                             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




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