CRAWFORD     C.   MAR-rxiw
                             AUSTIN.   TEXAS    18111
  AITORN&Y   CiENERAL

                                          May 18, 1971
                                                     2 --jLfl-          47
       Honorable G. F. Mutscher                 Opinion No. M-861
       Speaker, House of Representatives
       Capitol Building                         Re:     Constitutionality of
       Austin, Texas 78711                              Senate Bill 56 authorizing
                                                        tuition equalization grants
                                                        to students of approved
                                                        private colleges and uni-
       Dear Mr. Mutscher:                               versities in Texas.

                 We have received your request for an opinion of this
       office as follows:

                  "Your attention is called to Senate Bill #56,
             copy enclosed, which is presently being considered
             by the House of Representatives.  Your opinion is
             respectfully requested as to whether the bill if
             enacted would in any respect violate the Texas Con-
             stitution, and most specifically, whether it would
             violate Article III, Section 51, or Article I,
             Section 7. of the Texas Constitution."

                 The question for resolution       is presented in Section 1
       of the proposed bill which reads:

                  "Section 1. In order to provide the maximum
             possible utilization of existing educational re-
             sources and facilities within this State, both
             public and private, the Coordinating Board, Texas
             College and University System, is authorized to
             provide tuition equalization grants to Texas resi-
             dents enrolled in any approved private Texas
             college or university, based on student financial
             need."




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lion. G. F. Mutscher, page 2                   (M-861)


          It is the opinion of this office that Senate Bill #56
does not violate either Article I, Section 7, or Article III,
Section 51, or other parts of the Texas Constitution.

          Article I, Section 7, Texas Constitution, reads as follows:

          "NO money shall be appropriated, or drawn
     from the Treasury for the benefit of any sect,
     or religious society, theological or religious
     seminary: nor shall property belonging to the
     State be appropriated for any such purposes."

          Article III, Section 51, reads, in its pertinent part,
as follows:

          "The Legislature shall have no power to
     make any grant or authorize the making of any
     grant of public moneys to any individual, asso-
     ciation of individuals, municipal or other corpo-
     ration whatsoever; . . .I'

          The questions presented by Senate Bill #56, and your
letter were passed on by this office in Opinion NO. M-391 while
considering Senate Bills 631 and 485 in 1969. Such opinion de-
termined that the Senate Bills considered did not violate Article
I, Section 7, Article III, Section 51, or Article XVI, Section 6,
of the Texas Constitution.

          The problem of separation of Church and State has been
frequently discussed, and is presently before the United States
Supreme Court in the cases Tilton v. Richardson, Lemon v. Kurtzman,
and DiCenso v. Robinson.  This opinion, of course, is subject to
the final outcome of these cases.

          In the case Board of Education v. Allen, 392 U.S. 236,
the United States Supreme Court reviewed a New York law requiring
local public school authorities to loan textbooks, free of charge,
to all students, grades seven through twelve, including those in
private schools. The Court upheld the New York law stating:

          "Everson' and later cases have shown that the
     line between state neutrality to religion and state
     support of religion is not easy to locate. The
     constitutional standard.i.6 the separation of Church
lEverson v. Board of Education, 374 U.S. 1 (1947)           -4180-
        .      .




Hon. G. F. Mutscher, page 3                          (M-861)



     and State. The problem, like many constitutional
     problems in constitutional law, is one of degree."

             The Court then set out a test to measure the degree
declaring:

          "The test may be stated as follows: what are
     the purpose and then primary effect of the enactment?
     If either is the advancement or inhibition of re-
     ligion then the enactment exceeds the scope of
     legislative power as circumscribed by the Constitution.
     That is to say that to withstand the strictures of
     the Establishment Clause there must be a secular
     leqislative purpose and a orimarv effect that neither
     advances nor inhibits religion."   (Emphasis added.)

          The primary purpose of Senate Bill 56, as set out in
Section 1, is to serve a State or public purpose by 0 . . . uti-
lization of existinq educational resources and facilities within
this State, . . ." (Emphasis added.) with all the financial bene-
fits to be derived therefrom.  The tuition aid is provided to in-
dividuals, so the benefit to a particular religion is "indirect"
and "remote" as opposed to "primary".

          There can be no doubt that it is in the public interest.
to provide for the education of the student citizens of this State.
The subject has been foremost in the minds of our citizens since
prior to the Texas Declaration of Independence from Mexico, and
exists today in our Texas Constitution.  Article VIII, Sections 1
and 10.

          It is submitted that Senate Bill #56 meets the Supreme
Court's test of having fl . . . a secular legislative purpose and
a primarv effect that neither advances nor inhibits religion."
(Emphasis added.)

           Courts in other states have followed the reasoning of the
Supreme Court of Kentucky in Kentucky Buildinq Commission v. Effron,
310 Ky. ‘355, 220 S.W.2d 836 (1949) wherein the Court announced:



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Hon. G. F. Mutscher, page 4                      (M-861)



          "It is well settled that a~ private agency may
     be utilized as the pipe-line through which a public
     expenditure is made, the test beinq not who receives
     the money, but the character of the use for which
     it is expended."  (Emphasis added.)

See also: In re Opinion of the Justices, 113 A. 2d 114 (Supreme
Court, New Hampshire, 1955); Craiq v. Mercy Hospital-Street
Memorial, 209 Miss. 427, 45 So. 2d. SO9 (1950); Leqat v. Adorno,,
138 Conn. 134, 83 A. 2d. 185 (1951); Roe v. Kervich, 42 N.J. 191,
199 A. 2d 834 (1964); and Attorney General Opinions C-644 and C-
719 which approved contracts and tuition payments with religious
institutions under the theory above stated.

          Further, "It is plain that an expenditure is not neces-
sarily barred because individuals as such may profit . . .", 51
Am.Jur. 281 Taxation, Sec. 330, et seq. and authorities cited
therein. See also Attorney General Opinions C-474, C-719 and
M-391.  In Attorney General Opinion V-1067 (1950) we stated, in
part, as follows:

           "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 "private"
     purpose. The benefits of the State from an ex-
     penditure   for a "public purpose" is in the nature
     of consideration and the funds expended and there-
     fore not a gift even though private persons are
     benefited therefrom."'

          It is a legislative function to determine what consti-
tutes a "public purpose" and will not be reversed by the courts
unless manifestly arbitrary and incorrect. State ex rel. McClure
v. Haqerman, 155 Ohio St. 320, 98 N.E.2d 835 (1951). Where a low
rent housing project was objected to as being a prohibited gift
to individuals, our Supreme Court in Housinq Authoritv of City of
Dallas v. Hiqqinbothom, 135 Tex. 158, 143 S.W.2d 79 (1950) held
that the Legislative Declaration of the purpose of the legislation
must be given weight by the Courts.


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Hon. G. F. Mutscher, page 5                      (M-861)



           It is therefore our opinion that Senate Bill #56 declares
a secular legislative or public purpose and is not violative of the
Constitution of the State of Texas.

          Our only reservation concerning Senate Bill No. 56 is
that, if passed, the Coordinating Board, under Section 6, should
make sufficient regulations to prevent forced religious courses
or activity on the recipients of the funds by the schools attended..
mace   Mann League of U.S. v. Bd. Public Wks,, 220 A2d 51 (Md.1966).
                           SUMMARY

          Senate Bill No. 56, providing for tuition
     equalization grants, states a primary purpose to
     provide the maximum possible use of existing re-
     sources and facilities in this State and therefore
     does not violate the separation of church and state
     doctrine of Article I, Section 7 or the prohibition
     of grants of public funds to individuals of Article
     III, Section 51 of the Texas Constitution.




                                 Attor   General of Texas

Prepared by Melvin E. Corley
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman




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Hon. G. F. Mutscher, page 6                    (M-861)



Rex White, Jr.
J. C. Davis
Jack Goodman
Bob Flowers

HEADE F. GRIFFIN
Staff Legal Assistant

ALFREDWALKER
Executive Assistant

NOLA WRITE
First Assistant




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