C



               THE      ATTCBIRNEY           GENERAL
                            OI’   TEXAS


                            November 11, 1986




    Honorable Bob Bullock                 Opinion No. ~~-575
    Comptroller of Public Accounts
    L.B.J. State Office Building         Re: Whether "local funds" main-
    Austin, Texas   78774                tained by colleges and universities
                                         are subject to appropriation and
                                         related questions

    Dear Mr. Bullock:

         You ask several que:itions concerning local funds maintained
    outside the treasury by co:.l.egesand universities and state agencies.
    You give the. following exanples of funds deposited in local accounts
    under section 51.008 of the Education Code or the Appropriations Act:

                 1. Funds from auxiliary enterprises, such as
              athletic activities, book stores and cafeterias;

                 2. constitutional college building amendment
              funds;

                 3. amOuntS    derived from non-instructional
              services, s.       soil testing by Texas A & M
              University;

                 4.   endowment funds;

                 5. federal    :iunds for     student   loans   and
              research;

                 6.   gifts and donations:

                 7. fees for such items as dormitories, student
              newspapers, and student health centers;

                 8. funds maintained in local bank accounts
              which are not required to be placed in the
              treasury by eit'wr the Funds Reform Act, the
              Education Code, or other specific statutes.

         You ask whether the following information retained by state
    agencies and institutions elfhigher education on these local funds is
    subject to the Open Records Act:




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Honorable Bob Bullock - Page 2   (JM-575)




             1. Information concerning gifts and donations
          to colleges and rtniversities,such as the name of
          the donor, the amunt, any restrictions placed on
          the donation, ar.dthe disposition of the donation;

             2. accounting records and supporting documen-
          tation concerning the source and disposition of
          receipts from amiliary enterprises operated by
          colleges and unimrsities and of all other local
          funds maintained by colleges and universities;

             3. accounting records and supporting documen-
          tation concernin public and private grants to
          colleges and universities;

             4. accounting records and supporting documen-
          tation concerning public and private grants to
          state agencies.

     You ask a broad que:ition about several general categories of
information, and our answex must necessarily be generalized. The Open
Records Act applies to

          [a]11 information collected, assembled, or main-
          tained by governmntal bodies pursuant to law or
          ordinance or in connection with the transaction of
          official business. . . .

V.T.C.S. art. 6252-17a, 6:(a). State colleges and universities and
state agencies are governmntal bodies subject to the Open Records
Act.   See, e.g., Texas Industrial Accident Board v. Industrial
Foundation of the South,-540 S.W.Zd 668 (Tex. 1976); Hubert v.
Harte-Hanks Texas Newspaper_s,Inc., 652 S.W.2d 546 (Tex. App. - Austin
1983, writ ref'd n.r.e.); Attorney General Opinions H-436, H-242
(1974). The Open Recordr; Act as a general rule would authorize
members of the public to request access to the records of state
colleges and universities i.ndstate agencies concerning gifts, grants,
and local funds. See, e.g:, Open Records Decision Nos. 220 (1978)
(records of bank account, opened in name of city); 121 (1976)
(financial records of University of Texas Division of Extension).
When a member of the public requests particular records, the
governmental body would be entitled to raise exceptions to public
disclosure set out in sect:ion3(a) of the Open Records Act; whether
particular records would he: excepted from public disclosure must be
determined on a case-by-car:ebasis under the procedures set out in the
Open Records Act. See, e.&, Open Records Decision No. 121 (1976)
(financial records of un:%ersity extension division excepted from
public disclosure by section 3(a)(3) of article 6252-17a, V.T.C.S.).

     You next ask the following questions about the appropriation of
local funds and gift and grant funds:




                             p. 2566
Honorable Bob Bullock - Pag'z3    (JM-575)




             1. Are local funds maintained by universities
          and colleges sti,ject to appropriation by the
          legislature?

             2. Are grant); and gifts received by state
          agencies and maintained in local accounts subject
          to appropriation?

     Your questions do not focus on particular funds, gifts, or
grants. Nor do they inquire about the construction of particular
statutes. We can provide generalized answers to your questions, with
the qualification that the statutes, Appropriation Act provisions, and
constitutional provisions applicable to particular funds might require
a different result in some cases. See, e.g., Tex. Comet. art. XVI,
56; Attorney General Opinims M-944 (1971); M-91 (1967).

     Prior opinions of this office have determined that local funds
maintained by universities and colleges are subject to appropriation
by the legislature. --  See:,e.g.,  Attorney General Opinions B-456
(1974); V-1427 (1952); V-7:.5 (1948). See generally Attorney General
Opinion MW-576 (1982). The following Education Code provisions apply
to college and university l#,calfunds:

            Section 51.001.   Institutions to which Applicable

           Subject to Section 51.008 of this code, the pro-
        visions of this sulchapter apply to:

           (1) each inst:itution and branch       of   The Uni-
        versity of Texas S,ystem;

            (2)  each institution, agency, and service of The
         Texas A & M University System;

            (3)   Texas A & :CUniversity;

            (4)   Texas Tecl University;

            (5)   East Texas State University;

            (6)   North Texas State University;

            (7)   Sam Houston State University;

            (8)   Stephen F. Austin State University;

            (9)   Southwest Texas State University;

            (10) Sul Ross Wate University;

            (11) West Texas State University;



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Honorable Bob Bullock - Pages4             (~~-575)




            (12) Texas Eas,:ernUniversity; and

            (13) each pub:t:icjunior college to the extent
         possible.

            451.002. Funds Subject to Control

            (a) The goveming    board of each institution
         listed in Section 51.001 of this    code my  retain
         control of the following sums of money collected at
         the institution, tiubject to Section 51.008 of this
         code.

            (1)           student f,zesof all kinds;

            (2)           charges f')ruse of rooms and dormitories;

            (3)           receipts Erom meals, cafes, and cafeterias;

            (4)    fees on deposit                refundable   to   students
         under certain conditions;

            (5)           receipts E~comschool athletic activities;

            (6)   income from student publications and other
         student activities;

            (7)   receipts from the sale of publication
         products and misceLlaneous supplies and equipment;

            (8)   students' voluntary deposits of money for
         safekeeping;

            (9)   all other fees and local institutional
         income of a strictly local nature arising out of and
         by virtue of the educational activities, research,
         or demonstrations carried on by the institution; and

            (10) donations and gifts to the institution.

            .     .   .   .

            851.006. Funds           not     to    be   Used   to   Increase
         Salaries

            No part of ans' of the funds listed in Section
         51.002 of this code shall ever be used to increase
         any salary beyond the sum fixed by the legislature
         in the general appropriations act, and the pro-
         visions of this subchapter are subordinate to the




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Honorable Bob Bullock - Page:5    (JM-575)




        general appropriat,$ns act for the support of each
        institution.

            151.008. Certain Receipts        to be Deposited   in
         State Treasury

            (a) The govern:tngboard of every state institu-
         tion of higher education is directed to designate
         special depository ksanks,subject to the approval of
         the state treasurer, for the purpose of receiving
         and keeping certain receipts of the institution
         separate and apart from funds now deposited in tie
         state treasury. The receipts here referred to are
         described in Subsection (b) of this section. . . .

            (b) The govern:ingboard of every state institu-
         tion of higher edu:ation shall deposit in the state
         treasury all cash receipts accruing to any college
         or university unde:rits control that may be derived
         from all sources sxcept auxiliary enterprises, non-
         instructional ser+es,     agency, designated, and
         restricted funds, endowment and other gift funds,
         student loan funzs, and Constitutional College
         Building Amendment funds. . . .

            554.004. Retent:ionand Use of Funds

            All tuition, local funds, and fees collected by
         an institution of?zgher education.shall be retained
         and expended by t'1s institution and accounted for
         annually as providzd in the general appropriations
         act. (Emphasis ad&d).
         -
Educ. Code §§51.001, 51.002!,51.006, 51.008, 54.004.

     Pursuant to section 51,006 of the Education Code, the local fur.ds
described in section 51.002 are subject to appropriation by the legis-
lature. See Attorney Gene:ral Opinions H-456 (1974); V-715 (1948).
See also Attorney General Cpinion V-1427 (1952). The current Appro-
priations Act appropriates the local funds of colleges and universi-
ties. General Appropristion~;Act, Acts 1985, 69th Leg., ch. 980, art.
III, §1.

     You finally ask whet:lar grants and gifts received by state
agencies and maintained in :Local accounts are subject to appropria-
tion. You do not inquire about a particular agency, and any question
about the appropriation of 8ifts or grants received by a particular
state agency must be answered in reference to the statutes, constitu-
tional provisions, and case:.awrelevant to that agency.




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Honorable Bob Bullock - Paga 6    (JM-575)




       The State Funds Refom   Act provides, with certain exceptions,
that

           gifts,   grants, donations, and      other   funds
           collected or received by a state agency under law
           shall be deposited in the treasury, credited to a
           special fund or Funds, and subject to appropria-
           tion only for t!m purposes for which they are
           otherwise authorized to be expended or disbursed.
           A deposit shall lx made at the earliest possible
           time that the treasury can accept those funds, but
           not later than the seventh day after the date of
           receipt.

V.T.C.S. art. 4393-1, 44.0(,4(a);see, e.g., Attorney General Opinions
.JM-391 (1985); MN-590, MN-454 (1982). Funds deposited in the State
Treasury may only be withdrawn by appropriation. Tex. Const. art.
VIII, 56. Gifts and grants to state agencies named in the general
appropriations act are appropriated by the following provisions:

              Sec. 19. ACCLPTANCE OF GIFTS OF MONEY. All
           bequests and gif'ts of money to state agencies
           named in this AC,: are hereby appropriated to the
           agency designated by the grantor and for such
           purposes as the grantor may specify, subject to
           the following:

              (1) All such bequests and gifts of moneys,
           unless exempted 'JJ specific statutory authority,
           shall be deposited into the State treasury and
           shall be expend&, in accordance with the pro-
           visions of this Act.

              .   .   .   .

              Sec. 20. FEDXIW FUNDS. All funds received
           from the Unite11 States government by state
           agencies and institutions named in this Act are
           hereby appropriated to such agencies for the
           purposes for which the federal grant, allocation,
           aid, payment or reinbursement was made subject to
           the following:

              (1) Federal    funds     including  unexpended
           balances shall b'z deposited to and expended from
           the specific pogram       identified under each
           agency's appropriation bill pattern.

              No federal funds may be expended for programs
           or activities other than those which have been
           reviewed by the Sixty-ninth .Legislature and



                                 p. 2570
    Honorable Bob Bullock - Page 7     (JM-575)

.




              authorized by specific language in this Act or
              encompassed by an agency's program structure as
              established by this Act.

    General Appropriations Act, Acts 1985, 69th Leg., ch. 980. art. V,
    5519. 20.

         Article XVI, section 6, of the Texas Constitution makes some
    special provisions for the handling of grant funds received by state
    agencies responsible for providing services to persons who are
    physically or mentally disz.bled. This provision authorizes the state
    agencies to accept money from private or federal sources to provide
    facilities and services to assist the disabled. State agencies may
    deposit money accepted under article XVI, section 6 in the state
    treasury or in another secure depository and may spend it for the
    purpose for which it was given "without the necessity of an appropria-
    tion, unless the Legislature, by law, requires that the money be
    expended only by appropr1z.tion.u Tex. Const. art. XVI, 56. If is
    therefore necessary to consult the statutes applicable to funds
    received under article XVI, section 6, of the Texas Constitution to
    determine whether federal grants and gifts to a particular agency are
    subject to appropriation. See, e.g., Human Res. Code §§91.056,
    111.055.

                                 SUMMARY

                 The Open Records Act applies to information
              about local fund:3 held by state colleges and
              universities. Whether particular information is
              available to the public or excepted from public
              disclosure must be determined on a case-by-case
              basis in accordance with the procedures esta-
              blished in article 6252-17a. V.T.C.S. Local funds
              maintained by universities and colleges and gifts
              and grants received by state agencies and main-
              tained in local accounts are as a general rule
              subject to appropriation. However, federal grants
              and gifts received under article XVI, section 6,
              of the Texas Gonstitution by state agencies
              responsible for providing services to disabled
              persons may be s'!entwithout appropriation unless
              the legislature provides by law that the money be
              expended only on appropriation.

                                           ,   Very/zr



                                               JIM     MATTOX
                                               Attorney General of Texas




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Honorable Bob Bullock - Page!8     (JM-575)




JACK HIGHTOWER
First Assistant Attorney Gewral

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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