                       The Attorney General of Texas

                                         Narch 5, 1981
MARK WHITE
Attorney General

                   Honorable Bob Bullock                    Opinion No. M+295
                   Comptroller of Public Accounts
                   Capitol Station                          Re: Whether various statutes apply
                   Austin, Texas 76774                      to the Texas Guaranteed Student
                                                            Loan Corporation

                   Dear Mr. Bullock:

                          You ask whether the Texas Guaranteed Student Loan Corporation is a
                   “state agency” within a number of statutes.  The Texas Guaranteed’Student
                   Loan Corporation is a public, non-profit corporation created pursuant to
                   chapter 57 of the Education Code. It guarantees loans made to eligible
                   students under the federal guaranteed student loan program established by
                   the Higher Education Act of 1965, 20 U.S.C. sections 1001 et seq. It is
                   specifically made subject to the Texas Sunset Act, Education Code section
                   57.12(a).

                           The term public corporation includes public agencies such as drainage
                   districts, irrigation districts, cities and city housing authorities.    Harris
                   County Drain-&e District No. 12 v. City of-Houston; 35 S.W. 2d 118x
                   Comm’n App. l93U; Loumparo    ff   v. Hous’                                  261
                   S.W. 2d 224, 227 (Tex. Civ. App. - Dallas 1953, no writ); J. C. Engleman Land
                   Co. v. Donna Irrigation District No. 1, 209 S.W. 426 (Tex. Civ. App. - San
                   Antonio 1919. writ ref’dl. It also can refer to an instrumentality       of the
                   government or a convenient mesns to carry out a governmental function.
                   Attorney General Opinion No. 2971 (1935). It is %onnected             with the
                   administration of the government, and the interests and franchises of which
                   are the exclusive property and domain of the government itself.“’ Miller v.
                   m,        150 SW. 2d 973, 976 (Tex. 1940. As such, the term public corporation
                   has been found to include the Texas Emolovers Insurance Association and the
                   Bank Deposit Insurance Corporation.     M&k%eton v. Texas Power & Light Co.,
                   185 S.W. 556 (Tex. 1916); Attorney General Opinion No. 297l(l935).

                          You ask whether the Texas Guaranteed Student Loan Corporation is a
                   “state agency” for purposes of articles 6252-94 6252-Q 6252-Ilb, 6252-llc,
                   6252-13a, 6252-17, 6252-17a, 6252-19, 601b and 4413(32), V.T.C.S. The Texas
                   Guaranteed Student Loan Corporation was created after a study by an
                   interim committee of the legislature.    One of the reasons that the public
                   corporation form was chosen was to provide a measure of administrative
                   flexibility not available to state agencies.  Report of the Special Interim
                   Study Committee on State Involvement~ln and Administration of Student




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Honorable Bob Bullock - Psge Two




Loan Programs for Texas; Coordinating Board, Texas College and University System,
Final Report on Project to Evaluate Alternatives        for a Student Loan Guarantee
Program (November 17, 1976). In light of the reason expressed in the legislative history
for choosing the non-profit corporate vehicle, we do not believe the legislature
intended to include the corporation within the statutes which apply to state agencies
generally.   The same legislature which created the Texas Guaranteed Student Loan
Corporation knew how to indicate that a public corporation was to be considered as a
state agency. See State Bar Act, V.T.C.S. art. 32Oa-1, S2 (State Bar %ontinued as a
public corpora=       and an administrative      sgency of the judicial department     of
government.“).   Since it did not do so in the case of the Texas Guaranteed Student
Loan Corporation and since its apparent intent was to utilize the,~corporate form to
permit administrative     flexibility not available to state agencies, we believe the
legislature did not intend that the corporation be construed as being a state agency.
Accordingly, it is our opinion that the corporation is not covered by articles 6252-94
6252-Q 6252-lib, 6252-llc, 6252-13a, 6252-17, 6252-19, 601b and 4413(32). We note that
our conclusion that the corporation is not subject to article 6252-19, the Tort Claims
Act, is premised on the determination          that the legislature did not intend the
corporation to fall within the doctrine of governmental immunity.

      We believe, however, that the corporation is subject to the provisions of the
Open Records Act, article 6252-li’a, V.T.C.S. Section 2(F) of that statute specifically
extends coverage to “every . . . corporation. . . which is supported in whole or in part
by public funds.” Since the corporation received a start up appropriation, we believe it
falb within the precise language of the Open Records Act.

      You finally note that section 57.75 of the Education Code provides as follows:

                All income, property, and other assets of the corporation are
            exempt from taxation by the state and political subdivisions of
            the state.

You ask whether this language exempts the corporation from payment             of the taxes
imposed on its purchases by the Limited Sales, Excise and Use Tax Act,        articles 20.01
through 20.17, Taxation - General. In our opinion, we need not answer        this question,
because the corporation is in all probability eligible for one or both of    the following
exemptions found in the Limited Sales, Excise and Use Tax Act itself:

                (H) United States; State; Political      Subdivision; Religious,
            Eleemosynary Organizations.     There     are exempted from the
            computation   of the amount of the         taxes imposed by this
            Chapter, the receipts from the sale,        lease or rental of any
            taxable items to, or the storage, use     or other consumption of
            taxable items by:

            . . . .

                (5) Any organization  created for religious, educational,
            charitable or eleemosynary purposes, provided that no part of




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Honorable Bob Bullock - Page Three




           the net earnings of any such organization   inures to the benefit
           of any private shareholder or individual

           . . . .

               (7) An organization qualifying for exemption from federal
           income tax under Internal Revenue Code Section 501(&3)
           provided, however, that no item purchased shall be used for the
           personal benefit of any private stockholder or individual and the
           items purchased must be related to the purpose of said
           organization or corporation. Tax. - Gem art. 20.04.

                                   SUMMARY

               The Texas Guaranteed Student Loan Corporation was not
           intended by the legislature to be a state agency. It is, however,
           subject to the Texas Open Records Act and the Sunset Act. It
           is exempted from payment of the taxes imposed by the Limited
           Sales, Excise and Use Tax Act, articles 20.01- .17, Taxation-
           General

                                         xm
                                             MARK      WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by C. Robert Heath
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
C. Robert Heath
Eva Lcutzenhiser




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