.-
TEEEAYYIWEZNEY GENERAL.
~,PTEFCAS~
March 31, 1966
Honorable John Connally
Governor of Texas
State Capitol
Austin, Texas
Attention: Mrs. Carter Clopton
Executive Director
Governorts Con&ttee on Aging
Opinion Co. C-644
Re: Whether contracts between the Governor's
Committee on Aging and certain enumerated
entitles can be legally entered into for
the purposes stated.
Dear Governor Connally:
You have requested the opinion of this office a.6 to
the subject question. In this connection, the following is
quoted from your letter:
"Pursuant to Article 695k, Vernon's
Civil Statutes, enacted by the 59th Legls-
lature, this office has adopted and promul-
gated the Texas State Plan for Implementing
the Older Americans Act of 1965. In carry-
ing out this Plan in accordance with both
State and Federal purposes, it l.s anticipated
that this office will enter into contracts
with other State agencies, local political
subdivisions, private individuals, corpora-
tions and institutions, whereby these entl-
ties will perform services ln keeping with
the requirements of Article 6sk, and the
Texas State Plan.
"It is anticipated that some of the
private agencies with which we contract
will be either church-operated or connected
with religious institutions. These contracts
will cover a wide range ofactivities, and
can include the conduct of training classes
for field workers, the development of par-
ticular programs to benefit the aging, and
-3228;
Hon. John Connally, page 2 (C- 644)
many other activities in this specialized
field .
“It haps been suggested that this office
may not legally obligate itself nor pay out
State fundsto a,rellglous organization, such
being in violation’ of the constitutional prln-
ciple of separation of church and state. How-
ever, in the instant case we would point out
that there will be no grants or gifts of any
kind made to any private individual’, corpora-
tion, agency or Institution, but that contracts
will be entered into and all payments will be
made solely on the basis of services rendered
to the State. We would very much appreciate
the opinion of the Attorney General’s Office
as to whether contracts for the purposes set
out above would be proper, and whether the con-
tract amounts could properly be paid out of
State funds. ”
At the outset we must observe that no difficulty is
presented when the Governor’s Committee on Aging, contracts
with other State agencies, local political subdivisions, or
private individuals, corporations and institutions that have
no religious connection. Such contracts are within the author-
ity granted by Article 695k, Vernon’s Civil Statutes, and the
State is in the position of making payment for value received.
The essential problem presented for our determination Is
the propriety of the Governor’s Committee on Aging contracting
with an institution or corporation governed by a religious sect
or denomination.
Article I, Section 7, of the Texas Constitution, reads
as follows t
“Ho money’shall be appropriated, or drawn
from the Treasury for the benefit of any sect,
or religious society, theologICal or religiOUS
seminary; nor shall property belonging to the
State be approptilated for any such purpose.”
The Texas State Plan for Implementing the.Older Americans Act
of 1965 is drafted In such a way that the Federal funds made
avallable are paid out through the State In the form of pay-
ments for services rendered under contract. The question thus
becomes a matter of determining tither State payment ?or ser-~
vices rendered by an institution with a religious, affillatlon
or connection constitutes money “drawn from the Treasury for
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Bon. John Connally, page 3 (C-644)
the benefit of any sect, or religious society, theological or
religious seminary." There is no Texas case law upon this
question, and there has been only one prior Attorney General's
opinion issued that has directly met this issu8.
Attorney General's Opinion O-2412 (1940) W(LPwritten
in response to a question from the Director of the Vocational
Rehabilitation Division of the State Department of Education.
That agency was authorized to assist in the rehabllltation of
disabled persons in many ways, .one of which was to pay their
tuition at a college or university. Several lndividuals had
expressed a desire to attend a denomlnatlonal school, such as
Baylor, Southern Methodist or Texas Christian, and the Attorney
General's office was asked whether the payment of these handl-
capped persona' tuition to such schools would constitute a
benefit to these sectarian institutions in violation of Article
I, Section 7, of the Texas Constitution. It was concluded, in
Opinion 2412, that such payment of tuition would not be a direct
benefit, but would be an indirect one that was forbidden bv the
Constitution. In eupport of this proposition, the opinion cited
thth,~m;~o;~;;n~ ;;; ;g;;p 90 Tex. 205, 38 S.W. 24 {X.&36).
on of whether a county's indebted-
ness to the State authorized the Comptroller of Public Accounts
to withhold payment of the county's pro rata share of the avail-
able school fund. The law expressed by the Supreme Court regard-
ing this question has no bearing upon a question of what consti-
tutsa money paid for the benefit of a religious organization.
O-2412 was, in fact, based upon two cases from other jurisdlc-
tions: Synod of Dakota vs. State, 2 S.D. 366, 50 N.W. 632 (1891),
and Wlll‘iams vs. Stanton Gramommon School District, 173 Ky.
708,ym??. 3Om. Both of these cases are well-written
expressions of the l&w and philosophy of their era. The Synod
case is still the law in South Dakota, but the Williams case has
been superseded-in Eentucky.
The Sunreme Courtcf Kentuckv issued a 1andlPark Opinion
vs: Effron, 310 IQ. 355; 220 S.W.
toxte, the State proposed
to pay tuition and certain other benefits to assist in the opera-
tion of a school of nursing operated by a Catholic. hospital.
Although we have the added feature of contract, the Kentucky situ-
ation was essentially like ours, in that their statute was enact-
ed to enable the State to make use of Federal funds made available
for social purposes. The essential reasoning of Effron is express-
ed in the following sentence, taken frcnn page 83T
"It is well settled that a private agency
may be utilized as the pipe-line through which
a public expenditure is made, the teat being not
who receives the money, but the character of the
use for which it is expended." (Pmpha8is added)
3130-
Hon. John Connally, page 4 (C-644)
Then, from page 838:
“Manifestly, the framers of our Constitu-
tion did not intend to go so far as to prevent
a public benefit, like a hospital in which the
followers of all faiths and creeds are admitted,
from receiving State aid merely because it was
originally founded by a certain denomination
whose members now serve on Its board of trus-
tees.”
The Effron case, supra, was the basis for the holding in
In re Opinion of the Justices, 113 A.2d 114 (Supreme Court, New
Iiampshire, 1955), wherein the Court discussed the conduit theory
of Effron, and made the following observations: I~
“The purpose of the grant proposed by
House Bill 327 Is neither to aid any parti-
cular sect or denomination, nor all denomi-
nations, but to iurther the teaching of the
science of nursing. . . . the public funds
will not be applied to sectarian uses. If
some denomination incidentally derives a
benefit through the release of other funds
for other uses,, this result Is lmmaterlal.”
Since the Issuance of the Effron decision, other Jurisdlct%ons
have also cited the case withapproval and have adopted i$s
reasoning. See Cral vs. Mercy Hospital-Street Memorial,,‘209
Miss. 427 45 So.dog (l’sRO)* Le# vs. Ado-m 14,
83 A.2d 185 (1951); Roe vs. Keiv c 42 m.TIrgl, 199 ~:$:'83 2
(1964). And it shoume pom& that Kentucky, New.Bamp-
shire, Mississippi, Connecticut and New Jersey all have coneti-
tutlonal provisions substantially identical to that of Texas as
regards aid or support to religious institutions.
With a very detailed constitutional provision regarding
aid to a religious institution, the Supreme Court of South
Carolina decided, apparently with regret, that it could not apply
the rationale of,Effron to its constitutional roblem. Parker
vs. Bates, 216 Som52, 56 S.E.2d 723 (19493. -
After a careful analysis of Attorney Oeneralls Opinion
O-2+12 (l$+O), we are of the opinion that Its base rested COm-
pletely on the persuasive, but not binding, law of other jUria-
dictions.
Based upon the authorities cited herein, It ie, the opin-
ion of this .office that Attorney General’s Opinion O-2412 (190)
should be, and it is hereby overruled. It is the further opinion
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. I
lion.John Connally, page 5 (C- 644)
of this office that the rationale of Kentucky Building Commis-
sion vs. Effron, cited supra, is valid as a basis for inter-
wing Am I, Section 7, Texas Constitution.
You are therefore advised that it is the opinion of
this office that +&e Governor's Committee on Aging may contract
with religious Institutions for the performance of services
that are within the scope of authority granted by Article 695k,
Vernon's Civil Statutes, and the Texas State Plan for Implement-
ing the Older Americans Act,of 1965. You are further advised
that any such payment of State funds may only be made to any
private entity pursuant -to contract, and after performance of
the service required by the said contract.
SUMMARY
It is the opinion of this office that the
Governor's Committee on Aging may contract
with religious institutions for the perform-
ance of services that are within the scope
of authority granted by Article 695k, Vernon's
Civil Statutes, and the Texas State Plan for
Implementing the Older Americans Act of 1965.
Any such payment of State funds may only be
made to any private entity pursuant to con-
tract, and after performance of the service
required by the said contract.
Yours very truly,
WAGGQWER CARR
Attorney General.
MLQrms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chalrman
Gordon Rouser
Pat Bailey
Kerns Taylor
Roger Tyler
APPROVED FOR TBE ATTORNEY GENERAL
By: T. B. Wright
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