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:
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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.
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^ .
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
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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
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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
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