        THE       A~OR:NEY             GENERAL
                      OP    TEXAS
                  AUSTIN.    %XAS      78711
                     July 29, 1965

Honorable J. W. Edgar               Opinion No. C-474
Commissioner of Education
Texas Education Agency              Re:   Validity of the Central
Austin, Texas                             Education Agency's vouchers
                                          issued to colleges and uni-
                                          versities which provided
                                          teacher training under a
                                          State Plan approved by the
                                          Agency and the United States
                                          Government as authorized
                                          in P.L. 88-164,Mental
                                          Health Retardation Facil-
                                          ities and Community Mental
                                          Health Centers Construc-
Dear Mr. Edgar:                           tion Act.
          We are in receipt of your letter of recent date
requesting an opinion on the question hereinafter stated:
         Validity of the Central Education Agency's
    vouchers issued to colleges and universities
    which provided teacher training under a State
    Plan approved by the Agency and the United
    States Government as authorized in P.L. 88-164,
    Mental Health Retardation Facilities and
    Community Mental Health Centers Construc-
    tion Act.
          Article 2654-3b, Vernon's Civil Statutes, provides
in Section 5 thereof that:
         "The State Board of Education shall be
    responsible for maintaining State programs
    and activities designed to bring about improve-
    ment in the public schools. In discharging
    this responsibility, the Board is authorized
    to enter into contracts for grants from both
    public and private organizations and to expend
    such funds for the specific purposes and i
    accordance with the terms of the contract %th
    the contracting agency." (Emphasis added).



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Hon. J. W. Edgar, page 2 (C-474)


          House Bill 86, Acts of the 58th Legislature, 1963,
the general appropriations bill, provides in Article IV
and on pages IV-5 and IV-12 the following provisions:
         "The State Board for Vocational Edu-
    cation, through its Executive Officer, the
    Commissioner of Education, is hereby authoriz-
    ed to receive and disburse in accordance with
    m     acceptable to the responsible Federal
    Agency all Federal moneys that are made avail-
    able to the State of Texas for such purposes and
    such other activities as come under the author-
    ity of the State Board of Vocational Education,
    and such moneys are appropriated to the specific
    purpose for which they are granted.
         31
          . . .
         "The proper officer or officers of the
    Central Education Agency are hereby authorized
    to make application for and accept any other
    gifts, grants or allotments from the United
    States Government or other sources to be used
    on cooperative and any other projects or programs
    in Texas. Any such Federal and other funds as may
    be deposited in the State Treasury are hereby
    appropriated to the specific purposes authorized
    by the Federal Government and other contracting
    organizations, and the State Board of Education is
    authorized to expend these funds in accordance
     i h the terms of the contract with the contracting
    Ipint. . . .' (Emphasis added).
           Section 3 of Article 2654-l provides in part as
follows:
         "The Central Education Agency shall be the
    sole agency of the State of Texas to enter into
    agreements respecting educational undertakings,
    . . . with an agency of the Federal Government,
    except such agreements as may be entered into by
    the Governins Board of a State university or col-
    lege. . . .
           Your letter states on page three thereof the following:
          "In making arrangements or agreements with
     the fifteen colleges and universities to provide


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Hon. J. ti.Edgar, page 3 (C-474)


     teacher training and to advance payment for
     such teacher traineeships, the Texas Educa-
     tion Agency relied on the above cited enact-
     ments, being of the opinion that those pro-
     visions provided the necessary authority for
     disbursement of the Federal Funds allotted
     and deposited in the State Treasury, all in
     line with a State Plan approved by this Agency
     and the Government. The colleges and univer-
     sities in good faith have performed the services
     and provided the benefits for which they now
     submit their respective reimbursement vouchers.'
          You have furnished, together with your letter, a
copy of the State Plan which was approved by the Federal
Government at the time the money was allotted and given to
the State of Texas for the purposes as set out in said Plan
or agreement. It is noted that all of these funds are
furnished by the Federal Government based upon the State
Plan as submitted, which in effect is a contract between
the State and the Federal Government to the effect that the
money will be expended as set out in the said Plan, a copy
of which you have advised us has been filed in the office of
the Secretary of State.
           It is noted that the Plan provides in part as
follows:
           11
            . . .
           "f. Payment
               (1) Payment will be made to coiiege or
                   university of trainee's choice for
                   both stipend and support grant.
               (2) T';;;';;t;t;lreceive stipend from
                              .
               (3) Institution will provide Texas
                   Education Agency with necessary
                   expendituf;erecords for accounting
                   purposes.
          In view of the provisions of Section 5 of Article
2654-3b and House Bill 86, we are of the opinion that the
Legislature intended for the funds received by the Central
tducation Agency, from such sources as public or private
organizations, to be expended in the manner and for the reason
set forth in the contract or agreement entered into between
the Central Education Agency and the public or private organ-
izations granting such funds. tihensuch contracts or agreements
have provisions allowing the funds to be used for payment to
                            -224-J-
Hon. J. W. Edgar, page 4 (C-474)


colleges or universities of trainee's choice for both
stipend and support grant, we are of the opinion that the
State Board of Education is authorized to issue vouchers
to colleges and universities which provided teacher training
under the State Plan as approved.
          The Office of the State Comptroller has questioned
the constitutionality of payments to these State institutions
due to the fact that they are of the opinion that the same
violates Section 51 of Article III, Constitution of Texas,
wherein it provides:
          "The Legislature shall have no power
     to make any grant or authorize the making
     of any grant of public moneys to any indi-
     vidual, association of individuals, munici-
     pal or other corporations whatsoever; . . ,"
          In speaking of Section 51 of Article III of the Con-
stitution of Texas, the Supreme Court, in the case of State
v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960)-d
‘inpart:
          11
           . . . The purpose of this section . . .
     of the Constitution is to prevent the appli-
     cation of public funds to private purpose=
     See Byrd v. City of Dallas, 118 Tex. 28, b
     S.W.2d 738." (Emphasis added).
          It is well settled in this State that when a law
duly enacted is attacked as unconstitutional, it is presumed
to be valid and doubts as to its unconstitutionality will
always be resolved in favor of constitutionality, and a
construction will be given, if reasonable, that will uphold
it. Southern Pine Lumber Co. v. Newton County Water Suppl
District, 325 S.W.2d 724 (Civ.App. 1959, err. ref., n.r.e.
          Thus it appears that your inquiry resolves itself
into a question of whether the payment of these funds to
enable teachers to obtain professional training in areas of
mental retardation, emotional disturbance, speech and hearing
impairment, whereby they will be better trained to teach
such exceptional children, is logically within the meaning
of applying "public funds to a private purpose." We think
that it is not.
          In Attorney General's Opinion v-1067 (1950), this
office said in part:


                           -2248-
Hon. J. ‘w.Edgar, page 5 (C-474)


          "In determining whether an expenditure
     of public moneys constitutes a gift or a grant
     of public moneys, 'the primary question is
     whether the funds are used for a "public" or
     a "private" purpose. The benefits of the State
     from an expenditure for a "public purpose" Is
     in the nature of consideration and the funds
     expended are therefore not a gift even though
     private persons are benefited therefrom.'"
          The determination of what constitutes a "public
purpose' for which a State may expend moneys has been held
to be primarily a legislative function, subject to review
by the courts when abused, and the determination of the
legislative body of the matter has been held to be not
subject to be reversed except in instances where such
determination is palpably and manifestly arbitrary and
incorrect. State ex rel. McClure v. Hagerman, 155 Ohio St.
320, g8 N.E.2d 835 (1951).
          The State plan was adopted and finally approved
in September, 1964. The 59th Legislature in Section 36 of
Article IV, General Appropriation Bill, re-enacted the appro-
priation previously made for payments of contracts entered into
by the Central Education Agency. This re-enactment indicates
legislative review and approval of these contracts. It is the
opinion of this office that the payments ,under the particular
contract in question here are for a public purpose and therefore
do not violate Section 51 of Article III of the Texas Constitu-
tion.
                     SUMMARY
          Pursuant to Article 2654- b, Vernon's Civil
     Statutes, and House Bill 86, 58 th Legislature,
     vouchers issued to colleges and universities
     which provided teacher training under a State
     Plan approved by the Central Education Agency
     and the United States Government, as authorized
     in P. L. 88-164, are valid and payment of such
     vouchers by the State Comptroller would not
     violate Section 51 of Article III of the State
     Constitution.




                           -2249-
Hon. J. W. Edgar, page 6 (C-474)


                             Yours very truly,




JHB:ms:sj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. Arthur Sandlin
Malcolm Quick
Tom Routt
APPROVED F'ORTHE ATTQRREY GENERAL
BY: Hawthorne Phillips




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