                             EENEY          GENE

                              TEXAS




                    December 4, 1969


Hon. J. Pat O'Keefe                   Opinion No, M-531
Executive Director
Texas Fine Arts Commission            Re:    Whether funds appropriated
825 Brown Building                           in Item 7 of the General
Austin, Texas 78701                          Appropriations Act, 61st
                                             Legislature, R.S., 1969,
                                             may be expended by the Fine
                                             Arts Commission for the pur-
                                             poses stated to local com-
                                             munities in the State of
Dear Mr. O'Keefe:                            Texas.
         Your request for an opinion reads, in part, as follows:
          "The Texas Fine Arts Commission is engaged
     in providing a touring program to benefit citizens
     of all ages in communities throughout the State
     of Texas. By sharing the costs in providing
     quality cultural programs (traditional, con-
     temporary and classical), we intend to crystalize
     local interest in and support for the various
     creative arts and to bring to communities and
     neighborhoods that would not otherwise be able
     to afford such programs musical ensembles, choirs
     and other co~ncertgroups, drama and dance theatre
     groups and other similar performing units and
     visual art displays.
          "In order to carry out this program, the
     Legislature has appropriated $40,000 per year
     for the biennium ending August 31, 1971, to the
     Fine Arts Commission. The Comptroller of Public
     Accounts has questioned whether this money may
     be expended for such purpose in view of the pro-
     .visionsof Sections 50 and 51 of Article III of
     the Constitution of Texas. I, therefore, request
     an opinion on the following question:
          'May funds appropriated in Item 7 of the ap-
     propriations to the Fine Arts Commission for the


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Hon. J. Pat O'Keefe, page 2 (M-531)


     biennium ending August 31, 1971, be expended
     by the Fine Arts Commission for the purpose as
     outlined above to local communities in the State
     of Texas?"
          The Texas Fine Arts Commission was created by the
provisions of Article 6144g, Vernon's Civil Statutes. Section
3 provides the duties and responsibilities of the Fine Arts Com-
mission and reads, in part, as follows:
          "Sec. 3. The duties and responsibilities
     of the Commission shall be:
         "a. To foster the development of a re-
    ceptive climate for the fine arts that will
    culturally enrich and benefit the citizens of
    Texas in their daily lives, to make Texas visits
    and vacations all the more appealing to the
    world and to attract to Texas residency ad-
    ditional outstanding creators in the field of
    fine arts through appropriate programs of
    publicity and education, and to direct other
    activities such as the sponsorship of art
    lectures and exhibitions and central compila-
    tion and dissemination of information on the
    progress of the fine arts    Texas."
                                   in




          Section 5 provides that "Appropriations may be made by
the Legislature to the Commission to carry out the purposes of
this Act."
          House Bill 2, Acts of the 61st Legislature, 2nd C.S.,
1969 (General Appropriations Act for the biennium ending August
31, 1971), contains the following appropriation to the Fine Arts
Commission:
                                             "For the Years Ending
                                          August 31,         August 31,
                                            1970               1971
     "7. Touring Projects                $40,000             $40,000"

            The rider relative to the expenditure of Item 7, supra,
provides:
         "The expenditure of moneys appropriated by
    Item 7 on any project shall be conditioned upon
    the funds being matched by private or Federal


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     .




Hon. J. Pat O'Keefe, page 3 (M-531)


     funds. An affidavit signed by the Executive
     Director of this Commission that the matching
     sums have been expended, or have been made avail-
     able and will be expended shall be considered
     suitable evidence by the Comptroller of com-
     pliance with this provision.
          It is our opinion that Subdivision (a) of Section 3
and Section 5 of Article 6144g, constitute pre-existing,law
within the meaning of Section 44 of Article III of the Co,nsti-
tution of Texas for the appropriation contained in Item 7 to
the Fine Arts Commission. Consequently, that appropriation may
be expended for the purposes outlined in your request, unless
prohibited by Sections 50 and 51 of Article III of the Constitu-
tion of Texas. Section 50 of Article III of the Constitution of
Texas provides as follows:
         "Sec. 50.  The Legislature shall have no
    power to give or to lend, or to authorize the
    giving or lending, of the credit of the State
    in aid of, or to any person, association or
    corporation, whether municipal or other, or to
    pledge the credit of the State in any manner
    whatsoever, for the payment of the liabilities,
    present or prospective, of any individual, as-
    sociation of individuals, municipal or other
    corporation whatsoever.
          The pertinent provisions of Section 51 of Article III
of the Constitution of Texas provide:
         "Sec. 51. 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, mur$cipal or other
    corporations whatsoever; . . .
           A grant of State funds for governmental use or purposes
as distinguished from private purposes is not prohibited by Sec-
tions 50 or 51 of Article III of the Constitution of Texas or anv
other provision of our State Constitution. State v. City of      "
Austin, 160 Tex. 348, 331 S.W.2d 737 (1960); Bexar County v.
Linden, 110 Tex. 339, 220 S.W. 761 (1920); Road Distric; No. 4,
m      County v. Allreg, 123 Tex. 77, 68 S.W.2d 164 ( 9 4);
Jefferson County <~ Board of Count and District Road Indebtedness,
143 Tex. 99 18           9 8 ( 4')y City of Aransas Pass v. Keel-
ing, 112 Tei. 3~9~'%?S.~.    8:: 71423).


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                                                           .   .




Hon. J. Pat O'Keefe, page 4 (M-531)


          Applying the principle announced in the above cited
cases to the facts presented in your request, we have concluded
that the expenditure of State funds for the purpose of sharing
costs in providing cultural programs to various communities and
neighborhoods in the State is for a governmental purpose rather
than for a private purpose. Article 6144g specifically states
that it is the duty and responsibility of the Fine Arts Commis-
sion "to foster the development of a receptive climate for the
fine arts that will culturally enrich and benefit the citizens
of Texas in their daily lives."
          You state in your request that the proposed expenditure
of Item 7 is for the purpose to "crystalize local interest in
and support for the various creative arts."
          It is, therefore, our opinion that the expenditure of
Item 7 to the Fine Arts Commissi$n for the biennium ending August
31, 1971, is for the purpose of the development of a receptive
climate for the fine arts that will culturally enrich and benefit
the citizens of Texas in their daily lives" and is thus for a
governmental purpose as distinguished from a private purpose.
          You are accordingly advised that Item 7 of the appro-
priation to the Fine Arts Commission for the biennium ending
August 31, 1971, may be expended for the purposes described in
your request.
                    SUMMARY
         Funds appropriated in Item 7 of   the appro-
    priation to the Fine Arts Commission   for the
    biennium ending August 31, 1971, may   be expended
    for the purpose of sharing the costs   in providing
    cultural programs to communities and   neighborhoods
    in the State of Texas.
                               /Q




Prepared by John Reeves
Assistant Attorney General




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.   .   .




Ron. J. Pat O'Keefe, page 5 (IU-a-531)


APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vlce-Chalrman
Jack Sparks
Alfred Walker
Rex White
Jay Floyd
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WRITE
First Assistant




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