Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
December 18, 1985
JIM MATTOX
Attorney General
Supreme Court Building Mr. Vernon M. Arrell OpinionNo. m-391
P. 0. BOX 1254s
Austin, TX. 78711. 2548
Commissioner
51214752501 Texas RehabilitationCo~issiou Re: Dispositionof income from
Telex 9101874.1387 118 East Riverside‘Drive RehabilitationCommissionvending
Telecopier 5121475.0266 Austin. Texas 78704 machines and pay telephones
714 Jackson, Suite 700
Dear Mr. Arrell:
Dallas, TX. 75292-4506
2141742.8944 You have asked whether the Board of the Texas Rehabilitation
Commission, acting as the board of trustees of au "Employee Fund"
establishedfor the benefit of commissionemployees,may direct that
4824 Alberta Ave., Suite 160
El Paso. TX. 79905-2793
income from vending machines and pay telephonesbe used to buy flowers
9151533.3484 either for hospitalizedemployeesor for the funeralsof employeesand
their family mmhrs, or be used for other purposes benefiting
commission employc!esgenerally. You also ask whether these monies
1001 Texas, Suite 700 must be deposited in the state treasury pursuant to the State Funds
Houston, TX. 77002.3111
Reform Act of 1981, now chapter4 of the TreasuryAct, article4393-1,
713&x%5886
V.T.C.S. -See Acts 1985, 69th Leg., ch. 240, at 2078, 2103.
806 Broadway, Suite 312 In order to answer your questions,it is unnecessaryto discuss
Lubbock, TX. 79401.3479 at length by what:authority vending machines, pay telephones, and
8061747.5238
other coin-operateddevices may be installedin buildings occupiedby
state agencies,because the commissionstherefrommay not be placed in
4309 N. Tenth, Suite B an "Employee Fund" such as you describe in any event; they must be
?&Allen, TX. 7awi-1885 depositedin the state treasuryunless they are paid to a vocationally
512M2-4547 handicappedvendor/operator.
200 Main Plaza, Suite 400 If a "vending facility,"as defined by section 94.001(2),of the
San Antonio, TX. 782052797 Human Resources Code, has been established in a state-controlled
51212254191 building by either the Commissionfor the Blind or the Rehabilitation
Commissionpursuant to sections94.002, 94.003 and 94.007 [see, e.&,
An Equal OpportunityI
V.T.C.S. art. 8801 (coin-operatedservice, music, skill and pleasure
Affirmative Action EmPlOw machines)],the voszationally handicappedperson operatingthe facility
is entitled to %e commissions from competing vending machines
installedin the bu:tlding; but if the Commissionfor the Blind and the
RehabilitationComn:Lssion have decided not to locate such a "vending
facility," in a 'wilding, the agency issued a general permit to
arrange for vending facilitiesis to determinethe "assignmentof the
commissionsfrom lending machines installed in the building." Hum.
Res. Code §94.OlO(c).
p. 1790
Mr. Vernon M. Arrell - Page 2 (34-391)
Even if the Rehabilii:ation Commission could be considered an
agency "granted a general permit" to arrange for vending facilities
and determine the assignment of commissions from vending machines
installedin its buildingpursuant to section 94.010 [a questionwe do
not address],we do not believe it could validly "assign" them to a
fund operated for the private benefit of RehabilitationC=ission
employees. While machine ccmrmissions may be assigned to handicapped
vendors as part of the considerationfor their agreement to operate
vending facilitieson the premises, money paid to a state agency by a
vending company or other firm as considerationfor the placement of
its machines on state property is money belonging to the state. It
may not be used for private purposes. Texas Const. art. III, $51. In
answer to your first question, we do not believe the use of public
funds to purchase flowers ~1s:expressionsof condolencecould normally
be considereda use for public purposes. Cf. AttorneyGeneral Opinion
MW-36 (1979) (county prohib,ited from expending public funds for the
purchase and mailing of Chri~stmascards).
Your second question involves chapter 4 of article 4393-1,
V.T.C.S.,the TreasuryAct, which embodiesthe State Funds Reform Act.
It requires that "fees, fines, penalties, taxes, charges, gifts,
grants, donations, and other funds collected or received by a state
agency under law" shall be ;iepositedin the treasury,and creditedto
the general revenue fund "unless the money is expresslyrequiredto be
deposited in another fund, trust fund or special account not in the
General Revenue Fund." 1r.T.C.S.art. 4393-1, 14.004. (Emphasis
added).
No law requires that the money collectedby the Rehabilitation
Commission as commissions from vending.machines installed in its
building be deposited in another fund, trust fund, or special fund,
and it must be deposited in the general revenue fund of the state
unless it is paid to a handicappedoperatorpursuant to chapter 94 of
the Human ResourcesCode, or falls within one of the statutoryexemp-
tions set out in section 4.003. You suggest the commissions from
vending machines located ix the building occupied by the Rehabilita-
tion Cosusissionmight be exemptedas "trust funds."
Subsection (b)(2) of section 4.003 of article 4393-l specifies
that the chapter does not c:pplyto "funds held in trust or escrow for
the benefit of a person c'r entity other than a state agency." We
think this provision would apply to the commissions collected from
vending machines located i.nthe building housing the Rehabilitation
Commission if they were being collected for the account of a
handicappedvendor/operator,but not when they are collectedfor the
benefit of a RehabilitationCommissionemployees fund. Cf. Attorney
General Opinion MW-590 (1982) (physicians' fees at certain state
hospitals not exempt from deposit in state treasury). Commissions
collected for the benefit of handicappedvendors are earmarkedfunds
p. 1791
Mr. Vernon M. Arrell - Page:3 (JM-391)
to which the vendors are already entitled as considerationfor their
services,and are not collected for the benefit of the state agency.
In other cases, machine comaissionswill be collectedfor the benefit
of a state agency, which controls their disposition. Hum. Res. Code
594.010. But see Hum. Res. Code 194.015(b).
Our attentionhas bee3 drawn to Attorney General OpinionsMW-363
(1981) and E-610 (1975), which involved a fund for the Windham
Independent School District, a nongeographical school district
operatedby the Texas Departmentof Correctionsfor the benefit of its
inmates, and similar Educ;itional and RecreationalFunds. The funds
consisted of receipts frcm.the operation of commissaries,prison-
sponsored recreational shows and entertainment,and all gifts and
other income for inmate welfare. Attorney General Opinion H-610
concludedthat the funds f.eldwere trust funds, and Attorney General
Opinion MW-363 concluded zhat they were "held in trust" within the
meaning of the State Funds Reform Act.
It is unnecessaryhers to review or affirm all that was said in
those opinions. It is sufficientto note that expendituresof money
to advance the welfare of :.nmates
by a state agency chargedwith their
care is not an expenditure for private purposes; such expenditures
serve a proper public purpose. Attorney General Opinions H-610 and
MW-363 do not hold that public funds may be divertedto a fund for the
private benefit of state ,employees.Cf. Hum. Res. Code 594.015(b);
Attorney General Opinions N-454 (198r (certain Mental Health and
Mental Retardation funds ncltsubject to deposit in state treasury);
JM-42 (1983) (independent school districts may deposit "activity
funds" in credit union).
In sum, we are of the opinion that the income from neither
vending machines,pay telephones,nor other coin-operateddevices,may
be directedby the board of trustees of the RehabilitationCommission
to be deposited in an "Employee Fund" to be used for the private
benefit of RehabilitationCommission employees. Like income from
vending machines, income from pay telephonesand other coin-operated
devices placed on public property is public money. That the State
Purchasingand General ServicesCommission,rather than the Commission
for the Blind, may be responsiblefor authorizingthe placementof pay
telephonesand other devices does not alter the public character of
the income realized, *0* the constitutional restrictions on its
disposition.
Unless control has been specificallydelegated to a different
agency by law, or unless the State Purchasing and General Services
Cosraissionhas delegated the authorityto an occupying state agency,
the State Purchasing and N:eneralServices Commissionhas charge and
control of all public buildings, grounds, and property of the state.
It is responsible for inc.omederived from the private use of such
p. 1792
.
Mr. Vernon M. Arrell - Pags:4 (n-l-391)
property that it may achorize. V.T.C.S. art. 601b, 594.01(a),
4.01(c),4.15(a),4.15(b). Revenues it receives from leasing space to
private tenants in state-cwnedbuildings "to serve the needs of the
employeesand visitors in the buildings"are requiredby statute to be
deposited to the credit of'the general revenue fund and may be used
only for "buildingand pror'erty servicesperformedby the Commission."
V.T.C.S. art. 601h, 14.15(i). In our opinion the term "lease" in this
statute was used in a broad sense that includes "licenses"and other
Hancock V. Bradshaw, 350 S.W.2d 955 (Tex. Civ.
lesser rights. -See --
APP. - Amarillo 1961, no writ) (coin-operatedmachines). See also
Tips v. United States, 70 :?..2d
525 (5th Cir. 1934) (federal"lease");
Kibbin v. McPaddin, 259 Sik'.232 (Tex. Civ. App. - Beaumont 1924, writ
ref'd) (nontechnicaluse of term). Cf. Doncliff Realty Corp. v.
Miller, 225 A.2d 52 (R.I. 1964) (statute)
Thus, income from vending machines and pay telephoneslocated in
the building occupied by the RehabilitationCommission-- because it
is not expressly required by general law to be deposited in another
fund, trust fund or special fund - must be deposited in the general
revenue fund of the state pursuant to the State Funds Reform Act.
V.T.C.S. art. 4393-l.
We have not overlooked sections 36 and 37 of article V of the
General AppropriationsAct, which reads:
Sec. 36. VRNIYINGMACHINES ADTRORIZRD. Except
in those areas which are now served by vendors
operating under supervisionof the Blind Commls-
SiOU, vending machines may be placed on state-
owned or leased property or in state-owned or
leased buildings only with the approval of the
governingboards or commissionsand such approval
shall be recordei in the minutes of the body. A
copy of the contractshall be filed with the State
Purchasingand Q,n.eral ServicesCommissionshowing
the location within the agency and the terms of
the contract. Pxoceeds,net revenues,rentals or
commissions received shall be accounted for as
state revenue aad the amount so collected is
hereby appropriated to the institution, board,
commission or agency for use as directed by the
board or commiss:ton authorizingthe installation.
The amount of sutb proceeds,net revenues,rentals
or commissionsar.ddisposalof such funds shall be
included in the .nmnualreport of the state agency
as required elsewhere in this Act. Vending
machines located ,inareas or buildings now being
serviced by vend,xcsunder the supervisionof the
Blind Commission must be operated under a joint
p. 1793
Mr. Vernon M. Arrell - Page 5 (JM-391)
I
contract with the machine owners and the vendors
operating under the supervision of the Blind
Commission.
Sec. 37. PAY STATION TELEPHONES AUTRORIZD.
Pay station telephones may be located in the
capitol area only with the approval of the State
Purchasingand Ggr.eralServicesCommissionand the
net proceeds o:I such installations shall be
collectedand dellositedto GeneralRevenue Fund by
the State Purchasingand General Services Commis-
sion. In other areas pay telephones may be
located in state-(ownedor leased buildings or on
state-owned land only with the approval of the
governingboard or commissionand the net proceeds
shall be collectsedand accounted for as state
revsnue and the amount so collected is hereby
appropriatedfor use by the agency as determined
by the governingboard or commission. The amount
of net proceeds and disposal of such funds shall
be included in the annual report of the state
agency as requiredelsewherein this Act.
General AppropriationsAct!.Acts 1985, 69th Leg., art. V, 5536, 37. at
7782-83.
Riders to general appropriationsacts cannot repeal, modify,
amand or conflictwith existing general law because such matters are
foreign to the subject of "appropriations." Tex. Const. art. III,
935; Moore v. Sheppard,19:!S.W.2d 559 (Tex. 1946). Riders that could
be interpretedas intendirg to do so will be construed,instead, to
harmonize with existing law, if possible. See Attorney General
Opinion JM-343 (1985). ,iuthorityfor determining whether vending
machines or other coin-,operateddevices will be installed on
state-controlledproperty is vested by existing general law in the
Commissionfor the Blind aud the State Purchasingand General Services
Commission,primarily. Geaoral law also "earmarks"machine income in
some instances,&, directs its use for particularpurposes.
Inasmuch as the AppropriationsAct provisionscannot alter that
authority or appropriate the income for different purposes, we
construethe two provisionsto mean, when they refer to "the board or
commission authorizing the installation,"either the Commission for
the Blind [or the Rehabilitation Commission pursuant to section
94.003(b) of the Ruman Rr:sourcesCode] or the State Purchasing and
General ServicesCommission[or the agency to which charge and control
of the property may have hen given by statute or delegatedpursuant
to article 601b, §4.01(c), V.T.C.S.]. Cf. Rum. Res. Code 094.004.
Such a constructiondoes uo violence to the language employedby the
p. 1794
Mr. Vernon M. Arrell - Page 6 (34-391)
legislaturein the AppropriationsAct riders and avoids the need to
pronounce the passages violative of the constitution. See Jessen
Associates,Inc. v. Bullock,,
531 S.W.2d 593 (Tex. 1975). -
SUMMARY
Income from vouding machines dispensingcertain
products and services (not operated by handicapped
vendors) and pay telephoneslocated in the building
occupied by the Texas Rehabilitation Connission
must be depositedIn the state treasuryand may not
be expended for the private benefit of Texas
RehabilitationCommisslan employees.
Jabs
Very truly yours,
.
JIM MATTOX
Attorney General of Texas
JACKRIGHTOWRR
First AssistantAttorney General
MARY KRLLER
ExecutiveAssistantAttorney General
ROBERT GRAY
SpecialAssistantAttorney General
RICK GILPIN
Chairman,Opinion Committee
Preparedby Bruce Youngblood
AssistantAttorneyGeneral
p. 1795