Attorney General Opinion JM-0575

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.eges and 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 elf higher education on these local funds is subject to the Open Records Act: p. 2565 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.d the 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 information, and our answex must necessarily be Records Act applies to general categories of generalized. The Open [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.nd state 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:ion 3(a) of the Open Records Act; whether particular records would he: excepted from public disclosure must be determined on a case-by-car:e basis 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'z 3 (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#,cal funds: 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 & :C University; (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; p. 2567 Honorable Bob Bullock - Pages 4 (~~-575) (12) Texas Eas,:ern University; and (13) each pub:t:ic junior 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,zes of all kinds; (2) charges f')r use of rooms and dormitories; (3) receipts Erom meals, cafes, and cafeterias; (4) fees on deposit refundable to students under certain conditions; (5) receipts E~com school 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 p. 2568 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:tng board 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:ing board 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:r its 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:ion and 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:.aw relevant to that agency. p. 2569 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'!ent without appropriation unless the legislature provides by law that the money be expended only on appropriation. Very/zr , JIM MATTOX Attorney General of Texas p. 2571 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 -_ p. 2572