Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 27,2004
The Honorable Matt Bingham Opinion No. GA-01 58
Smith County Interim Criminal District Attorney
100 North Broadway, 4th Floor Re: Whether a county may place on county-
Tyler, Texas 75702 owned vehicles a decal, trademark, or logo
advertising a private business in exchange for
money from the business (RQ-0095-GA)
Dear Mr. Bingham:
On behalf of Smith County (the “County”), your predecessor asked whether a county may
place on a county-owned vehicle a decal, trademark, or logo advertising a private business in
exchange for money from the business.’ He explained that the County Sheriff has proposed a policy
under which the County would accept money from private businesses to purchase law enforcement
vehicles in exchange for placing advertisements for those businesses on certain external areas of the
vehicles. See Request Letter, supra note 1, at 1.
Under [the] program, once a local business makes a donation for the
purchase of a “Police Package Vehicle” for the use of the Sheriffs
Office, [the] County would purchase a vehicle according to the
normal bidding process for county purchases. The County would
then imprint the business’ decal, logo, or trademark on the vehicle for
a period not less than three years. At the end of the three year period,
[the] County would be free to remove the advertisements with no
further obligations to the donor. However, should the vehicle be
wrecked or otherwise taken out of service prior to the expiration of
the three year period, [the] County would be obligated to identically
mark a replacement vehicle for the remainder of the three year period.
Id. According to the request letter, the sheriffs office would have the authority to approve the form
and substance of all advertisements, and the County would adopt a policy limiting the size and
placement of the advertisements. See id. at 2. Advertisements could be placed on only three
locations on the vehicle-one on each rear quarter panel and one on the rear trunk lid-and the size
‘See Letter from Honorable Jack Skeen, Jr., Smith County Criminal District Attorney, to Honorable Greg
Abbott, Texas Attorney General (Aug. 15,2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Matt Bingham - Page 2 (GA-0158)
of the ads would be strictly limited. See id. at l-2. No more than one advertisement would be
allowed per location, but there might be an advertisement on each location. See id. at 2. “[Tlhe
advertisements would not be allowed to cover, obliterate, or conceal any law enforcement markings
on the vehicle.” Id. at 2.
At some points, the request letter refers to the money that would be received from a private
business as a donation, see id. at 1, and at other points, the request letter suggests that the money
would be a lease payment, see id. at 3. This office cannot determine the precise nature of the
transaction because of the fact issues involved. See Tex. Att’y Gen. Op. Nos. GA-0078 (2003)
at 2 (stating that this office does not construe particular contracts), JC-0443 (2001) at 1 (stating that
whether a particular donation is in fact a refund is a fact question that an opinion cannot resolve);
see also Bullock v. Citizens Nat ‘I Bank, 663 S.W.2d 923, 924 (Tex. App.-Austin 1984, no writ)
(stating that a court must examine all the facts to ascertain whether a particular transaction is a sale
or a lease). Nevertheless, “a donation is nothing more nor less than a gratuity-that which is
bestowed without receipt or expectation of anything in return”-it is not something “yielded up
pursuant to contract and in return for a valuable consideration.” Barrington v. Cokinos, 339 S.W.2d
330,334 (Tex. Civ. App.-Beaumont), aff’d, 338 S.W.2d 133, 141 (Tex. 1960).
Section 72 1.004 of the Transportation Code requires a county to print the county’s name on
its motor vehicles:
(a) The office having control of a motor vehicle or piece of
heavy equipment owned by a . . . county shall have printed on each
side of the vehicle or equipment the name of the . . . county, followed
by the title of the department or office having custody of the vehicle
or equipment.
(b) The inscription must be in a color sufficiently different
from the body of the vehicle or equipment so that the lettering is
plainly legible.
(c) The title of the department or office must be in letters
plainly legible at a distance of not less than 100 feet.
TEX. TRANSP. CODE ANN. 8 721.004 (Vernon 1999). A county commissioners court may exempt
from these requirements “an automobile when used to perform an official duty by a . . . sheriffs
office,” id. 8 72 1.005(b)(l)(B) (V emon Supp. 2004), an exemption that was apparently intended not
to permit a sheriff to print more information on the vehicles, but to permit a sheriffs department to
use unmarked vehicles. See Act of May 11, 1959, 56th Leg., RX, ch. 235, 9 1, 1959 Tex. Gen.
Laws 53 1,532 (“Provided . . . that the provisions of this Section shall not apply to automobiles used
by.. . sheriffs’ departments, which shall be unmarked at the discretion of the sheriff. . . .“).
Attorney General Letter Opinion 97- 112 construed section 72 1.004 to provide an exclusive
list of the information that a county could print on its vehicles. See Tex. Att’y Gen. LO-97-l 12, at
The Honorable Matt Bingham - Page 3 (GA-0158)
l-2. The requestor asked whether a county vehicle could be inscribed with an elected official’s
name. See id. at 1. Reasoning that “effect and meaning [must] be given to [a statute’s] every
sentence, clause, phrase, and word” and that section 721.004 “does not specifically permit the
inscription of an elected county official’s name on a county-owned vehicle,” the opinion concluded
that “there is no authority to inscribe a county official[‘]s name on the vehicle.” Id. at l-2. The
opinion thereby construed section 72 1.004(a) to provide that a county must print “on each side of’
a county-owned vehicle only “the name of the . . . county, followed by the title of the department or
office having custody of the vehicle.” Id.; see TEX. TRANSP. CODE ANN. 8 721.004(a) (Vernon
1999).
Your predecessor suggested that Letter Opinion 97-l 12 incorrectly construes section
721.004. See Request Letter, supra note 1, at 2. He proposed, instead, that section 72 1.004 sets
“minimum standards for identification of county vehicles” and does not provide an “exhaustive list.”
Id. at 3. Despite the letter opinion’s conclusion, your predecessor stated, “county law enforcement
and emergency vehicles routinely include such items as 911 emergency emblems, crime stoppers
decals, and vehicle numbers on the vehicles.” Id. Moreover, although section 721.002 of the
Transportation Code similarly requires state-owned motor vehicles to “have printed on each side
. . . the word ‘Texas,’ followed by the title of the state agency having custody of the vehicle,” TEX.
TRANSP. CODE ANN. 9 721.002(a) (Vernon 1999), your predecessor stated that the phrase “State
Trooper” is printed on each side and the rear trunk portions of Texas Department of Public Safety
vehicles. See Request Letter, supra note 1, at 3.
In our opinion, Letter Opinion 97-l 12 incorrectly concludes that section 72 1.004 provides
an exclusive list of the items that may be printed on a county-owned vehicle. The section does not,
on its face, indicate that it is exclusive. See TEX. TRANSP.CODE ANN. 8 721.004 (Vernon 1999).
While it is true that a court must give “effect and meaning . . . to [a statute’s] every sentence, clause,
phrase, and word,” it is also true that a court must presume that “every word excluded from a statute”
was “excluded for a purpose.” Cameron v. Terre11 & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.
198 1). Consequently, a court should insert additional words into a statute “[olnly when it is
necessary to give effect to the clear legislative intent.” Office of the Attorney Gen. v. Lee, 92 S.W.3d
526,529 (Tex. 2002) (quoting Cameron, 618 S.W.2d at 540). We believe the legislature intended
section 721.004 to ensure that a county-owned vehicle generally is identifiable as such, but the
legislature did not intend to exclusively list what a county could print on its car. The act by which
the legislature originally adopted the substance of section 721.004 indicates that the legislature was
concerned about insufficiently marked county-owned vehicles that members of the public could not
identify as county-owned. See Act of May 11, 1959,56th Leg., R.S., ch. 235, 0 2, 1959 Tex. Gen.
Laws 53 1,532 (“The fact that there is no present provision compelling identification of. . . county-
owned vehicles as there is for state-owned vehicles creates an emergency. . . .“). The substance of
section 72 1.002, which provides for inscriptions on state-owned vehicles, was similarly adopted so
that members of the public could identify the cars: “The fact that motor vehicles owned by the State
of Texas are being driven upon the streets of towns and cities and upon public highways with
inscriptions so nearly the color of the body of the car that such inscriptions are visible for a very
short distance creates an emergency. . . .” See Act approved May 26,193 1,42d Leg., R.S., ch. 2 19,
8 2,193l Tex. Gen. Laws 373,373. Because inserting the word “only” is not necessary to effectuate
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a clear legislative intent, Attorney General Letter Opinion 97-l 12 incorrectly construes the statute,
and we overrule this construction. We need not revisit here, however, the opinion’s ultimate
conclusion: “An elected official may not inscribe his or her name on a county-owned motor
vehicle.” Tex. Att’y Gen. LO-97-l 12, at 2 (Summary).
Accordingly, section 72 1.004 lists the minimum types of identifying marks that must be
printed on a county-owned vehicle that is not exempt under section 72 1.005, but it does not provide
an exclusive list. Other marks may be placed on the vehicles, but if the other marks obscure the
identifying marks or make identification difficult for the public, section 721.004’s intent has been
violated. Thus, nonrequired inscriptions may not obscure the identifying marks required by section
72 1.004 or make the vehicle’s county-owned status difficult to ascertain.
Moreover, the commissioners court exercises ultimate authority over the content, design, or
placement of any particular decal. The sheriffs vehicles belong to the county, which acts through
its commissioners court. See Jackv. State, 694 S.W.2d 391,397 (Tex. App.-San Antonio 1985, writ
ref d n.r.e.); Tex. Att’y Gen. Op. No. JC-02 14 (2000) at 5.
Nevertheless, we conclude that a county may not place on a county-owned vehicle an
advertisement for a private business. Texas law is well-established on this point: A commissioners
court’s authority is limited to those powers conferred either expressly or by necessary implication
from the constitution and laws of this state. See Guynes v. Galveston County, 861 S.W.2d 86 1,863
(Tex. 1993) (citing Canales v. Laughlin, 214 S.W.2d 45 1,453 (Tex. 1948)); Tex. Att’y Gen. Op.
No. GA-0085 (2003) at 2 (quoting Guynes, 861 S.W.2d at 863); see also TEX. CONST. art. V,
8 18(b); Jack, 694 S.W.2d at 397 (citing Childress County v. State, 92 S.W.2d 1011, 1016 (Tex.
1936); Wilson v. Calhoun County, 489 S.W.2d 393,397 (Tex. Civ. App.-Corpus Christi 1972, writ
ref d. n.r.e.)). A county’s authority to convey its property, by sale, lease, or exchange, is strictly
circumscribed by statute. Chapter 263 of the Local Government Code provides generally for a
county’s sale or lease of property. TEX. LOC. GOV’T CODE ANN. ch. 263 (Vernon 1999 & Supp.
2004). A county has specific general authority to sell or lease its real property (1) at a public auction,
see id. $ 263.001(a) (Vernon 1999); (2) through a sealed-bid procedure, see id. 9 263.007(a), (f)
(Vernon Supp. 2004); or (3) under a contract with a broker, see id. 9 263.008(b). Conveyances of
certain types of real property must occur in accordance with particular statutes, however. For
example, a county’s sale or lease of abandoned seawall or highway property must comply with
section 263.002 of the Local Government Code, and airport land must be leased in compliance with
section 263.05 1. See id. $9 263.002, .05 1 (Vernon 1999); see also TEX. GOV’T CODE ANN.
$3 1477.070(a), .119 (Vernon 2000) (authorizing a county to “sell, deliver, and distribute” certain
water or natural gas to a municipality, political subdivision, or private entity). A county may sell,
exchange, destroy, or donate its salvage or surplus property only in accordance with chapter 263,
subchapter D of the Local Government Code. See TEX. Lot. GOV’T CODE ANN. 9 263.152(a)
(Vernon Supp. 2004). But no statute authorizes a county to lease its personal property. We must
consequently conclude that a county has no authority to place decals advertising private businesses
on county-owned vehicles in exchange for a payment from the business.
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SUMMARY
Section 72 1.004 of the Transportation Code provides a list of
the minimum types of identifying marks that must be printed on a
nonexempt county-owned vehicle. Attorney General Letter Opinion
97- 112’s construction of section 72 1.005 is overruled.
Inscriptions other than those described in section 72 1.004
may be printed on a county-owned vehicle, but they may not obscure
the required identifying marks or make identification of the vehicle
difficult.
A county has no authority to place decals advertising private
businesses on county-owned vehicles in exchange for a payment from
the business.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee