    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN     CORNYN




                                                 March 5,200l



Mr. Robert J. “Sam” Tessen, M.S.                          Opinion No. JC-0350
Executive Director
Telecommunications   Infrastructure                       Re: Whether the Telecommunications          Infra-
 Fund Board                                               structure Fund Board has authority to spend
1000 Red River, Suite E208                                appropriated funds to inform the general public of
Austin, Texas 78701                                       its activities and accomplishments     and of the
                                                          opportunities it provides (RQ-0292-JC)
Dear Mr. Tessen:

         On behalf of the Board of the Telecommunications     Infrastructure Fund (the “TIF” or the
“Fund”), you ask whether the Board may spend appropriated funds to inform the public at large of
the activities and accomplishments of the TIF as well as the opportunities available through it. You
also ask whether the TIF Board may contract with a public relations firm for these purposes. We
conclude that the TIE Board has authority to make information about its functions available to the
public and may use appropriated funds for that purpose.         It lacks authority to engage in an
advertising or a public relations campaign regarding the TIF and may not use appropriated funds for
that purpose. The TIF Board may not contract with a public relations firm.

         Chapter 57, subchapter C of the Utilities Code, establishes the Telecommunications
Infrastructure Fund and the TIF Board, which is responsible for administering the Fund. See TEX.
UTIL. CODE ANN. $0 57.043-.045 (Vernon 1998 & Supp. 2001). The Fund derives from an annual
assessment on each telecommunications      utility and each commercial mobile service provider, more
popularly known as cellular telephone service provider,* doing business in the state. See id. 4 57.043
(Vernon Supp. 2001). The state comptroller collects the assessments and deposits equal amounts
to the credit of the two accounts in the Telecommunications    Infrastructure Fund, the public schools
account and the qualifying entities account, and the legislature appropriates money from the Fund
to the TIF Board. See id. 98 57.048 (assessment and collection procedure), .0485 (deposit of
collections to accounts in fund); see also Act of May 26, 1999, 76th Leg., R.S., ch. 1589, art. III,
 1999 Tex. Gen. Laws 5446,570O (appropriation to the Board). The TIF Board “shall use money in
the public schools account” to award grants and loans to public schools for computer equipment and



           ‘See TEX. UTIL. CODE ANN. $57.042(3) (Vernon Supp. 2001) (defining “commercial mobile service provider”
by reference to 47 U.S.C. 5 332(d) (Supp. IV 1998)); see also 47 U.S.C. 6 332 (1994 & Supp. IV 1998) (regulation of
mobile services); MCI Cellular Tel. Co. v. Fed. Communications Comm ‘n, 738 F.2d 1322, 1323-24 (D.C. Cir. 1984)
(explaining technology of cellular telephone service).
Mr. Robert J. “Sam” Tessen, M.S. - Page 2                 (JC-0350)




related items, and money in the qualifying entities account “for any purpose authorized by this
subchapter,” including distance learning, an information sharing program of a library, and
telemedicine services. TEX. UTIL. CODE ANN. $0 57.046, .047 (Vernon Supp. 2001).

         Your first question is as follows:

                          Does the Telecommunications         Infrastructure Fund (TIP)
                 Board have authority to expend state appropriated funds for the
                 purpose of informing the general public at large, which will include
                 all constituency groups, of the activities and accomplishments of, and
                 opportunities available through the TIF? Providing such information
                 may provide TIF with recognition and exposure throughout Texas
                 and the nation.*

The “constituency groups” you refer to are the entities that may apply for a grant or loan from the
TIF. See TEXAS TELECOMMUNICATIONS               INFRASTRUCTURE      FUND BD., MASTER PLAN, § IV(A)
(2000), available at http://www.tifb.state.tx.us/masterplan/masterpln-analysis.htm.

         Your first question is very general. You do not provide any information about the magnitude
of your plan or the form in which you propose to disseminate information. We are unable to address
the validity of a particular proposal, but we can discuss in general terms the TIF Board’s authority
to provide information to the public.

         Funds appropriated to the TIF Board may be spent only for statutorily authorized purposes.
Money in the Fund may be appropriated only for a use consistent with the purposes of Utilities Code
subchapter C, chapter 57. See TEX.UTIL. CODEANN. 9 57.043(c) (Vernon Supp. 2001); see also id.
5 57,045(d)(5) (TIF Board may accept a gift or grant and use it for the purposes of subchapter C);
1 TEX. ADMIN. CODE 9 471.60 (2000) (gift, grants, and donations received by TIF Board shall be
deposited in the state treasury). The current appropriation to the TIF Board reflects this limitation
on using the money in the Fund. See Act of May 26,1999,76th         Leg., R.S., ch. 1589, art. III, 1999
Tex. Gen. Laws 5447, 5700.            The TIF Board’s entire appropriation          comes from the
Telecommunications     Infrastructure Fund, and it is allocated for the provision of grants and loans,
grant implementation, and indirect administration.     See id. at 5700-01.

        We will review the TIF Board’s authority under chapter 57, subchapter C of the Utilities
Code to determine whether it may inform the general public of the activities and accomplishments
of and opportunities available through the TIP, for the purpose of providing the TIF with recognition
and exposure throughout Texas and the nation. The TIF Board “shall administer the fund and the
two accounts in the fund,” and prepare an annual report showing the revenues deposited to the credit



           *Letter from Robert J. “Sam” Tessen, M.S., Executive Director, Telecommunications Infrastructure Fund
Board, to Honorable John Cornyn, Attorney General of Texas (Oct. 6, 2000) (on file with Opinion Committee)
[hereinafter Request Letter].
Mr. Robert J. “Sam” Tessen, M.S. - Page 3               (JC-0350)




of the fund and summarizing the grants and loans made Tom each account. TEX. UTIL. CODE ANN.
8 57.045(a),(b) w emon Supp. 2001). As already noted, the TIF Board is to award grants and loans
for computer equipment in public schools and for distance learning, library information sharing
programs, telemedicine services, and related purposes. Id. §§ 57.046, .047. The TIF Board “shall
adopt a master plan for infrastructure development,” covering a five-year period and describing “the
project, timeline, and resource allocation targets for each year included in the plan.” Id. tj 57.0455.

         The TIF Board has no express authority under chapter 57, subchapter C of the Utilities Code
to engage in the activities referred to in your first question, that is, to inform the general public of
the activities and accomplishments of, and opportunities available through the TIF, for the purpose
of providing the TIF with recognition throughout Texas and the nation. There are, however, other
sources of law that give the TIF Board some authority to provide information to the public
consistently with the purposes of subchapter C. Section 2113.011 of the Government Code applies
to publicity activities of a state agency, defined to include “a department, commission, board, office,
or other entity in the executive branch of state government,” as well as other statewide entities. TEX.
GOV’TCODEANN. 8 2113.001(2)(A) (V emon 2000). Section 2 113 .O11(c) of the Government Code
permits a state agency to disseminate information about its activities:

                          Subject to Section 2 113.107(d) [which applies to an executive
                agency head who is an elected officer], the executive head of a state
                agency who considers it necessary or in the public interest may issue
                through agency channels oral or written information relating to the
                activities or legal responsibilities of the agency. The information
                must be issued in the name of the state agency and include the name
                of the individual authorized to issue the information.

Id. 8 2113.01 l(c);seeaZsoid. 59 2113.01 l(a), .107(c)(stateagencymaynotuseappropriatedmoney
to publicize an individual officer or employee).       The substance of the quoted provision was
previously included in the general appropriations acts. See, e.g., Act of May 29, 1997, 75th Leg.,
R-S., ch. 1452, art. XI, 5 7,1997 Tex. Gen. Laws 5535,6357; Act ofApril 13,1953,53dLeg.,       R.S.,
ch. 8 1, art. VI, 6 7, 1953 Tex. Gen. Laws 127, 345. It was one of many legislative riders formerly
included in general appropriations acts that were codified as general law by the 76th Legislature.
See Act of May 29,1999,76th Leg., R.S., ch. 1498,§ 4,1999 Tex. Gen. Laws 5 153,5 155 (adopting
Government Code, chapter 2 113, an act relating to provisions that authorize, restrict, or prohibit
expenditures by public entities).

          This office has determined that a state agency has implied authority to publish a newsletter
or bulletin at state expense concerning matters related to its statutory responsibilities. See Tex. Att’y
Gen. Op. Nos. H-1272 (1978) at 2 (agency that administers statute on mobile home standards may
have implied authority to inform consumers about such standards); M- 1138 (1972) at 1 (Water
Quality Board may print pamphlets and other appropriate materials, including bumper stickers, to
distribute to the public). Section 2113.011 of the Government Code now expressly authorizes the
executive head of a state agency to inform the public about the activities and legal responsibilities
Mr. Robert J. “Sam” Tessen, M.S. - Page 4              (JC-0350)




of the agency. The TIF Board may use appropriated funds to provide information            to the public
pursuant to section 2113.011 (c) of the Government Code.

         Other statutes are relevant to a state agency’s provision of information to the public. Section
2001.006 of the Government Code requires a state agency to make its rules and explanatory
information available through a generally accessible Internet site. See TEX. GOV’T CODE ANN.
5 2001.006 (Vernon 2000). Moreover, there is a legislative policy favoring a state agency making
information about its functions available to the public, as illustrated by a provision found in the
enabling statutes of many state agencies. The following section of the Utilities Code, which applies
to the Public Utilities Commission, is typical of these:

                         The commission shall prepare information of public interest
                describing the functions of the commission and the commission’s
                procedures by which a complaint is filed with and resolved by the
                commission.    The commission shall make the information available
                to the public and appropriate state agencies.

TEX. UTIL. CODE ANN. 8 12.201(a) (Vernon 1998). See also TEX AGRIC. CODE ANN. 9 12.026(a)
(Vernon 1995 & Supp. 2000) (Texas Department of Agriculture); TEX. GOV’T CODE ANN.
$9 419.01 l(a) (V emon 1998) (Texas Comrnission on Fire Protection), 48 1.012(a) (Vernon 1998)
(Texas Department of Economic Development); TEX. PARKS & WILD. CODE AN-N. 5 11.0161(a)
(Vernon Supp. 2001) (Texas Parks and Wildlife Commission).

         These provisions derive from an “across-the board” recommendation          developed by the
Sunset Advisory Commission.         See SUNSET ADVISORY COMM., GUIDE TO THE TEXAS SUNSET
PROCESS(1999) at 4-5; see also TEX. GOV’T CODE ANN. ch. 325 (Vernon 1998 & Supp. 2001)
(establishing Sunset Advisory Commission).        The across-the-board recommendations     are a set of
standard recommendations      applied to state agencies that go through sunset review. See SUNSET
ADVISORY COMM., GUIDE TO THETEXAS SUNSETPROCESS(1999) at 4-5. They reflect an effort by
the legislature to prevent problems from occurring and are designed to ensure open, responsive, and
effective government. See id. at 4; see also id. at 8 (summary of across-the-board recommendations
that apply to all agencies). Although the quoted provision does not appear in the TIF statute, its
inclusion in the across-the-board provisions suggests that the legislature wishes state agencies to
keep the public informed about their functions. It is consistent with this legislative policy for the
TIF Board to publish a newsletter or other similar document to inform members of the public, as
well as potential applicants for grants and loans, of its programs and functions.

        Chapter 2 113 of the Government Code places certain limitations on a state agency’s use of
appropriated funds for publishing. Section 2 113.107 of the Government Code bars a state agency
from using appropriated funds to publish:
Mr. Robert J. “Sam” Tessen, M.S. - Page 5               (JC-0350)




                        a periodical or other publication the cost of which is not
                reimbursed through revenue attributable to its publication and sale if
                the publication is:

                        (1) intended for use by the general public;

                        (2) generally informational,   promotional,   or educational;   and

                        (3) not essential to the achievement   of a statutory objective of
                the agency.

TEX. GOV’T CODE ANN. 9 2113.107(a)      (Vernon 2000). Several kinds of publications are excepted
from this restriction, including Texas Highways magazine, attorney general opinions, comptroller
opinions, newsletters, compilations of statutes or rules, and “annual reports and other materials that
are required by law and the content of which includes only topics provided by law.” Id.
8 2113.107(b).

          A review of the law relevant to the TIF Board thus shows that it has some express authority
to disseminate information describing its functions when this is in the public interest. Moreover, we
believe it has implied authority to inform potential applicants for grants and loans of its programs.
However, the TIF Board’s question refers to communications          that may provide the “TIF with
recognition and exposure throughout Texas and the nation.” Request Letter, supra note 2. The
purpose of keeping the public informed about the functions of government does not necessarily
encompass the goal of providing the TIF with statewide and nationwide recognition and exposure.
This purpose seems to be broader than making information available to constituent entities and the
general public, and it appears to involve promoting or advertising the TIF. In our opinion, the TIF
Board lacks authority to promote or advertise the TIF, in distinction to making information about
its functions available to the public.

         Our conclusion is based in part on the legislature’s decision to grant some state agencies
express authority to promote or advertise a specific subject. See, e.g., TEX. AGRIC. CODE ANN.
8 47.001 (Vernon Supp. 2001) (Department of Agriculture may promote and advertise Texas oyster
industry); TEX. GOV’T CODEANN. §Q 443.027 (Vernon Supp. 2001) (State Preservation Board may
publicize Capitol buildings and grounds), 445.005 (advertising of Bob Bullock State History
museum), 48 1.006(a)(6) (V emon 1998) (Texas Department of Economic Development may
establish a promotion and marketing division), 481.021(a)(8) (Texas Department of Economic
Development may sell advertisements), 485.004(a) (Music, Film, Television, and Multimedia Office
shall promote the development of music, film, television, and multimedia industries in this state).
S~~~~~~~~ZZ~TEX.GOV’TCODEANN. 0 2113.107(e),(f) (V emon 2000) (restrictions on using certain
kinds of printing stock or issuing a publication with an average of more than one picture for each two
pages not applicable to certain agencies or to a publication “designed to promote tourism or
economic development”). Absent express legislative authority to engage in an advertising or public
Mr. Robert J. “Sam” Tessen, M.S. - Page 6             (JC-0350)




relations campaign regarding the TIF, the TIF Board may not use appropriated funds for that purpose.

       Your second question is as follows:

                       If authority to expend appropriated funds is found for the
               above activities, is it limited to expenditure of funds for internal
               operations to accomplish       these activities, or does it include
               engagement of the services of a public relations firm for such
               purposes?

Request Letter, supra note 2.

         This question is based on the premise that the TIF Board has legal authority to engage in the
communication activities referred to in the first question. In answering the first question, we have
described some communications activities that the TIF Board has authority to engage in and some
that are not authorized, but we have not been able to give a definitive “yes” or “no” answer to that
question. Moreover, a decision as to whether the TIF Board may spend appropriated funds on a
particular communications endeavor would require the investigation and resolution of fact questions,
which cannot be done in an attorney general opinion. Thus, the premise upon which your second
question is based has not been established. Section 2 113.011 of the Government Code, however,
provides an answer to your second question that is not contingent on a particular answer to your first
question. Section 2113.011 provides that a state agency may not use appropriated money to:

                       (1) maintain a publicity office or department;

                        (2) employ an individual who has the title or duties of a public
               relations or press agent; or

                       (3) pay a public relations agent or business.

TEX. GOV’T CODE ANN. 8 2 113 .Ol 1(b) (Vernon 2000). In answer to your second question, the TIF
Board is expressly barred from using appropriated funds to pay a public relations agent or business.
Accordingly, the TIF Board may not spend its appropriated funds to engage the services of a public
relations firm.
Mr. Robert J. “Sam” Tessen, M.S. - Page 7          (JC-0350)




                                      SUMMARY

                        The Telecommunications     Infrastructure Fund Board has
               authority to make information about its functions available to the
               public and may use appropriated funds for that purpose. It lacks
               authority to engage in an advertising or public relations campaign
               regarding the Fund and may not use appropriated funds for that
               purpose. The Telecommunications      Infrastructure Fund Board may
               not use appropriated funds to contract with a public relations firm.




                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
