              THE   ATTORNEY    GENERAL
                       OF TEXAS


                        June 26, 1989



Ms. C. Kingsbery Ottmers        Opinion No.   JM-1063
public Counsel
public Utility Counsel          Re:    Whether a state agency
8140 Mopac                      may pay the temporary    fees
  Westpark III, Suite 120       assessed against accountants
Austin, Texas 78759             and engineers  in its employ
                                (RQ-1619)

Dear Ms. Ottmers:

     You refer to Attorney General Letter Opinion 88-79,
which concluded that a state agency is not prohibited by the
Texas Constitution from paying the attorney tax imposed by
Tax Code section 191.142 for any attorney in its employ on
the date on which the tax becomes due.

     You ask whether a state agency is likewise constitu-
tionally permitted   to pay the temporary    increase in fees
imposed on accountants    by V.T.C.S. article 41a-1, section
31. You also ask that our response cover all professional
employees affected by the temporary fee increases imposed by
House Bill 61. H.B. 61, Acts 1987, 70th Leg., 2d C.S., ch.
5, at 9. Section 31 of article 41a-1, added by House Bill
61, provided   for the temporary fee increases for accoun-
tants.   That bill also imposed similar fee increases on
physicians,   dentists,   optometrists,  chiropractors,    PsY-
chologists,   architects,   engineers,  real estate brokers,
securities   dealers, and veterinarians,     as well as the
temporary tax on attorneys addressed in Attorney        General
Letter Opinion 88-79. We will address the constitutionality
of a state agency paying such fee increases      for any such
professionals within its employ.1



     1. Attorney General Letter Opinion 88-135 noted that
the "fee" increases  imposed by House Bill 61 on engineers
had the legal character  of occupation taxes, their purpose
being, per the bill's caption, "raising revenue to support
                                        (Footnote Continued)




                              p. 5537
Ms.   C. Kingsbery Ottmers - Page 2   (JM-1063)




     Attorney General Opinion MW-251 (1980) concluded    that
the State Purchasing and General Services Commission    might
spend appropriated funds to pay the notary license fees of
employees if the executive director determined     that the
agency needed such notarial services and would receive     an
adequate  return    for such    expenditures.  The    opinion
discussed the language of article III, section 51, of the
Texas Constitution,   providing that the "Legislature   shall
have no power to make any grant or authorize the making    of
any grant of public moneys to any individual," and concluded
that it would not bar such expenditures so long as they were
"directly and substantially   related to the performance   of
the state's governmental function." Id., citing Barrinston
v. Cokinos, 338 S.W.2d 133, 140 (Tex. 1960); Brazoria Countv
v. Perry   537 S.W.2d 89 (Tex. Civ. App. - Houston       [lst
Dist.] 1676, no writ); see also Attorney General Opinions
H-133 (1973); WW-638 (1959): WW-433 (1958).

      Two briefs submitted in response to your request point
to the distinction made in Attorney General Opinion JM-313
(1985) and Attorney General Letter Opinion       88-79 between
"minimum     qualifications    for   public   employmentlU   and
"additional training and/or specialization      for additional
duties." Those opinions      indicated that payments     by the
state    for    obtaining   or    maintaining   such    "minimum
qualifications'@ of individual employees would be barred by
article III, section 51, of the constitution.

     The briefs distinguish payment of the tax on attorneys
from payment of the other temporary professional          fee
increases imposed by House Bill 61, suggesting that if the
latter fee is requisite to obtaining or maintaining       the
professional licenses in question, the state might be barred
from paying it as payment   for the obtaining or -maintaining
of "minimum qualifications."




(Footnote Continued)
state and local government."    The other '*fee" increases
imposed by that bill on members of other professions   would
thus appear to be, in fact, occupation   taxes as well, the
proceeds from each of those fee increases being subject to
identical provisions as to their apportionment between   the
foundation school fund and the general revenue fund.     See
Conlen Grain and Mercantile,   Inc. v. Texas Grain Sorchum
Producers Bd., 519 S.W.2d 620 (Tex. 1975).




                              p. 5538
Ms. C. Kingsbery Ottmers - Page 3   (JM-1063)




     Attorney General Opinion JM-313     (1985) first made the
distinction between  "minimum  qualifications"  and "additional
training and/or specialization"    in considering whether   the
bar dues of a prosecutor's office personnel could be paid
from the "hot check fund" established under article 53.08 of
the Code of Criminal Procedure. That opinion concluded that
the payment  of bar dues was an *'expense related to the
individual's profession   rather than an 'office expense'"
within the meaning of the article 53.08(e) provision       that
the "hot check fund" could be used only for 'defraying the
salaries and expenses of the prosecutor's office.*' While we
decline to review here        the appropriateness    of   these
distinctions in reaching the conclusion in Attorney     General
Opinion JM-313 that attorney bar dues were not authorized
expenditures under article 53.08, we now disapprove         any
implication in that opinion that such distinctions are to be
applied in determining the propriety of an expenditure      for
purposes of the constitutional      restrictions   set out in
article III, section 51, of the state constitution.          We
think that the proper test under article III, section 51,
absent more restrictive     statutory provisions      governing
specific expenditures, is that set out in Attorney      General
Opinion MW-251, i.e., whether the expenditure is "directly
and substantially    related to the agency's governmental
function," and whether the agency receives adequate      return
for its expenditures.

      Likewise, to the extent that Attorney General Letter
Opinion 88-79 relied on the fact that the payment of the Tax
Code section 191.142 attorney tax was not an expenditure for
obtaining or maintaining "minimum qualifications" of public
employment (payment of the tax not being requisite          to
maintaining the license) in concluding that a state agency
might constitutionally    pay the   tax for its      attorney
employees, we now disapprove that opinion's rationale, while
adhering to its result.      We think that payment     of an
employee's temporary attorney tax by a state agency is not
prohibited   by article III, section 51, of the         Texas
Constitution if the agency reasonably determines that such
expenditure is directly and substantially related to the
agency's governmental   function. The agency's decision     is
subject to review for abuse of discretion.         See, e.a
Count
1        chool                                192 S.W.2d 89;;
898 (Tex. Civ. App. - Eastland 1946, writ rLf#d n.r.e.).

     Therefore, in answer to your question whether a state
agency may constitutionally  pay the temporary increase in
fees imposed by House Bill 61 for accountants    and other
affected professionals in its employ, we conclude that if




                              p. 5539
Ms. C. Kingsbery Ottmers - Page 4   (JM-1063)




the responsible agency authority determines that the agency
will receive adequate return on such expenditures, that is,
that such expenditures would be directly and substantially
related to the agency's governmental function, the fees may
be paid by the agency.

     Since your question is whether such payments are con-
stitutionallv  permissible,  we do not address here any
statutory restrictions  which might apply to an agency's
payment of such fees, such as the appropriation items from
which such fees might be payable. We do caution that by
concluding that any agency may constitutionally     pay such
fees, we do not mean that an agency is reouired to pay them,
even if it determines   that it would receive an adequate
return on such expenditures.  We would also note that while
certain factors, such as whether the employee in question is
employed full-time or part-time, whether he also uses his
professional credentials in working outside the confines    of
state employment, or whether the professional credentials in
question are required or merely useful     in performing   his
duties, would certainly carry weight in determining   whether
the agency receives an adequate quid pro quo for paying the
fees, none of these factors standing alone would            be
determinative of the constitutional propriety of paying the
fees. So long as the agency reasonably determines that it
will receive an adequate return for the payments under the
test discussed above, the determination of whether to pay
fees of particular classes of professional employees     would
be a policy decision rather than a constitutionally mandated
one, subject of course to any statutory restrictions on such
payments.

     You also ask whether a state agency would be "constitu-
tionally correct" when it pays the temporary attorney     tax
under Tax Code section 191.142 for attorney employees     but
refuses to pay the temporary      fee increases    for other
professional employees upon whom House Bill 61 imposed fee
increases. We think that, absent distinctions       based on
race, gender, or other classifications which would trigger
heightened constitutional scrutiny of its actions, an agency
may, consistent with state and federal equal protection
principles, opt to pay the temporary fee or tax for some
kinds of professionals in its employ and not for others,   so
long as there is a "rational basis"        for its actions.
See. e.cr., Massachusetts Bd. of Retirement   v. Mursia,  427
U.S. 307 (1976). Since your question goes to the practices
of state agencies generally, we will not speculate as to
which factors to be considered    in a particular    agency's
operations might furnish such a "rational basis" for paying




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Ms. C. Kingsbery Ottmers     -   Page 5   (~~-1063)




the professional   fees of         some   groups   of   professional
employees but not others.

                           SUMMARY

           A state   agency is not prohibited      by
        article III,   section   51, of the     Texas
        Constitution from paying, for professionals
        in its employ, the temporary fee increases
        imposed on certain professionals     if   the
        agency determines   that such    expenditures
        would be directly and substantially   related
        to its governmental function. An agency may
        pay the fees of      some such classes     of
        professionals in its employ, but not others,
        if there is a rational basis for its actions.




                                          Jg:$g+
                                          Attorney General of Texas

MARY KELLER
First Assistant Attorney General

IOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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