                       AUSTIN.   TEXAS    78711



                         February4, 1971


Honorable Preston Smith          Opinion No, M-782
Governor of Texas
Capitol Building
               ~^                Re:   Questions relative to dis-
Austin, Texas 78711                    bursement of Pedera.1funds
                                       granted the ,Stat,e
                                                         pursuant
                                       to the Omnibus Crime ~Control
Dear Qovernor Smith:                   and Safe Streets Act of 1968.
          ,Yourrequest for an opinion asks the follorPng
questions:
          "(1) The Texas Criminal ,JusticeC~ouncllre-’
     spectfully re,questsan opinion as to whether or
     not the State Comptroller ,can i,ssuea warrant
     payable to a non-profit agency, such as the
     Vocational Guidance ,Semice, when such war%??&
     has been requeste,dby the Texas Criminal Justice
     Council in the normal ~~aarseof their 'business
     to be ,drawn on federal funds deposIted with the
     State Treasurer and the payment of such funds
     is to be mad:e for the purposes of a dls:cretlo~nary
     grant of Federal monies and by authority of and
     in compliance with P.L. 90-'351,Title I, Omnibus
     Crime Control and Safe Streets Act of 1968 and
     to a.cc,ompllshthe objectives of the 197,OState
     Plan as approved by the Law Enforcement Assistance
     Administration.
          "(2) The Texas Criminal Justice Counc1l,re-
     spectfully remquestsan .oplnionas to whether or
     not the State Comptroller can issue a warrant
     payable to an educational institution, to-wit:
     a non-state supported university, college or
     junior college either within or without the State
     of Texas, such as Southern Methodist University,
     when the warrant is requested by 'theTexas Criminal
     Justice Council In the normal course of busln~ess
     to be drawn on Federal funds deposited with the
     State Treasurer and such payment is to be made to
     the educational institution for educational and/or


                                 -3807-
Hon. Preston Smith, page 2      (M-782)


     training services to be rendered in accordance with
     the terms of the grant application approved by the
     Texas Criminal JuStIce Council and for the purposes
     of the Federal grant and by authority of and In
     compliance with P.L. 90-351, Title I, Omnibus
     Crime Control and Safe Streets Act of 1968 and to
     accomplish the objectives of the State Plan as ap-
     proved by the Law Enforcement Assistance Adminlstra-
     tlon.
         “(3) The Texas Criminal Justice Council re-
    .spectfullyrequests an opinion as to whether or
    not the State Comptroller can issue a warrant pay-
    able to a non-profit corporation, such as the Texas
    District and County Attorneys Educational Founda-
    tion, when the warrant Is requested by the Texas
    Criminal Justice Council In the normal course of
    their business to be drawn on Federal,funds de-
    posited with the State Treasurer and such payment
    to the non-profitcorporation Is to be made for
    educational and/or training services rendered in
    accardance with the terms,of the grant application
    approved by the Texas Criminal Jus,ticeCouncil and
    for the purposes of the,Federal grant and by au-
    thority of and in compliance with P.L. 90-351,
    Title I, Omnibus Crime Control and Safe Streets
    Act of 1968 and to accomplish the objectives of
    the 197~0State Plan as approved by the Law En-
    forcement Assistance Administration.
          "('I)The Texas Criminal Justice Council re-
     spectfully requests an opinion as to whether or not
     the State Comptroller can issue a warrant payable
     to an Individual or individuals, who are employees
     or elected officials in the criminal justice system,
     as reimbursement for travel, subsistence, tuition,
     fees, costs of materials used, etc., previously ln-
     curred for educational and/or training purposes when
     such warrant is requested by the Texas Criminal
     Justice Council In the normal course of their
     business to be drawn on Federal funds deposited
     with the State Treasurer and such payment is to
     be made In accordance with the terms of the grant
     application approved by the Texas Criminal Justice
     Council and for the purposes of the Federal grant
     and by authority of and In compliance with P.L.
     90-351, Title I, Omnibus Crime Control and Safe

                             -3808-
Hon. Preston Smith, page 3,      (M-782)       .'


     Streets Act of 1968 and to accomplish the objectives
     of the 1970 State Plan as approved by the Law En-
     forcement Assistance Administration."
          The Texas Criminal Justice Council Is a planning agency
in the Governor's office,created by an Executive,Order dated
October 18, 1968, charged with the administration and dlsburse-
ment of Federal funds made available through themLaw~Enforcement
Assistance Admlnlstration,,provided for by the provisions of P.L.
90-351, Title I (Omnibus Crime Control and Safe Streets Act of
1968). The Texas Criminal Justice Council Is financed by funds
appropriated to the Governor In Item 11 of the current Qeneral
Appropriations Act to the Oovernor's office which reads as follows:
                                         "For the Years Ending
                                       August 31,      August 31,
                                          1970            1971
"11. To provide from the
     General Revenue Fund for
     special planning projects
     and studies including but
     not limited to Comprehen-
     sive Health Planning,,Texas
     Criminal Justice Council,
     Coastal Resources Study,
     State Economic Study, Man-
     power Development, and
     Governor's Committee on
     Human Relations, Including
     salaries of exempt and clas'sl-
     fled poaltions, professional
     fees and services, part-tlme
     and,seasonal help, travel,
     consumable supplies and
     materials, current and re-
     curring operating expenses,
     capital outlay, planning
     grants, and all other actlvl-
     ties for whkh no other pro-
     visions are made.
                                        $ 585,000       $ 644,728
                                                           -& U.B."
          Section 25 of Article V of the current General Appro-
priations Act provides In part as follows:


                              -3809-
Hon. Preston Smith, paBe 4      (M-782)


          ."A11 funds received from the United States
     Government by the agencies of the State named In
     this Act are hereby appropriated to such agencies
     for the purposes for which the Federal grant, al-‘
     location, aid, or payment was made, subject to the
     provisions of this Act . . . ."
          Each disbursement contemplated by your four questions
Is In compliance with planning grant applications which have been
approved and is for the purposes for which the Federal grant is
made. Therefore the Comptroller may Issue such warrants unless
prevented by some constitutional or statutory restriction.
          In view of the provisions of Section 25 of Article V
of the current General Appropriations Act, above quoted, Federal
grants received by the Texas Criminal Justice Council are de-
posited in the State Treasury to be expended for the purposes
for which the grant was made.
          Section 6 of Article VIII of the Constitution of Texas
DrOVldeS that no money shall be drawn from the Treasury but in
pursuance to specific-appropriations made by law. Pickle v.
Finley, 91 Tex. 484, 44 S.W. 480 (1898). See also Si
Steele, 57 Tex. 200 (1882); Linden v. Finley,.92 Tex. 451,
S.W. 578 (1899).
          In the instant case the moneys in question have been
appropriated for the purposes of the Federal grant and such
appropriation authorizes the withdrawal of the money from the
Treasury for such purposes. The only question remaining Is
whether the Issuance of a warrant payable to a nonprofit agency
such as the Vocational Guidance Service, a nonprofit United Fund
agency In Houston, Texas, providing comprehensive rehabilitative
services to adjudicated delinquent boys and preventive services
for other boys with a potential for delinquency, violates the
provisions of Section 51 of Article III of the Constitution of
Texas, prohibiting the "making of any grant of public moneys to
any Individual, association of Individuals, municipal or other
corporations whatsoever . . ." It is well settled that the pur-
pose of this section Is to prevent the application of public
funds to private purposes. State v. City of Austin, 160 Tex. 348,
331 S.W.2d 737 (1960); City of Aransas Pass v. Keeling, 112 Tex.
339, 247 S.W. 818 (1923); Jones v. Williams, 121 Tex. 94, 45
S.W.2d 130 (1931); Byrd v. City of Dallas, II8 Tex. 28, 6 S.W.2d
738 (1928).
          A similar question regarding disbursement of Federal

                             -3810-
Hon. Preston Smith, page 5~     (M-.782)


funds deposited with the State Treasury to'colleges and uni-
versities for teacher training was involved In Attorney General's
Opinion c-474 (1965). It was there held that payments to colleges
and universities which provided teacher training under a State
plan approved by the Texas Education Agency and the United States
Government were valid and that such payments would not violate
Section 51 of Article III of the Constitution of Texas. After
reviewing authorities It w&s held:
         "Thus it appears that your Inquiry re-
    solves Itself Into a question of whether the,
    payment of these funds to enable teachers to
    obtain professional training in areas of mental
    retardation, emotional dlsturbance,~speech and
    hearing Impairment, whereby,they will be better
    trained .to.teach such exceptional children, Is
    logltiallywithin the meaning of applying 'public
    funds to a private purpose.' We think that It
    Is not."
          Likewise it was held In Attorney Qeneral'~sOpinion
V-1067 (1950):
          "In determining whether an expendlture,of
     public monies constitutes a gift or a grant ,of
     public monies, 'the primary question Is whether
     the funds are used for a "public" or "private"
     purpose. The benefit of the State from an ex-
     penditure for a "public purpose" is in the nature
     of consideration and the funds expended are there-
     fore not a,alft even though private DerSOns are
     benefited therefrom.' Alameha County v. Jan&en,
     16 Cal.2d 276, 106 P.2d 11, 130 A.L.R. 1141 Trvub)."
          In view of the foregoing we are of the opinion that the
Issuance and payment of warrants outlined In your four questions
do not violate Section 51 of Article III of the Constitution of
Texas. You are accordingly advised that payments may not only be
made to public or state supported institutions, but also to non-
profit organizations, to non-state supported universities,
colleges and junior colleges, as well as to Individuals who are
employees or elected officials In the criminal justice system,
provided the payment and expenditure of such warrants is for
the purpose for which the Federal grant Is made.'
          Your request as well as the accompanying documents
outline material facts showing such payment Is to be made in

                              -3811-
.   .   .




    Hon. Preston Smith, page 6          (M-782)


    accordance with the terms of each grant application and for the
    purposes of the Federal grant and by authority of and In com-
    pliance with the Omnibus Crime Control and Safe Streets Act of
    1968. Therefore, each question Is answered In the affirmative.
                              SUMMARY
                 Pursuant to the provisions of Section 25 of
            Article V of House Bill 2, Acts 61st Leg. 1969,~2nd
            C.S., disbursement of Federal grants deposited In
            the State Treasury pursuant to the provisions of
            P.L. 90-351, Title I, Omnibus Crime Control and
            Safe Streets Act of 1968, can be made by issuance
            of warrants by the Comptroller of Public Accounts
            payable not only to public or state supported ln-
            stitutlons, but also to nonprofit corporations
            and associations, non-state supported educational
            Institutions, and Individuals who are employees
            or elected officials In the criminal justice
            system so long as such payment and expenditure
            is made In accordance with the terms of the grant
            application and for the purposes of the Federal
            grant. Such payment Is for a public or govern-
            mental purpose and would not viol e Section 51
            of Article III of the Constitut    of Texas.




                                                  General of Texas
    Prepared by John Reeves
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Ben Harrison
    Llnward Shivers
    Austin Bray, Jr.
    James Broadhurst




                                   -3812"
Hon. Preston Smith, page 7      (M-782)




MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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