Untitled Texas Attorney General Opinion ( 1948 )

AUHTIN u.TExas PRICE DANIEL ATTORNEY GENERAL November 8, 1948 Dr. J. G. Flowers, President Southwest Texas State Teachers’ College San Marcos, Texas Opinion No. V-715 Re: Legality of payment to San Marcos by South- west Texas State Teoch- ers’ College for police and fire protection and other like public serv- ices. Dear Dr. Flowers: Your request for opinion is as follows: “May the Southwest Texas State Teachers College pay the City of San Marcos for the fol- lowing public services: Police protection, fire protection, street operation and maintenance, and other miscellatieous official sexvic,es? “Basic Data “‘1. The College has recently acquired from the Federal Government title te 150 apartments and a service-office building located on land which has been owned by the College. During the War the Federal Govec~nmenf built this project as a defense housing project and pard rhe College ren.t on the land. “2. At rb,e clo,s9 of th,e War thi,s prqject was converted into a Veteran Studeryt Housing Projec,t and was continued under the administration of the Federal Housing Authorities. Federal Authorities discontinued its operation on October 1, 1948.~ The rents heretofore collected by the Federal Govern- ment will now be collected by the College and will be deposited in our Local Account. “3. During the time the Federal Public Hous- ing Authorities operated the unit, the said Feder- al Public Housing Authorities paid the City of San Dr. J, G. Flawerg, Page 2 (V-715) Marcos $1,9gO,OO per year for the services men- timed above. M It affirmatively appears from the information given in your letter that the prsperty therein mentioned, formerly owned by the Federal Government, is now owned by the Southwest Texas State Teachers’ College, and hence is now public property of the State in common with ~11 other property of the College. We as- sume, although yau do not say so, that payment for the services specified in yeur letter to be rendered by the City of San Marcos to the College is to be paid from the r.ents received from students of the College, and that such rental or fees are to be deposited in the local account of the College. This revenue constitutes public funds. This department so held in Opinion No. O-1662, a copy of which is herewith enclosed. The expenditure of such local funds by certain desig- nated governing boards, such as the Board of Regents of the State Teachers’ Colleges, is governed by the provisions of Article 2654d, V.C.S., and Subsection (3) of H.B. 246, 50th Legislature. Said Article 2654d provides in part as follows: “Sec. 1. The governing boards of . . . includ- ing . . . the Southwest Texas State Teachers’ Col- lege at San Marco@ may retain control respectively of the fallowing sums of money collected at each of said several institutions in carrying out the func- tions of an educational institution, such as funds collected from student fees of all kinds; charges for use of rooms and dormitories, receipts from meals, cafes and cafeterias, fees on deposit refund- able to students under certain conditions; receipts from school athletic activities’ t . 0 0 all other fees and local institutional income of a strictly local na- ture arising out of any by virtue of the educational activities ar research or demonstration carried out by each and all of the several schools.” “Section ga. This law shall be subordinate and subservient to the biennial appropriation bill for the support of the several institutions herein mentioned.” The general provisions of the biennial appropriation for the educational institutions of the State, H.B. 246, 50th Legisla- ture, are in part as follows: 4, . * . or proceeds from the sale of such prop- arty, from labor performed, from the sale of ma- terials, crops and supplies, from fees, and any and all other receipts, shall become and are hereby ap- Dr. .I. G. Flowers, Page 3 (V-715) propriated as maintenance or contingent funds to be expended under the direction and with the ap- proval of the governing board having jurisdiction. Said governing boards are authorized to use out of the proceeds of said receipts and funds, in accord- ance with the provisions of this act, such amounts as they shall deem necessary for the support, main- tenance, operation and improvement of said institu- tions. . .” We assume that in submitting your request you have in mind such police and fire protection, street operation and main- tenance, and other miscellaneous services rendered by the City of San Marcos enjoyed in co-on by all citizens or institutions within the confines of the corporate limits of the city. This opin- ion is written upon that assumption. The Board of Regents of the State Teachers’ College is created by legislative enactment, and it has only such power and authority as is expressly conferred upon it by the Legislature or such as may reasonably be implied from that expressly granted. It will be observed by the provisions of Section ga of Article 2654d, V.C.S., quoted above, that these local funds are subject to appropriation by the Legislature and may not be other- wise expended. We do not construe the foregoing statutory pro- visions-and there are no others presently existing-as author- ity for the expenditure of thase local funds by the College or its Board of Regents for the purposes enumerated in your letter. It seems quite clear to us that unless the College re- ceives some special service from the City, not enjoyed in com- mon by all citizens and institutions within the corporate limits of the City, some of which may be tax-exempt as is the College, payment for such services enumerated in your letter would be precluded by Section 51 of Article III of the Constitution, which provides: “The legislature shall have no power to make any grant or authorize the making of any grant of public money to any individual, association of in- dividuals, municipal or other corporation whatso- ever.” We do not mean to hold that the expenditure of public funds for police and fire protection, maintenance of streets, etc,, is not for a public purpose, but if paid to the city merely for the privilege of enjoying these public services in common with all to whom the city owes these services in any event, such a payment would constitute a donation clearly forbidden LSr..J. Q. Flowers, page 4 (~~-715) b t&e ferepiiq Constitutional provision ft4$%?refare fcvllcw’s f,rom what we have said above that it i$ our opinion that %ere is no legal authority foP the South- we& Texas Stale Teachers’ College te pay the City of San Mar- pas for the 8esviceS mtMieried in your letter. , . Lo~4 &M&J of the Southwest Texas State Teach- erg ’ Coll~(e may txot be u:‘e~d CO pay the City of Sgn -CO& for p&c@ and fire protection, operation dnd maintervrlbce of streets, and other municipal services, which are enjoyed in common by all citiaens and in- &,UtUkjM@ wU&& tpra c3mperate limit6 of the city. (hm&td~m, Sec%‘i@ti!X, Art. III. Very truly yours, I ATTORNEYGENERALOFTEXAS Assist& ATTORNEY GENERAL .