Untitled Texas Attorney General Opinion

NEY GENERAL dbF TEXAS Honorable Frank Hildebrand Opinion No. M-l 148 Texas Tourist Development Agency Box 12008, Capitol Station Re: Authority of Texas Tourist Austin, Texas 78711 Development Agency to dis- burse State funds directly to entities and individuals to accelerate the development Dear Mr. Hildebrand: of Texas tourism program. We are in receipt of your recent opinion request, posing the following question: “Whether the Texas Tourist Development Agency can draw State vouchers in favor of the Confederate Air Force, the Lower Rio Grande Valley Chamber of Com- merce, and the McAllen Chamber of Commerce, to be used for their individual travel promotion during the U. S. International Transportation Exposition in Washington, D. C. 27 May - 4 June, 1972?” You have advised us that on or about April 20, 1972, Governor Preston Smith, acting upon simple resolutions unanimously adopted by the Texas Senate and House of Representatives on March 30, 1972, during the first called ses- sion of the 62nd Texas Legislature, transferred $25, 000. 00 from his office fund to the Texas Tourist Development Agency to be used “to accelerate the develop- ment of Texas’ tourism program. ” You further state that it is your understanding that the $25, 000. 00 is to be expended specifically for the following Confederate Air Force - connected purposes: “1. $2, 500 to be used directly by this agency and the Texas Industrial Commission to transport and have on display one of the TTDA’s ZO-foot travel show exhibits during Transpo. -5591- Honorable Frank Hildebrand, page 2 (M-1148) “2. $7, 500 to be disbursed equally to the Lower Rio Grande Valley Chamber of Commerce, the Harlin- gen Chamber of Commerce, and the McAllen Chamber of Commerce, to help underwrite the cost of printing special area/community literature promoting the home of the CAF to Transpo visitors. “3. $15, 000 to be disbursed directly to the CAF for a number of travel promotion projects involved in its participation in Transpo (taking a group of national travel writers from Harlingen to Washington for publicity pur- poses, and for special literature and promotion during the nine-day show. )” The 58th Legislature in 1963 (Ch. 137, pp. 370-371, General and Special Laws, H. B. 11) enacted Article 6144f, Vernon’s Civil Statutes, re- lating to the advertising of the scenic, historical, natural, agricultural, ed- ucational, recreational, and ot.her attractions of Texas and providing for the creation of the Texas Tourist Development Agency to administer and expend state funds appropriated to it t,o carry out its purposes, as shown in Section 2 as follows: “The Texas Tourist Development Agency shall be charged with the responsibility of administering funds appropriated to it in accordance with the provisions of this Act so far as possible t:o achieve the following: “(a) Promote and advertise, by means of radio, television, and newspapers and other means deemed ap- propriate, tourism t:o Texas by non-Texans, including persons from foreign countries, and to promote travel by Texans to the State’s scenic, historical, natural, agri- cultural, educational, recreational and other attractions. “(b) Coordinate and stimulate the orderly ‘but ac- celerated development of tourist attractions throughout Texas. -5592.- Honorable Frank Hildebrand, page 3 (M-1148) “(c) Conduct in the broadest sense a public re- lations campaign to create a responsible and accurate national and international image of Texas. “(d) Cooperate fully with the agency in charge of operations of the State’s park system in all matters relating to promotion of tourism. “(e) Cooperate with the Texas Highway Commis- sion in the administration of the Highway Commission’s collateral program of highway map distribut:ion and opera- tion of Travel Information Bureaus and other tourist re- lated functions conducted by the Texas Highway Commission. “(f) Encourage Texas communities, organizations, individuals to cooperate with its program by their activi- ties and use of their own funds and to collaborate with these organizations and other governmental entities in the pur- suit of the objectlves of t.his Act. ” Section 7 of the Bill recites the need for such emergency legislation; it reads, “The fact that there is no State agency designated to implement and supervise a program of attracting tourists to Texas at this time when other states are competing with our State for tourists. and that this fact has led to a de- crease in the number of tourists visitmg our State and has led to a loss of money to Texas . . ” The Attorney General’s office has heretofore upheld the constitution- ality of Article 6144f, particularly in view of Article XVI, Section 56, Con- stitution of Texas, which authorizes the expenditure of state monies for the purpose of advertising and disseminating factual informatlon about the ad- vantages and economic resources offered by the State of Texas. Attorney General Opinion No. C-216 (1964. ) -5593.. Honorable Frank Hildebrand, page 4 (M-1148) For the purposes of this opinion we will assume that the above pro- posed expenditures for advertising Texas are within the authorized govern- mental purposes set out in the Constitution and Article 6144f enacted pur- suant thereto. If so, the expendit,ures are not prohibited by Article 3, Sec- tion 51, Constitution of Texas, which forbids the Legislature from making any gift or grant of public moneys to any individuals or other entities for pri- vate or individual purposes. This constitutional provision is wholly inappli- cable where a governmental or public purpose for the expenditure exists. State v. City of Austin, 160 Tex. 348, 331 S. W. 2d 737( 1960); Brown v. Gal- veston, 97 Tex. 1, 75 S. W. 488 (1903); 52 Tex. Jur. 2d 754-757, State of Texas, Sec. 43; Attorney General Opinion No. C-530 (1965), and authorities there dis- cussed and cited In testing the validity of the expenditure, the courts will look to the character of the use for which the money is expended, not who receives it. 81 C. J.S. 1148, States, Sec. 133; Attorney General Opinion No. C-530, supra. Furthermore, as held in Attorney General Opinion No. C-719 (1966), “If a valid public purpose is being served and the State is expending money for services rendered, the character of the private agency rendering the public ser- vice does not control the validity of the expenditure. ” Consequently, the money appropriated may lawfully be expended pur- suant to a contract by the Texas Tourist Development Agency with a Chamber of Commerce or with an individual for such advertising and promotional ser- vices in accelerating the development of Texas’ tourism program. The constitutional question of the legality of the transfer of the $25, 000. 00 to your agency for the expenditures, through resort to the provisions of Section 19, Article V, Senate Bill 11, Regular Session, has not been asked for our de- cision and we will express no opinion thereon in the absence of a specific re- quest. It has long been the established policy of this office to answer in opinions only those questions presented, particularly when t,here is involved a decision concerning the constitutionality of an enactment of the legislature. This is also the policy of the Courts, and they will not pass on the question of constitutionality unless such question is properly raised and presented to them, Texas State Board - 5594- I . Honorable Frank Hildebrand, page 5 (M-1148) of Medical Examiners v. Scott, 377 S. W. 2d 104, 106 (Tex. Civ. App. 1964, rev. on other grnds., 384 S. W. 2d 686); Wood v. Wood, 159 Tex. 350, 320 S. W. 2d 807, 813 (1959). SUMMARY The Texas Tourist Development Agency may draw state vouchers in favor of the Confederate Air Force, the Lower Rio Grande Valley Chamber of Commerce, and the McAllen Chamber of Commerce pursuant to a contract with them by the Texas Tourist Development Agency, provided the warrants are drawn for the purpose of paying for the performance of services for advertising and promoting the State of Texas, its advantages and economic resources, in accelerating the development of Texas’ tourism programs. Article 6144f, V. C. S. and Article XVI, Section 56, Con- stitution of Texas. The Attorney General will not pass upon constitutional questions of legislative enactments unless asked. It follows the policy of the courts in this regard. R ctfully submitted, Prepared by Kerns Taylor Assistant Attorney General APPROVED: OPINION COMMITTEE W. E. Allen, Acting Chairman Sam Jones S. J. Aronson John Grace Wardlow Lane -5595- Honorable Frank Hildebrand, page 6 (M-1148) SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -5596-