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         .




                                       June 16, 1967


             Honorable Robert 9. Calvert                 Opinion No. M- 91
             Comptroller of Public Accounts
             Austin, Texae                               Re:     Conetruction   of Section 6
                                                                 of Article   IM of the Con-
                                                                 stitution   of Texas relating
                                                                 to State partlclpatlon     In
                                                                 programs financed with funds
                                                                 from private or federal     sour-
                                                                 ces for establlshlng    and
                                                                 equipping facllltles    for
                                                                 assisting   handicapped ln-
             Dear Mr. Calvert:                                   dlvlduals.

                        Your request    for an opinion         reads,   In part,   as follows:
                         “The following questions  are being asked as
                  a result of a new procedure which the Texas Educa-
                  tion Agency and the State Commission for the Blind
                  desire to follow in the administering     of the funds
                  received   from the Federal Government and the 25s
                  of the cost of approved projects    to be absorbed by
                  local and private organizations.
                        “Please   advise   as follows:
                        “(1)  Does Section 6, Article XVI permit the
                  withdrawing of funds from the State Treasury In the
                  form of a Grant in Aid before expenditures  contem-
                  plated under the Grant in Aid are made?
                        “(2)  Under the provisions   of Section 6, Article
                  XVI, If the fund8 provided for in this provision     are
                  placed In the State Treasury, do the departments
                  have the right to withdraw funds from the State
                  Treasury under any basis other than reimbursement
                  for expenditures   covered by agreement between the
                  State agency, Federal iovernment,    and local or
                  private organlzatlons?

                                               -412-
._   .




         Hon. Robert     9. Calvert,   page 2     (M-91)


                       Section 6 of Article   XVI of the Constitution       of Texas,
         RI) adopted    by the electorate   In 1966, reads as follows:

                    “(a)   No appropriation    for private or ln-
              dlvldual   purposes shall be made, unless authorized
              by this Constitution.      A regular statement, under
              oath, and an account of the receipts       and expenditures
              of all public money shall be published annually, In
              such manner as shall be prescribed       by law.

                   f “(b)      State agencies charged wlth’the respon-
              sibility      of providing services      to those who are
              blind,     crippled,     or otherwise physically     or mentally
              handicapped may accept money from private or federal
              sources,      designated by the private or federal        source
              as money to be used in and.establishlng             and equipping
              facllltlee       for asslstlng~thoee     who are bllnd~, crlp-
              pled, or otherwise physically           or mentally handicapped
              In becoming gainfully         employed, In rehabilitating
              and restoring        the handicapped, and In providing
              other services        determined by the state agency to be
              essential      for the better care and treatment of the
              hand lcapped.        Money accepted under this subsection
              Is state money. State agencies may spend money
              accepted under this subsection,           and no other money,
              for specific        programs and projects    to be conducted
              by local level or other private,           nonsectarian   asso-
              ciations,      groups, and nonprofit      organizations,    ln
              establishing        and equipping facllltles     for assisting
              those who are blind, crippled,           or otherwlse~physlcally
              or mentally handicapped In becoming gainfully             employed,
              in rehabilitating         and restoring   the handicapped, and
              in providing        other service6 determined by the state
              agency to be essential         for the better care or treat-
              ment of the handicapped.
                     “The state agencies may deposit money accepted
              under this subsection either in the state treasury
              or in other secure depositories.       The money may not
              be expended for any purpose other than the purpose
              for which It was given.      Notwithstanding   any other
              provision    of this Constitution,   the state agencies
              may expend money accepted under this subeection with-
              out the necessity    of an appropriation,    unless the
              Legislature,    by law, requires that .the money be.
              expended only on appropriation.       The Legislature   may
              prohibit   state agencies from accepting money under

                                          -413-
Hon. Robert 9. Calvert,      page 3   (M-91)


     this subsection  or may regulate the amount of money
     accepted,  the way the acceptance and expenditure of
     the money is administered , Andythe purposes for which
     the state agencies may expend the money. Money
     accepted under this subsection    for a purpose pro-
     hibited by the Legislature   shall.be  returned to
     the entity that gave the money.
           “?hle subsection    does not prohibit. state agencies
     authorized to render services      to the handicapped from
     contracting   with privately-owned    or local facilities
     for necessary and essential     services,   subject to
     such conditions,    stanflards, and procedures as may
     be prescribed    by law.
            The provisions of Section 6 of Article XVI of the
Constitution   of Texas having been adopted at the general election
ln 1966, there has not been an occasion for the judiciary   of this
State to construe Its provisions.
             It Is noted that under the foregoing         provisions,   state
agencies are specifically      authorized to accept money from private
or federal     sources for the purposes of assisting         physically  or
mentally handicapped lndlvlduals        and are further authorized to
spend the money accepted for specific          programs and projects     to
be conducted by local level or other private,            notiaectarlan assocla-
tlons,    groups, and non-profit     organizations    for such purpose.      The
state agencies may deposit such money either In the State Treasury
or other secure depositories.         State agencies may contract with
privately     owned or local facllltles     for necessary and essential
services.
          The Legislature   may require that the money be expended
only on appropriation.    However, we are not aware of any statute
enacted pursuant to this provision    which requires the expenditure
of money under this Section to be pursuant to an appropriation.
           In view of the explicit  language of Section 6 of Article
XVI of the Const~Ltutlon of Texas quoted above, It Is our opinion
that your questions   are overned by the authorities   cited In Attorney
General ‘a Opinion c-644 7 1966) wherein it was held:
             “You are therefore   advised that it Is the
      opinion of this office    that the Governor’s Com-
      mittee on Aging may contract.with     religious
      Institutions    for the performance of services    that
      are within the scope of authority granted by
      Article   695k, Vernon’s Civil Statutes,     and the

                                  -414-
 Hon. Robert   9. Calvert,    page 4 (M-91)


       Texas State Plan for Implementing         the Older
       Americans Act of 1965. . . .”

          _ In
             _ Attorney
                .    _ . General’s Opinion C-644 this office  relied
  on the landmark oplnlon by the Supreme Court of Kentucky /Re
  Building Commission v. Effron,   310 Ky. 355, 220 S.W.2d 83b. (1
. wherein the Court stated:
             “It Is well settled that a private agency       ’
       may be utilized    as the pipe-line  through which
       a public expenditure Is made, the test being not
       who receives    the money, but the character of the
       use for which It IS expended.”      (Emphasis aaded.)
              It Is well settled     that tax money raised ostensibly         for
 one purpose cannot be expended for another purpose,              Carroll v.
 Williams,    202 S.W. 504 (Tex.Sup. 1918).          It Is our oplnlon th t
 this principle     would apply to all public monies:          Therefore,   ionles
 acquired by this State pursuant to the provisions             of Section 6 of
 Article   XVI may be expended only for the purposes set out therein.
 In fact, Section 6 of Article         XVI specifically    so states.     Whenever
 the state agency acting pursuant to the provisions             of Section 6 of
 Artlole XVI establishes       a local program and operates through private,
 nonsectarian    assoclatlons,     groups , and nonprofit organizations,         such
 state agency Is actually       carrying out the provisions       of Section 6 of
 Article   XVI. No provision       Is contained In the above quoted Section
 of our Constitution       which requires    the expenditure of such funds
 only on a reimbursement basis.          On the contrary, Section 6 of
 Article   XVI specifically      Btates that the state agency Is authorized
 to contract with privately        owned or local facllltles      for necessary
 and essential     services.    Therefore,     the state agencies charged with
 responsibility     of providing services       to those physically    or mentally
 handicapped may cause such programs to be locally             administered
 through private,      nonsectarian    associations,    groups, and nonprofit
 organizations.      This may be accomplished        through contracts    for the
 purpose of establishing       services    determined by the state agency to
 be essential    for the better care and treatment of the handicapped
 as specifically     provided in the Constitution.
            Your questions are therefore   answered as follows:     Sec-
 tion 6 of Article   XVI permits the withdrawing of funds acquired
 pursuant thereto before expenditures    are actually made by the or-
 ganization  administering  the program at the local level.     The wlth-
 drawing of such funds Is not limited to reimbursement for expenditures,
 but are governed by the agreement between the state agency, the
 federal and local or private organizations,    provided the state agency
 determines In its discretion    that such method Is “essential   for the
 better care and treatment of the handicapped.”
Hon. Robert   S. Calvert,   page 5 (N-91)


                        'SUMMARY
            Section 6 of Article      XVI of the Cdnstltution
     of Texas authorizes      state agencies charged with
     responsibility     for providing     services  to those
     physically     or mentally handicapped to spend money
     accepted under the provisions         of Section 6 of
     Article    XVI for specific     programs and projects.
     Such programs may be conducted by "local level or
     other private,     nonsectarlannassoclatlons,      groups,
     and nonprofit     organizations      in providing services
     determined by the state agency to be essential           for
     the better care or treatment of the handicapped.
     It is not required that expenditure of state money
     be made only on a reimbursement basis, but only
     that a contractual      obligation    pursuant to the
     provisions     of Section 6 of Article XVI be created.




                                            General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Pat Bailey
Dyer Moore
Malcolm Quick
Nell Wllllams
STAFF LEGALASSISTANT
A. J. Carubbl, Jr.




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