Untitled Texas Attorney General Opinion

THEATTORNEY GENERAL OF TEXAS Honorable Frank Hlldebrand Executive Director Texas Tourist Development Agency Box TT; Capitol Station Austin, Texas 78711 Opinion NO. c- 216 Re: Construction of Section 56 of Article XVI of the Constltutiorlof Texas and House Bill 11, Acts of the 58th Legislature, Regular Session, 1963, Chapter 137, Dear Mr. Hildebrand: page 370. Your request ~for an opinion on the above subJect matter asks the following questions: "1. Does Article 16, Section 56 of the Texas 'Constitutionconstitute a legal inhibition on the use of advertising funds appropriated to this Agency? "If the answer to this question is in the affirmative, we respectfully request that you answer the following questions: "1. what does the terni 'periodicals' in,Artidle 16, Section 56, encompass? Does It, for example, permit the Agency's use of radio, television, outdoor and other media as well as newspapers and magazines? "2. What constitutes 'national circu- lation' within the meaning of Article 16, Section 56? What circulation 'yardstick' should the Agency adopt in buying apace and time?" Section 56 of Article XVI o$ the Constitution of Texas provides as follows: -1038- Hon. Frank Hildebrand, page 2 (c-216) "The Legislature of the State of Texas shall have the power to appropriate money and establish the procedure necessary to expend such money for the purpose of developing ln- formation about the historical, natural, agrl- cultural, 'Industrial,educational, marketing, rec,reatlonaland living resources of Texas, and for the purpose of informing persons and corpo- rations of other states through advertising in periodicals having national circulation; and the dissemination of factual information about the advantages and economitiresources offered by the State of Texas;~providlng, however, that neither the name nor the picture of any living state official shall ever be used in any of said advertising, and providing that the'Legislature may require that any sum of money appropriated hereunder shall be matched by'an equal sum paid into the State Treasury from private sources be- fore any of said money may be expended." House Bill 11, Acts of the,58th Legislature, Regular Ses- sion, 1968 Chapter 137, page 370, codified in Vernon's as Article 614&f, Vernon's Civil Statutes, creates the Texas Tour- ist Development Agency. Section 2~of House Bill 11 prescribes the duties ,of the Texas Tourist Development Agency, 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 aspossible to achieve the following: "(a) Promote and advertise, by means of ,radlo, television, and newspapers 'and other means deemed appropriate, tourism'to Texas by~non- Texans, Including persons from foreign countries, 'and to promote travel by Texans to the State's scenic, historical,,natural, agricultural, educa- tional, recreational and other attractions. "(b) Coordinate and stimulate the orderly but accelerated development of tourist attractions throughout Texas. "(c) Conduct in the broadest sense a pub- lic campaign to create a responsible relations and accurate national and international image of Texas. -1039- ^ . Hon. Frank Hildebrand, page 3 (c-216) "(d) Cooperate ~fullywith 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 Commission In the administration of the High- way Commission's collateral program of high- way map distribution and'operation of Travel Information Bureaus and other tourist 'related functions,conducted by the Texas Highway Com- mission. "(f) Encourage Texas communities, organizations, and individuals to cooperate with its program by their activities and use of their own funds and to collaborate with these organizations and other govern- mental entitles in the pursuit of the objec- tives of this Act." In Attorney General's Opinion C-25 (1963), It was held: "It appears from the wording of Section 56 of 4rticle XVI that the Legislature has the power to appropriate money'for three ~purooses: (1) 'for the purpose,of developing information aboutthe historical, natural, agricultural, industrial, educational, marketing, recreation- al and llving'resources of Texas . . .I; and (2) 'for the purpose of'informing persons and, corporations of other'states through advertis- ing in periodicals having national 'circulation I and (3) 'the dissemination of factual inhogation about the advantages and economic resources offered by the State of Texas . . .' It Is clear that purpose (1) does not pertain to advertising, but applies only to the develop- ing of certain information. Where persons and corporatdons of other states are to be informed about the advantages and economic resources of Texas through the medium of advertising in perl- odicals, such periodicals must have a national circulation; however, this limitation Is clear- ly applicable only to this particular medium. "You are, therefore, advised that the Legislature may authorize the expenditure of money under Section 56 of Article XVI of -1040- Hon. Frank Hildebrand, page 4 (C-216) the Texas Constitution for the purpose of the dissemlnatlon of factual informa- tion about the advantages and economic resources offered by the State of Texas. The only limitation placed upon the Legis- lature as to its choice of the method of the dissemination of factual information about the advantages and economic resources offered by the State of Texas is that when the advertising medium chosen for the purpose of disseminating such Information to persons and corporations of other states is a periodi- cal, it must be one of national circulation." In view of the foregoing, you are advised that 'the ex- penditure of advertising funds appropriated to the Texas Tour- Lvt'Development Agency must be expended in complianceivith Section 56 of Article XVI of the Constitution of Texas. The limitation of advertising in'periodicals having national circu- lation applies only to that particular medium and does not ap- ply to the use of radio, television, outdoor or other media, The term "national circulation" is not defined by the provisions of Section 56 of Article XVI of the Constitution of Texas and there is no particular yardstick that can be ap- plied precisely. The determination of whether or not a partlcu- lar periodfcal meets 'this requirement is a question of fact to be determined by your agency. If the advertising Iiiquestion Is designed to appeal to the public at large then the periodical should be circulated generally throughout the United States; how- ever/if the advertising in question is directed toward a particu- lar ethnic group or a group having a~common economic, social, reoreational'or avocational interest, it Is our opinion that the spirit and Intent of this constitutional provision would be met by 'placing such advertising in a periodical 'which ie hlrculated generally among such 'group throughout the'united States, SUMMARY The Texas Tourist Development Agency may ex- pend monies appropriated for advertising by the use of radio, television, outdoor and other media, as well as newspapers and maga- zines. Whenever a periodical Is used for the purpose of advertising, such periodical must -1041- Hon. Frank Hildebrand, page 5 (c-216) be one of national circulation. Yours very truly, WAGGONER CARR Attorney General JR:ms APPROVED: OPINION COMMITTEE W; V; Geppert, Chairman w. 0. shultz Rbbei-tI&wis J. C. Davis APPROVED FOR TRF'ATTORNEY GENERAL By: Stanton Stone -1042-