 (Tex. 1965). See
also Attorney General Opinions M-1141, M-1199 (1972) and Letter Advisory
No. 2 (1973).
With these general principles in mind we would answer your first
question that the enactment of the Texas Mass Transportation Commission
Act, authorizing the Commission to accept and receipt for federal grants
“when authorized” does not itself constitute the authorization. We believe
that such “authorization” or “designation” would have to be expressed in
another act of the Legislature as, for example, Article 5521b-22d, V. T. C. S.,
in which the Legislature exercised for the State the election authorized to
be covered by the Texas Unemployment Compensation Act provided in
Article 5221b-6(b)(2). Or, such authorlsation or designation may come
from a political subdivision or an agency of the State which in turn has
legislative authority to receive such grants.
To the second part of your first quesi:ion we answer that, in our opinion,
unless specificall~y authorized to do so by some statute, the Governor does
not have the authority to extend authorization on behalf of the State. Article
4413(34)(h) specifically authorizes the governing body of a municipality or
p. 580
The Honorable Russell Cummings, page 3 (H-120)
other political subdivision to designate the Commission as its agent to
receive such grants.
Your second question involves the authority of the Texas Mass Trans-
portation Commission to render financial assistance to other political
bodies for planning public mass transportation systems “from approp-
riations made by the Legislature for that purpose. ”
Section 8(d) of Article 4413( 34), V. T. C. S. , is:
“The commission may render financial assistance
in the planning of public mass transportation systems
out of appropriations made by the Legislature for that
purpose. ”
Your letter cites, as one possible source of difficulty, $ 51 of Article 3
of the Texas Constitution. This section provides:
“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 . . . ”
Section 52(a) of Article 3 denies the Legislature the power to authorize
any county, city, town or other political corporation or subdivision to lend
its credit or make such a grant of public money.
Finally, 5 6 of Article 16, in its subsection (a), prohibits the appropriation
of funds for private or individual purposes unless authorized by the Constitution.
These constitutional provisions have been the subject of many questions
and much writing. It is clear, however, that they are now interpreted to mean
only that the Legislature must appropriate funds for public purposes. That
an appropriation is also of assistance to a private individual or corporation
does not render it unconstitutional if it meets the “public purpose” test. See
for instance, State v. City of Austin, 331 S. W. 2d 737 (Tex. 1960).
With specific reference to the use of federal funds, we would call your.
attention to Attorney General Opinion M-782 (1971) where, after a thorough
review of the authorities, it was held that federal grants deposited in the
p. 581
The Honorable Russell Cummings, page 4 (H-120)
State Treasury might be distributed not only to public or State supported
institutions, but also to non-profit corporations and associations “so long
as such payment and expenditure is made in accordance with the terms
of the grant and for the purposes of the Federal grant. Such payment is
for a public or governmental purpose and would not violation Section 51 of
Article III of the Constitution of Texas. ”
From your question we assume the existence of .an appropriation “made
by the Legislature ” for financial assistance to public subdivisions. In
addition, the appropriation bills for the year ending August 31, 1973 (Senate
Bill 1, 62nd Leg., 3rd Called Se.ssion) and for the biennium commencing
September 1, 1973 (House Bill 139, 63rd Leg. ) contain provisions ($ $ 22 and
23 of Article 5 of the 1972 appropriations and $ $ 18 and 19 of Article 5 of
the 1973 appropriation bill) that funds received either as private bequests
and gifts or federal grants to State agencies “are hereby appropriated to
such agencies for the purposes for which!’ the grant, bequest or gift was
made or similar language.
It is our opinion therefore that appropriated funds or bequests, gifts
or grants for the purpose of assisting political subdivisions of the State
in planning public mass transportation systems, may be used for that
purpose by the Commission. See Attorney General Opinion M-581 (1970);
M-266 (1968).
SUMMARY
The Texas Mass Transportation Commission may
accept and receipt for federal grants when authorized
to do so either by legislative enactment ,of by an agency
to whom such grant is made. Article 4413( 34), V. T. C. S.,
does not, by itself, constitute such authorization.
The Commission may also grant financial assistance
to political subdivisions of the State of Texas for planning
p, 582
The Honorable Russell Cummings, page 5 (H-120)
public mass transportation either out of any funds which
may be appropriated to it for that specific purpose by
the Legislature or out of private bequests or gifts or
federal grants made to it for that purpose.
Very truly yours,
Attorney General of Texas
Opinion Committee
p. 583