                                                                         NEY            GENERAL
                                                         dbF TEXAS



Honorable           Frank         Hildebrand                                             Opinion        No.        M-l     148
Texas       Tourist           Development                Agency
Box     12008,        Capitol          Station                                           Re:       Authority              of Texas          Tourist
Austin,         Texas         78711                                                                Development                  Agency          to dis-
                                                                                                   burse         State         funds      directly
                                                                                                   to entities             and     individuals
                                                                                                   to accelerate                 the    development
Dear      Mr.      Hildebrand:                                                                     of     Texas          tourism         program.


             We     are       in receipt              of your       recent       opinion         request,         posing         the following
question:


                          “Whether              the     Texas        Tourist          Development               Agency
             can     draw        State        vouchers             in favor      of the        Confederate               Air
             Force,           the     Lower           Rio     Grande         Valley      Chamber            of Com-
             merce,             and    the      McAllen            Chamber            of Commerce,                to be
             used       for     their        individual           travel       promotion          during          the     U. S.
             International                  Transportation                 Exposition          in Washington,
             D. C.        27 May            - 4 June,             1972?”


             You      have       advised          us that          on or       about     April      20,     1972,         Governor              Preston
Smith,       acting       upon         simple          resolutions             unanimously           adopted             by the        Texas      Senate
and House           of Representatives                        on March           30,     1972,      during         the first           called      ses-
sion     of the     62nd         Texas        Legislature,                 transferred           $25, 000. 00 from                  his     office        fund
to the      Texas       Tourist             Development               Agency          to be used          “to     accelerate             the    develop-
ment      of Texas’             tourism          program.            ”


             You      further           state     that       it is your         understanding               that    the        $25, 000. 00 is to
be     expended         specifically              for       the    following          Confederate           Air     Force          - connected
purposes:


                          “1.         $2, 500 to be used                   directly      by this        agency           and
             the    Texas           Industrial              Commission            to transport            and      have
             on display               one     of the        TTDA’s          ZO-foot      travel         show       exhibits
             during           Transpo.




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Honorable           Frank        Hildebrand,              page     2                    (M-1148)




                        “2.       $7, 500 to be             disbursed           equally            to the   Lower
             Rio     Grande           Valley       Chamber             of Commerce,                  the Harlin-
             gen     Chamber            of Commerce,                   and    the McAllen               Chamber
             of     Commerce,              to help        underwrite            the     cost        of printing
             special        area/community                    literature         promoting              the home
             of the        CAF       to Transpo            visitors.


                        “3.       $15,      000 to be         disbursed          directly            to the      CAF
             for     a number           of travel          promotion           projects             involved        in its
             participation              in Transpo            (taking         a group         of national           travel
             writers          from      Harlingen           to Washington                for       publicity        pur-
             poses,         and for         special        literature          and promotion                during
             the     nine-day          show.       )”


             The      58th Legislature                   in 1963       (Ch.      137,        pp.     370-371,           General          and
Special      Laws,          H. B.       11) enacted           Article          6144f,        Vernon’s           Civil        Statutes,         re-
lating     to the      advertising             of the      scenic,         historical,              natural,        agricultural,               ed-
ucational,          recreational,               and ot.her        attractions            of    Texas        and providing                for    the
creation          of the    Texas          Tourist        Development                Agency          to administer              and      expend
state     funds      appropriated               to it t,o carry          out     its    purposes,              as   shown        in Section
2 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      as possible           t:o achieve            the    following:


                        “(a)      Promote               and advertise,            by means              of radio,
             television,             and      newspapers          and        other      means          deemed           ap-
             propriate,           tourism            t:o Texas         by non-Texans,                  including
             persons           from      foreign         countries,           and to promote                   travel
             by     Texans        to the       State’s       scenic,          historical,   natural,     agri-
             cultural,           educational,             recreational            and other   attractions.


                        “(b)      Coordinate              and    stimulate             the    orderly          ‘but ac-
             celerated           development               of tourist         attractions             throughout
             Texas.




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                       “(c)      Conduct             in the     broadest                 sense      a public        re-
            lations        campaign            to create          a responsible                    and     accurate
            national          and    international               image            of     Texas.


                       “(d)      Cooperate              fully     with           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          Commis-
            sion      in the administration                      of the Highway                     Commission’s
            collateral          program              of highway              map         distribut:ion           and     opera-
            tion    of Travel              Information            Bureaus                and other          tourist        re-
            lated      functions            conducted           by the            Texas          Highway         Commission.


                       “(f)      Encourage              Texas          communities,                     organizations,
            individuals             to cooperate              with         its    program            by    their       activi-
            ties    and use          of their         own       funds            and     to collaborate            with      these
            organizations                  and other          governmental                     entities      in the pur-
            suit    of the       objectlves            of t.his        Act.        ”


            Section         7 of the         Bill     recites          the       need      for     such     emergency              legislation;
it reads,


                       “The         fact     that     there      is        no State         agency         designated
            to implement               and      supervise              a program                 of attracting            tourists
            to Texas           at this       time      when       other            states        are      competing          with
            our     State      for     tourists.          and     that           this     fact    has     led    to a de-
            crease         in the      number           of tourists                visitmg         our     State       and       has
            led     to a loss          of money          to Texas                 . .      ”


            The     Attorney           General’s              office        has         heretofore          upheld        the     constitution-
ality   of Article            6144f,        particularly               in view           of Article         XVI,        Section        56,     Con-
stitution     of Texas,              which          authorizes             the     expenditure              of state         monies      for      the
purpose      of advertising                 and      disseminating                     factual       informatlon             about     the    ad-
vantages       and     economic              resources            offered               by the     State        of Texas.          Attorney
General      Opinion           No.     C-216          (1964.      )




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Honorable              Frank             Hildebrand,                 page       4                           (M-1148)




                For     the purposes                        of this        opinion         we        will     assume            that    the       above         pro-
posed          expenditures                    for    advertising               Texas            are        within       the    authorized               govern-
mental          purposes                 set    out        in the       Constitution                 and Article               6144f        enacted        pur-
suant      thereto.                If so,            the     expendit,ures                are        not prohibited                 by Article            3, Sec-
tion     51,      Constitution                   of Texas,                which       forbids           the        Legislature              from         making
any     gift     or     grant        of public                moneys           to any           individuals              or    other         entities       for        pri-
vate     or     individual                purposes.                  This       constitutional                     provision           is wholly           inappli-
cable      where         a governmental                            or     public       purpose               for     the      expenditure            exists.
State     v.     City      of Austin,                      160 Tex.            348,       331 S. W. 2d 737( 1960);                           Brown         v.     Gal-
veston,          97 Tex.             1,        75 S. W.            488     (1903);         52 Tex.            Jur.       2d 754-757,               State        of Texas,
Sec.      43;     Attorney                General             Opinion           No.       C-530             (1965),         and authorities                there          dis-
cussed          and     cited


                In testing               the     validity           of the        expenditure,                     the     courts      will       look     to the
character              of the use               for        which        the money               is     expended,              not who          receives           it.
81 C. J.S.             1148,         States,                Sec.        133;    Attorney               General           Opinion            No.     C-530,         supra.
Furthermore,                   as held                in Attorney              General               Opinion          No.      C-719          (1966),


                             “If     a valid            public          purpose           is being             served                       and
                the    State         is        expending             money          for     services                rendered,           the
                character                of the private                   agency          rendering                 the public          ser-
                vice     does            not     control            the    validity         of the           expenditure.               ”


                Consequently,                        the money              appropriated                    may       lawfully         be     expended            pur-
suant      to a contract                   by the            Texas         Tourist          Development                       Agency         with     a Chamber
of Commerce                   or     with            an individual              for       such         advertising               and promotional                       ser-
vices      in accelerating                       the        development                of Texas’               tourism           program.


                The      constitutional                      question           of the      legality               of the transfer                of the        $25,      000. 00
to your         agency             for     the        expenditures,                   through           resort           to the provisions                     of Section
19,     Article         V,         Senate            Bill     11,       Regular           Session,             has         not been          asked       for     our      de-
cision         and we         will         express             no opinion             thereon               in the       absence            of a specific               re-
quest.          It has        long         been         the        established            policy            of this        office      to answer               in opinions
only     those         questions                presented,                 particularly                when          t,here     is     involved          a decision
concerning              the  constitutionality     of an enactment                                             of the legislature.       This    is also
the policy             of the Courts,       and they will not pass                                            on the question      of constitutionality
unless          such     question                is properly                raised         and presented                      to them,            Texas          State        Board




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        Honorable           Frank     Hildebrand,                  page     5                        (M-1148)




        of Medical          Examiners              v.     Scott,      377 S. W. 2d 104,                  106 (Tex.           Civ.    App.     1964,   rev.
        on other      grnds.,         384 S. W. 2d 686);                    Wood         v.     Wood,         159 Tex.         350,        320 S. W. 2d
        807,    813 (1959).


                                                                   SUMMARY


                               The      Texas           Tourist       Development                    Agency      may       draw
                    state      vouchers            in favor         of the       Confederate              Air     Force,        the
                    Lower       Rio     Grande             Valley         Chamber              of Commerce,               and       the
                    McAllen          Chamber              of Commerce                pursuant            to a contract              with
                    them       by the     Texas            Tourist         Development                 Agency,         provided
                    the warrants              are       drawn        for    the purpose               of paying        for     the
                    performance               of    services          for       advertising            and promoting                the
                    State      of Texas,            its    advantages              and        economic          resources,            in
                    accelerating             the        development              of Texas’            tourism       programs.
                    Article         6144f,         V. C. S.        and     Article            XVI,     Section      56,      Con-
                    stitution        of Texas.


                               The     Attorney             General         will     not pass           upon      constitutional
                    questions         of legislative                enactments                unless      asked.          It follows
                    the policy          of the          courts      in this        regard.


                                                                             R            ctfully       submitted,




        Prepared        by Kerns             Taylor
        Assistant       Attorney          General


        APPROVED:
        OPINION         COMMITTEE


        W. E.      Allen,      Acting         Chairman


        Sam     Jones
        S. J.   Aronson
        John    Grace
        Wardlow         Lane

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SAMUEL          D.     MCDANIEL
Staff   Legal        Assistant


ALFRED          WALKER
Executive        Assistant


NOLA      WHITE
First    Assistant




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