                                      The Attorney             General       of Texas
                                                       Uarch   24,   1982

 MARK WHITE
 Attorney General


                                Mr.    Homer A. Foerster                        opinion   No.   MJ-461
 Supreme Cowl Bulldlng          Executive Director
 P. 0. Box 12545
                                State Purchasing and General                    Re:      whether   State Purchasing
 Auatln. TX. 78711.2546
 512M75-2501
                                    services commission                         and General Services Commission
 Telex 91W674-1J87              L.B.J. Building                                 may   charge     for copies of bid
 Telewpier 512147543256         P. 0. Box 13047. Capitol Station                tabulations    after they are sent
                                Austin, Texas    78711                          out
 1607 Main Sk. suita 1400
 Dsllar. TX. 752014709
                                Dear Mr. Foerster:
 21417428944
                                      You have requested an opinion on vhether the State Purchasing and
                                General Services Commission may charge for copies of bid tabulations
 4524Alberta  Ave., Suite 180
                                after they are sent out pursuant to open records requirements.
 El Paso. TX. 79905-2793
 SlS553.24&
                                      The Open Records Act allows agencies     to charge  for reproductions
                                of public retards requested by members of the public.          V.T.C.S. art.
 1220 Dsllaa Ave.. Suite 202    6252-17a.    19.   Your request  statea  that the State Purchasing and
 Houston. TX. 770026986
                                General Services     Commission would like   to implement a computerized
 71Ys5Msa5
                                system of supplying copies of certain       documents.    Charges for such
                                copies would be accumulated and billed     to the requesting party at the
 6W Broadway. Sulld 312         close of each month to provide an efficient       and expeditious    means of
 Lubbock. TX. 79401-2479        handling the open records requests.       You further state that       if the
 8o8n47.5255                    service   to a particular  party proves to be voluminous and costly,          a
                                bid deposit    will be required   to cover the cost of at least          three
 4309 N. Tenlh. Suite 6         months service.
 McAllen. TX. 75501-1665
 5121882-4547                     The basic question which must be ansvered is whether the proposed
                                     of billing
                                system              after the copies have been seat out constitutes    a
 200 MaIn Flua, SUI10 400
                           violation    of    article    III, section  50 of  the  Texas Constitution.
 SanAntonio. TX.75505.2797 Section 50 providea:~
 51212254191
                                                   The Legislature       shall have no power to give
                                             or to lend, or to authorize        the giving or lending.
. AtI Equal Opptiunltyl
  Afllrma:ive Action Employer                of the credit of the State' in aid of. ok to any
                                             person,      association      or   corporation,   whether
                                             municipal or other,         or to pledge the credit     of
                                             State in any manner whatsoever,        for the payment of
                                             the liabilities.       present   or prospective,   of any
                                             individual,     association    of individuals,   municipal
                                             or other    corporation    whatsoever.




                                                                p. 1605
        .,
.            Mr. Homer A. Foerster      - Page 2       (MU-461)
*   .




                    you have advised that the state auditor has relied upon Attorney
             General Opinion R-2358 (1951). since 1951 to take audit exception to
             other state agencies’         practices     similar   to that which you propose.
             Attorney General Opinion R-2358 (1951) states.              with regard to section
             50 of article       III.  that “our laws contemplate,         it seems, that State
             offices      or enterprises,        the management of         which    requires     the
             collection     of public    funds or charges, should be operated on a cash
             basis.”      To defer the payments of charges for copies of public records
             by means of a monthly billing           of the accumulated charges is just such
             an extension         of  the    state’s      credit   which    is  constitutionally
             proscribed.       Although     the State       Purchasing   and General      Services
             Commission might benefit          from reduced administrative         costs   through
             utilization     of the deferred        payment arrangement, the potential           for
             default     of payment cannot be overlooked.            Administrative     expediency
             cannot override constitutional           limitations.

                    You have directed   our attention   to Hi%arty v. James. 453 S.W.Zd
             220 (Tex. Civ. App. - Austin 1970. no writ), as precedent                 for the
             deferred billing    plan.   In that case,   the court of civil     appeals held
             that an act of the legislature     which required that payment in full for
             cigarette    tax stamps be made within fifteen        days from .the date the
             stamps were received by the distributor        did not violate    section 50 of
             article   III of the Texas Constitution      for the reason that it was not
             an extension of credit to anyone.owing a debt to the state of Texas.
             The court determined that the distributor        wa8.a tax collector     of a tax
             upon the transaction      which was collectible      from  the consumer.      The
             distributor    was in much the same role as a retailer        of items taxable
             under the Sales, Excise and Use Tax, article         20.01, Taxation-General.
             The court stated:

                         The Legislature,   in this instance. has made, and
                         commendably we believe,    an effort  to partially
                         relieve  the burden of the purchaser of cigarette
                         stamps required to pay in advance a tax which he
                         does not owe by granting him fifteen  days of grace
                         within which .to recoup the cost of the stamps or
                         the tax which they represent.

             The crucial   distinction  between the situation   in McCarty v. James,
             supra. and the plan to defer payment which you propose is that the
             party requesting     a copy of the public   record pursuant to article
             6252-17a is the very party who owes the state for the service,  whereas
             the person paying for cigarette      stamps is merely responsible   for
             collecting  the tax from the consumer who owes it.

                   Your proposal includes the requirement of a deposit,  pursuant to
             section   11 of article  6151-17a to cover the coat of at least three
             months service from parties     whose request for copies are voluminous
             and costly.    Section 11 is captioned “Bond for payment of costs for
             preparation of public records or cash prepayment,‘* and provides:




                                                   p. 1606
          .   .
     -.       ‘>
.a                 Mr. Homer A. Foerster     - Page 3     (MW-461)




                                     A bond      for   payment of   costs for        the
                               preparation      of   such  public   records,      or   a
                               prepayment in cash of the anticipated         costs   for
                               the preparation     of such records,  may be required
                               by the head of the department or agency ,a~ a
                               condition    precedent   to the preparation     of such
                               record where the record is unduly costly and its
                               reproduction    would cause undue hardship to the
                               department or agency if the costs were not paid.

                   The bond or cash prepayment provision is a measure designed to protect
                   an agency from the unnecessary      use of man-hours,     equipment,  and
                   supplies in preparing public records in the event that the requesting
                   party withdraws its request or refuses to pay for the records when
                   they are ready.     The procedure is completely   in keeping with the
                   purpose of article   III, section 50 of the Texas Constitution.    Such a
                   procedure  may be implemented by the State Purchasing and General           ,
                   Services Commission.

                                                    SUMMARY

                                     Article    III.     section   50 of    the   Texas
                               Constitution,   prohibits     the State Purchasing and
                               General Services      Commission from deferring    until
                               the end of each month the collection         of charges
                               for copies of public records.        The commission may
                               require    a deposit    to cover the cost of copying
                               public records pursuant to section        11 of article
                               6252-17a. V.T.C.S.




                           :                                    Attorney   General of Texas

                   JOHNW. FAINTER, JR.
                   First Assistant Attorney     General

                   RICHARDE. GRAY III
                   Executive Assistant Attorney     General

                   Prepared by Rick Gilpin
                   Assistant Attorney General

                   APPROVED:
                   OPINIONCOMMITTEE

                   Susan L. Garrison,    Chairman
                   Robert Gauss
                   Rick Gilpin



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