                                              The Attorney                     General of Texas
                                                                       May 5,    1983
    JIM MATTOX
    Attorney General


                                            Honorable Mary Polk                                    Opinion    No. JM-30
    Supreme      Court Building             Chairman
    P. 0. BOX 12546
                                            Comittee   on Human Services                           Re:    Constitutionality      of House
    Austin. TX. 76711. 2546
    51214752501
                                            Texas House of Representatives                         Bill    No. 1002 relating        to a
    Telex    9101674.1367                   P. 0. Box 2910                                         surcharge     on telephone   bills  to
    Telecopier     5121475.0266             Austin,  Texas   78769                                 Pay      for      telecommunication
                                                                                                   devices    for the deaf
    1607 Main St., Suite 1400
    Dallas, TX. 75201.4709
                                            Dear Representative        Polk:
    2141742.6944
                                                   You have requested        our opinion      regarding    the constitutionality        of
                                            House     Bill     No.     1002,     presently       pending      in   the    Sixty-eighth
    4624 Alberta       Ave., Suite    160
                                            Legislature.         The bill        establishes       a "telecommunications          device
    El Paso. TX.       79905-2793
    9151533-3464
                                            placement     board,"    section    82.003,    within    the Texas Commission for the
                                            Deaf,    whose function         it    is   to administer       the "telecommunications
P                                           device placement program.           . . to provide      telecomunications        devices    to
     120 Dallas Ave., suite          202    eligible     individuals."         Sec.   82.002.      A "telecomnunications         device"
    Houston.   TX. 77002.6966
                                            under the bill       is:
    7131650-0666

                                                         a device     used with  a basic    telephone    unit   to
    606 Broadway.        Suite 312                       provide  a means by which deaf,      hearing  impaired,
    Lubbock.     TX.    79401-3479                       or speech     impaired individuals     can effectively
    6061747.5236
                                                         cowmunicate.

    4309 N. Tenth. Suite B                  Sec.   82.001(6).
    McAllen.     TX. 76501-1665
    5121662.4547                                    A deaf,     hearing     impaired,    or speech impaired       person who desires
                                            to participate           in the program        is required     to apply      to the Texas
    200 Main Plaza. Suite 400
                                            Commission       for     the Deaf,     which     is empowered     to issue       eligibility
    San Antonio,  TX. 76205.2797            certificates         to qualified       individuals.       The board      is    directed      to
    5121225-4191                            distribute        telecommunications          devices    to   "telephone       distribution
                                            centers      used by utilities            providing    telephone     services,"        section
                                            82.009,      which     in turn distribute          them to individuals         who present
    An Equal       Opportunityi
    Affirmative      Action     Employer    eligibility       certificates.

                                                  House Bill No. 1002 also establishes         a "telecommunications       device
                                            placement    fund" as a "special   fund outside       the state    treasury."      The
                                            fund:    "is   created    through the     imposition       and  collection      of    a
                                            surcharge    on monthly telephone   bills,"    in an amount to be determined
                                            by the board,      but not to exceed    25 cents.       This surcharge      would be
                                            payable    by each consumer of telephone         services.     SW.     82.006.     The



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Honorable    Mary Polk      - Page 2            (JM-30)




telephone      utility  is required         to transfer     to the board          the funds
collected     pursuant   to the surcharge.         The board is then empowered to
“award the purchase        contract     [for   the telecommunications          devices]      to
the bidder who conforms         closest     to the specifications         required.”       The
State     Purchasing   and General        Services   Act,    article     601b,     V.T.C.S..
does not apply to the purchase             of the telecommunications          devices,     but
the board must use a “substantially                equivalent”       bidding     procedure.
Section    82.008.

       You inquire     whether  House Bill   No.    1002                  is   constitutional.
Article   III, section   51, of the Texas Constitution                    provides:

                 sec.    51.        Grants      of    public   money   prohibited;
             exceptions.

                 The Legislature        shall have no power to make any
             grant    or authorize        the making of any grant              of
             public    moneys to any individual,              association      of
             individuals,        municipal        or   other      corporations
             whatsoever;      provided,     however,    the Legislature       may
             grant    aid   to indigent         and disabled       Confederate
             soldiers     and sailors        under such regulations           and
             limitations      as may be deemed by the Legislature              as
             expedient,        and   to     their     widows     in    indigent
             circumstances          under        such     regulations         and
             limitations      as may be deemed by the Legislature              as
             expedient;      provided      that    the provisions        of   the
             Section     shall    not be construed         so as to prevent
             the grant of aid in cases of public               calamity.

      Article      XVI,   section     6,   of     the Texas    Constitution    provides:

                    Appropriations         for    private     purposes;    state
                participation       in programs financed       with private    or
                federal       funds    for     rehabilitation        of  blind,
                crippled,       physically       or    mentally     Handicapped
                Persons.

                    (a)   No appropriation    for private     or individual
                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.

                    (b)    State        agencies      charged    with    the
                responsibility       of providing    services  to those who
                are blind,       crippled,     or otherwise   physically  or
                mentally     handicapped     may accept money from private




                                             p.      129
Honorable   Mary Polk      - Page 3       (JM-30)




            or federal       sources,      designated         by the private          or
            federal      source        as money         to     be used       in     and
            establishing           and      -Wppi*g             facilities          for
            assisting        those      who are         blind,       crippled,        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
            handicapped.          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         associations,         groups,      and nonprofit
            organizations,           in    establishing           and      -wiwi*g
            facilities        for    assisting        those      who are blind,
            crippled,       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         cars
            or treatment        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     subsection       without      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       this
            subsection       or may regulate           the amount of money
            accepted,      the way the acceptance            and expenditure
            of the money is administered,               and the purposes        for
            which     the state      agencies      may expend        the money.
            Money accepted       under this subsection           for a purpose
            prohibited      by the Legislature          shall be returned         to
            the entity      that gave the money.

               This     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




                                              p.    130
Honorable   Mary Polk      - Page 4         (JM-30)




            services,   subject   to such conditions,      standards,
            and procedures    as may be prescribed    by law.

      In Attorney   General Opinion MW-22 (1979).   this office     said that a
program to provide     assistance  for payment of utility    costs    for needy
aged individuals    was violative  of article III,  section   51, and article
XVI, section    6, of the Texas Constitution.    The opinion    declared:

            Although       the prohibitions        of article       III,      section
            51 and article         XVI, section        6 are not applicable
            if    the governmental          expenditure        is made for             a
            proper       public    purpose,        see   state      V.      city     of
            Austin,       331 S.W.2d       737 (Tex.       1960).      we do not
            believe        that   Senate     Bill      No.    628 mav be             so
            characterized.            This     office      has      on *numerous
            occasions        held    that    similar       direct        grants      on
            behalf     of individuals,         paid solely         out of state
            funds,     do not serve a proper public              purpose.         See,
            *,       Attorney      General Opinion         Nos. H-602 (1975)
             (school     district    may not purchase          personal        injury
            protection        or uninsured      motorist      coverage);         H-520
             (1975)    (county    may not contribute           public       funds to
            the construction           of a facility          to be used and
            operated       by a private       corporation);         C-523 (1965)
            (state     university      may not pay on honorarium                 to an
            individual        making a commencement address);                    V-809
             (1949)    (public    funds may not be expended on behalf
            of victims        of spastic      or epileptic        fits);       O-2578
            (1940)      (public    welfare      grants     without        regard     to
            categories        enumerated     under article          III,      section
            51-a are invalid).             It is therefore           our opinion
            that Senate Bill         No. 628 is invalid           under article
            III,    section     51 and article        XVI, section          6 of the
            Texas Constitution.

The opinion      noted      also     that      article     III,     section       51-a,    of   the
constitution:

            permits   certain    assistance     programs when federal
            matching    funds    are    available.       If  appropriate
            federal  legislation      were enacted,    a program of the
            type you suggest     could be implemented by the State
            of Texas.      Otherwise,     a constitutional     amendment
            would be required.

       We believe    that   this    reasoning    is equally     applicable     to the
program which House Bill         No. 1002 proposes       to establish,     in that it
constitutes    a direct   grant of valuable       property   to needy individuals,
paid solely     out of funds collected        in the name, and for the use of,




                                             p.   131
.   :,


         Honorable   Mary Polk    - Page 5    (JM-30)




         the state.      In our opinion,   such a program clearly    contravenes    article
         III,    section     51,   and   article   XVI,   section     6,   of   the    Texas
         Constitution.      In view of this determination,      we need not address your
         other questions.

                                             SUMMARY

                          House Bill No. 1002, which proposes           to provide
                      telecormnunications      devices     for the deaf,    hearing
                      impaired,    and speech impaired,       to be financed    by a
                      surcharge      on telephone      bills,    is violative     of
                      article   III,   section   51, and article     XVI, section
                      6, of the Texas Constitution.

                                                               Very   truly   you
                                                                        .

                                                        J-k
                                                               JIM      MATTOX
                                                               Attorney  General    of   Texas

         TOM GREEN
         First Assistant     Attorney    General

         DAVID R. RICHARDS
         Executive Assistant      Attorney   General

         Prepared    by Rick Gilpin
         Assistant    Attorney General

         APPROVED:
         OPINION COMMITTEE

         Susan L. Garrison,      Chairman
         Jon Bible
         David Brooks
         Rick Gilpin
         Jim Moellinger
         Nancy Sutton
         Bruce Youngblood




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