                          The Attorney                 General        of Texas
                                              October    8, 1980
  MARK WHITE
. Attorney General


                     Homer A. Poerster                           Opinion No. -251
                     Executive Director        a. ‘.
                     State Purchasing & General                  Re: Whether the state can pay
                       Services Commission                       notary license fees of its employees
                     L.B.J. Building
                     Austin, Texas 70711

                     Dear Mr. Foerster:

                           You have asked whether the State Purchasing and General Services
                     Commission may spend appropriated funds to pay the notary license fees of
                     its employees when it determines that their services as notaries public are
                     needed by the commission in the exercise of its statutory duties.

                            The answer to your question depends on (1) the existence      of general
                     legislation authorizing you to use notary services and (2) an appropriation for
                     that purpase. Tex. Const. art. III, S44; art. VlR, S6. See Attorney General
                     Opinion H-289 (1974). ln addition, a threshold question must be addressed:
                     whether the legislature     may constitutionally  authorize a state agency to
                     spend public funds for notar license fees for its employees.           Attorney
                     General Opinion O-6637 US45r held that state agencies could not constitu-
                     tionally pay the bcndirg fee fcr a notary in its employ. The notary whose
                     bond@ fee was paid by the state could provide notary services outside of
                     his state employment and receive the statutory fees fcr them. Be would
                     thus incur a private benefit at public expense, which Attorney General
                     Opinion O-6637 found to violate the following language of article RI, section
                     51 of the Texas Constitution:

                                     The Legislature shall have no power to make any
                                 grant or authorize the making of any grant of public      -’       .
                                 moneys to any indivi&aL . . .

                     See also Attorney General Opinion G5382 (1943) (art. III, S52 of constitution
                     ~prohibits county from pay@ costs -of qualifying county employees as
                     notaries public).

                           Judicial interpretations    of article RI, section 51 and similar constitu-
                     tional provisions since Attorney General Opinion O-6637 cause us to re-
                     examine its conclusion.        In Barrington v. Cokinos, 338 S.W. 2d 133 (Tex.




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1960X the Supreme Court stated that an expenditure for the direct accomplishment of
a legitimate public purpose is not rendered unlawful by the fact that a privately owned
business may be benefitted thereby. It rpheld the use of public funds for moving a
railroad right-of-way to eliminate grade crossings. See also State V. City of Austin,
331 S.W. 2d 737 (Tex. 1960) (Ipholdillg Rlccation ofe            utilities necessary for
highway impmovements); Davis v. City of Lubbock, 326 S.W. 2d 699 (Tex. 1959) (slum
clearance of lands to be developed by private ownership); Attorney General Opinion H-
403 (19741

        Brazoria County v. Perry, 537 S.W. 2d 69 (Tex. Civ. App. - Houston [lst Dist.1
1976. no writ) dealt with article IIl. section 52 which Drohibits a county from lendim its
credit or granting public funds &I an individuaL i deputy sheriff-employed by”&
county attended at public expense a train@ course required of peace officers for
certification under article 4413 (29aa), V.T.C.S. He also received his salary as a deputy
sheriff during this time. He agreed to repay the county the costs of his attendance if
he left county employment before the end of two years.                 He in fact left his
employment and went to work as a city police officer.             When the county Sought
payment under the agreement, he attacked it as a loan of credit which would be invalid
under article Ill, section 52. The court found the agreement valid and stated that the
funds paid the deputy sheriff while attendie       the course represented expenditures for
the direct accomplishment       of a legitimate public purpose. See V.T.C.S. art. 4413
(ZSaa), S7(b) (state reimbursement of political s&division f=qenses             incurred in
attendirg peace officer train&! program).

       This office hss also held in numerous opinions that the state may constitutionally
pay for employees to attend schools and conferences             for training, where the
expenditure was directly and stistantially    related to the performance of the Stetek
governmental     function.  Se, e.g., Attorney General Opinions H-133 0973) (school
trustee’s expenses in attending conference); WW-638 (1959) (employee’s expenses in
attend@      the Yale Summer School of Alcohol Studies); WW-433 (1956) (payment of
employee’s expenses, salary and emoluments during a nine month course in hospital
administration).

       We believe the reason@ of these cases and opinions is applicable to the payment
of an employee’s notary license fees. The legislature may authorize payment of the
fees, where the expenditure is directly and stistantially  related to the performance of
the state’s governmental     function. In section 3LO21 of the Natural Resources Code,
the legislature  itself determined that the General Land Office could pay the notary
license fees of an employee who provides notary public services as part of his duties.
The General Appropriations Act authorizes the Land Office to use appropriated funds
:; reimburse employees for the notary license fees and bonds.

        The statute under which the State Purchasing and General Services Commission
operates &es not expressly authorize the payment of notary license fees for the
employees    you  require to perfccm notary services. However, it is not always necessary
to tmve express authority for an expenditure which incidentally benefits the employee
while accomplishing a public Service.       See, e.g., Attorney General Opinions H-944




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Homer A.   FoeKter   -   Page Three   flrw251)




(1977) (purchase of uniforms for inspectors); H-299 (1974) (Parks and Wildlife may spend
funds to feed and house employees as part of their compensation); M-1031 (1971)
(Department of Health may purchase shoulder patches fm persons driving public and
private ambulances).

       We are informed that the commission must have documents notarized primarily
in mnnection with its invoichg and payment functions. V.T.C.S. art. 601b, S3.15. In
addition it must verify by affidavit all payroIL claims and certain other accounts
stimitted   to the comptroller and must make sworn estimates regardirg deficiencies
which occur in connection with contracts for state slqplies. V.T.C.S. arts. 4344,4351,
4359.

       Section 2.06 of article 601b, V.T.C.S., provides that the “executive director shall
manage the affairs of the commission subject to and under the direction of the
commission.” He is authorized to employ a staff necessary to administer the functions
of the commission. Sec. 2.06(c). We believe that the executive director, acting at the
direction of the commission, has implied authority to decide that employees required
to perform     notary services for the commission may be reimbursed the cost of the
license fees so long as the agency will receive adequate return for its expenditure.

       When an employee performs notary services for the commission, we believe his
notary license fees could come from the same item which provides his compensation.
The license fees are merely an additional cost of providing services required by the
commission’s statutory mandate. There are various line items that might be applied to
the payment of notary license fees in relation to the invoicing and payment function.
For example, under the head@ “Central Purchasing,” there is an appropriation for
“Clerical Support.” Under “Centralized Services” there is an item for “Purchase Audit
and ControL” General Appropriations Act, Acts 1979, 66th Leg., ch. 843, at 2608. If
notarization  is needed in connection with the services funded from these items we
believe the notary fees may also be paid from these items.

                                      SUMMARY

                The State Purchasing and General Services Commission may
              spend appropriated funds to pay the notary license fees of its
              employees who provide notary public services as part of their
              duties.  ’

                                        ,2x&-.



                                                 MARK        WHITE
                                                 Attorney   General of Texss

 JOHN W. FAINTER, JR.
 First Assistant Attorney General




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Homer A. Hoerster   - Page Four   (~251)




Prepared by Susan Garrison
Assistant Attorney General

APPROVED:
OPlNlON COMMlTTEE

C. Robert Heath, Chairman
Jon Bible
Susan Garrison
Ride Gilpin
Kathy Reed




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