                                The Attorney General of Texas

JIM MAlTOX                                           July 11, 1985
Attorney   General



Supreme Court Building         Honorable Oscar 8. Hauzv              Oninion I?o. 311-330
P. 0. Box 12545                Chairman
Austin, TX. 78711. 2549        Cosnuitteeon JurisI’rudence           Re: Whether the state may pro-
51214752501
                               Texas State Senate                    vide telecommunication services
Telex @lO/B74-1387
Telacoplar 51214750266         P. 0. Box 12428, Crpitol Station      to a private foundation
                               Austin, Texas   78711

714 Jackson. Suite 7W          Dear Senator Gauzy:
Dallas, TX. 75202J5C8
2141742-8944
                                    You have asked whether article 601b. section 10.07, V.T.C.S.,
                               authorizes the Sl.a.tePurchasing and General Services Commission
4S24 Alberta Ave.. Suite 180   [hereinafter the “C~~~moission”]
                                                              to contract with a private foundation
El Paso. TX. 799052793         for the utilization of the state telecommunication system. This
9151533-3464                   statute provides:

1901 Texas, Suite 700                       The cmmission may contract with each house of
Houston. TX. 77W2-3111                   the legislature, legislative agencies, counties,
713l2235886                              cities, districts. and other political sub-
                                         divisionr; and agencies not witbln the definition
                                         of ‘state agency,’ for utilization of the state
696 Broadway, Suite 312
Lubbock, TX. 794013479
                                         telecommunications system.
ew747.5239
                               Section 1.02(2) of srticle 601b, V.T.C.S., defines “state agency” as:
4309 N. Tenth. Suite B
McAllen. TX. 7850%1885                      (A) my department, comsnission,board, office,
512tSS2.4547                             or other agency in the executive branch of state
                                         gove-nt:    created by the constitution or a
                                         statute of this state;
200 Maln Plaza. Suite 400
San Antonio. TX. 79205.2797
51212254191
                                            (B) I:he Supreme Court of Texas, the Court of
                                         Criminal Appeals of Texas, a court of civil
                                         appeals, or the Texas Civil Judicial Council; or
 An Equal Opportunity/
 Attlrmatlve Action Employer                (0   ia university system or an institution of
                                         higher c:ducation as defined in Section 61.003,
                                         Texas Education Code, as amended, other than a
                                         public junior college.

                               Section 1.02(2) outlines three classes of governmental entities. The
                               entities included in section 10.07 are those governmental entities not
                               included in the deE:tnltionof state agency under section 1.02(2).


                                                       p. 1511
Eonorablc Oscar 8. Mauzy - E'age2   (JIG330)




     You inform us that the foundation is s nonprofit organization
which provides education and care for multi-handicapped children. The
foundation is 99 percent s’tate funded, and deals primarily with state
agencies such as the Texas Department of Human Resources, the Texas
Department of Mental  Realtih and Mental Retardation, and the Texas
Rehabilitation Commission. You also inform us that apparently 95 per-
cent of the foundation's long distance costs are incurred in communi-
cating with these state agencies. Finally, your letter advises that
if the foundation could cut.the cost of long distance bills, it would
save the state money. We assume that the foundation was organized
under the Texas Ron-Profit Corporation Act.     See generally V.T.C.S.
art. 1396-1.01 et seq. The answer to your first question depends on
whether the foundation is an entity within the meaning of section
10.07 with which the commission may contract.

     Section 10.07 enumerates particular types of entities which are
followed by the general term "agencies." V.T.C.S. art. 601b. 610.07.
It is this term which is ambiguous and we must resort to rules of
statutory construction. W'ten general words follow the enumeration of
a particular class of perr;c,nsor things, the general words will be
construed as applicable only to persons or things of the same general
nature or class as those enumerated. This rule is based on the
supposition that if the leE,islaturehad intended the general words to
be used in an unrestricted sense, they would have made no mention of
                          Seer Farmers' & Mechanics' Rational Bank v.
the particular classes. ---
m,      137 S.W.  1120 (Tex.  1911); see also 53 Tex. Jur. 2d 5155
Statutes
specific teTm8
          (1964).
               precz;;i i;hlr term "agencies" is restricted by the


     It is clear that all cf the enumerated entities in section 10.07
have some form of governslental status under the constitution and
statutes of this state. Hauses of the legislature, counties, muoici-
palities and districts are created and authorized by the Texas Consti-
tution. See Tax. Const. art. III, I 1 (houses of the legislature);
art. XI, 01(counties) ; art. XI, 564 6 5 (municipalities); srt. XVI,
$59 (special purpose districts); art. IX. 514-11 (special purpose
districts). Legislative agencies are created by the statutes. See
V.T.C.S. art. 542913,91 (leSJ.slativecouncil); art. 5429c (legislative
budget board); see generall:!art. 5429g. I1 (definition of legislative
agency). Therefore, we munt ascertain whether the foundation has a
governmental status for the purposes of section 10.07.

     One of the main purpcses for the creation of the state tele-
cossnunicationssystem was to reduce the cost of telephone services to
the state government. Cf. 'J.T.C.S.art. 601b. 610.03. Since 99 per-
cent of the foundationFfunds     are received as a result of govern-
mental contracts with state agencies and other governmental sources,
you suggest that it would be reasonable to conclude that the organisa-
tlon's utilization of the state communication system would have the




                              p. 1512
.

    Eonorable Oscar Il.Gauzy - Pqle 3 (~~-330)




    effect of reducing gwemmer.tal spending. Rowever, such a conclusion
    would have the effect of allcwing every orgsnization receiving public
    funds to utilize the state telecommunications system.    This practice
    would, however, be contrary t,othe expressed limiting words in section
    10.07. The statutory language is the best evidence of the legislative
    intent. Sabine Pilots Assn.   v. Lykes Brothers Steamship, Inc., 346
    S.W.2d 166 (Tax. Civ. App. -Austin 1961, no writ).

         The receipt of public funds is sufficient to subject the founda-
    tion to the Open Records act. See V.T.C.S. art. 6252-176, 5(2)(1)(F).
    We believe, however, that ':bisfact is insufficient to confer upon
    this private organization a governmental status of the class within
    the meaning of section 10.07.

         The foundation provid'as a vital service to the state.        The
    foundation operates six of 43 licensed residential treatment centers
    in Texas. Because the Texas Department of Buman Resources [TDBRI is
    named managing conservator J:Eseveral thousand children each year by
    the state courts, the foundation's facilities are among those used by
    TDHR as a placement source. Although the foundation assists in
    fulfilling this public purpose, it is a private nonprofit corporation
    created for a orivate. as dj.stinauishedfrom a surely public. purpose.
    See Miller v: David; 150 S.Wr2d 973 (Tex. -1941j.- It ~1s nit a
    Ge-ntal      agency. -Cf. --
                              Un:Lversity Interscholastic League v. Payne,
    635 S.W.2d 754, 756-57, n.4 (Tex. App. - Amarillo 1982, writ dism'd).

         Accordingly, we conclude that the foundation is not an entity
    with which the Commission may contract for the utilisation of the
    state telecommunications syllt:em.

         You also ask whether, regardless of section 10.07, the Commission
    =Y  "nonetheless contract with the foundation for utilization of the
    state telecowaunications syl;t:em."We think not. The State Purchasing
    and General Services Commisc;ionis an administrative agency created by
    statute. V.T.C.S. art. 601'bet seq. The Supreme Court has held that
    where power is granted to zir.administrative agency and the method by
    which it is exercised is I'rescribed. the prescribed method excludes
    all others and must be fall&led. Cobra Oil & Gas Corp. v. Sadler, 447
    S.W.2d 887 (Tex. 1968). Section 10.07 is the onlv authority by which
    the Commission may contract:with the foundation and for the ieasons
    stated above, we conclude that the Commission may not contract with
    the foundation for the ut:t:Lizationof the state telecommunications
    system.

                                 SUMMARY

                 Article 601b, section 10.07, V.T.C.S.. does not
              authorize the    State Purchasing and General
              Services Commissl.on to coutract with a private




                                  p. 1513
Eonorable Oscar 8. Gauzy - Page 4    (JM-330)




            nonprofit corporation for the utilization of                 the
            state telecomunic~ations system.


                                             Very   truly    your    #
                                                                 1

                                         /   _I     A-4

                                             Attorney       General of Texas

TOM GREEN
First Assistant Attorney Gewral

DAVID R. RICHARDS
Executive Assistant   Attorne],General

ROBERT GRA-i
Special Assistant Attorney General

BICR GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General

APPROVED:
OPINION COHMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillorg
Jim noellinger
Jennifer Riggs
Nancy Sutton




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