          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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