Untitled Texas Attorney General Opinion ( 2000 )

OFFICL OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
April 20,200O
The Honorable Ken Armbrister Opinion No. JC-0212
Chair, Committee on Criminal Justice
Texas State Senate Re: Whether a home-rule city may expend tax
P.O. Box 12068, lE.12 funds to sponsor children’s travel on out-of-state
Austin, Texas 78711 appearances (RQ-015 1-JC)
Dear Senator Armbrister:
You ask whether a home-rule city, absent express legislative authority, may spend public
funds to join with a local school district in sponsoring travel of resident school children to
Washington D.C. and New York where they represent the city and school district in public
appearances. A home-rule city may adopt any ordinance not inconsistent with the constitution, the
general law, or its city charter. The city does not need express legislative authority to spend public
funds for a particular activity if it has authority under its charter to engage in that activity, but any
expenditure must be for a public purpose and municipal purpose. The city may not donate public
funds to a school district or expend funds other than for a municipal purpose.
The absence of legislation expressly addressing the expenditures you inquire about has raised
concerns in some communities, in particular, the City of Port Arthur, as shown by the letter from the
Port Arthur city attorney that you enclose. The city attorney’s letter provides additional information
about expenditures it has made in connection with the Port Arthur Independent School District (the
“PAISD” or “School District”). Letter from Honorable Mark T. Sokolow, Port Arthur City
Attorney, to Honorable David E. Bemsen, State Senator, District 4 (July ~20,1999) (on tile with
Opinion Committee) [hereinafter “Sokolow Letter”]. Attached to the letter is a resolution of the Port
Arthur City Council, which states that the Lincoln High School Band had been chosen to represent
the State of Texas at a celebration in Washington D.C. and that it would also represent the City of
Port Arthur, and authorizing the city manager to spend $8,000 to assist the band in its travel
expenses. CityofPort Arthur ResolutionNo. 98-16 (Jan. 27,1998). Another attachment shows that
the city assisted the School District with the costs of sending a school performing group to out-of-
state performances on three other occasions from 1997 through 1999. The letter states that “[tlhe
City viewed these programs as City and PAISD sponsored programs wherein the children
represented the City and School District.” Sokolow Letter.
You point out that there is statutory authority for some joint functions of cities and school
districts. Local Government Code section 332.021 allows a municipality and an independent school
district that are located in the same or adjacent counties to cooperate to establish “‘playgrounds,
The Honorable Ken Armbrister - Page 2 (JC-0212)
recreation centers, athletic fields, swimming pools, and other park or recreational facilities located
on property owned or acquired by either political subdivision.” TEX. Lot. GOV’T CODE ANN.
4 332.021 (Vernon 1999). However, no statute addresses jointly funding travel by school children
to the public appearances you inquire about,
Home-rule cities, such as Port Arthur, derive their legislative authority directly from the
Texas Constitution. TEX. CONST. art. XI, 4 5; Lower Colorado River Auth. v. City of San Marcos,
523 S.W.2d 641,643 (Tex. 1975); Forwood v. City of Taylor, 214 S.W.2d 282,286 (Tex. 1948).
They have full powers of self-government and authority to adopt charter provisions and ordinances
not inconsistent with the constitution or general law and they look to legislation for limits on their
power, rather than authorization. Dallas Merchant’s and Concessionaire’s Ass ‘n v. City ofDallas,
852 S.W.2d 489,490 (Tex. 1993); City of Richardson v. Responsible Dog Owners of Texas, 794
S.W.2d 17,18 (Tex. 1990); Forwood, 214 S.W.2d at 286; Tex. Att’y Gen. Op. Nos. JC-0145 (1999)
at 2; JC-0142 (1999) at 8. As a home-rule city, the City of Port Arthur may exercise legislative
authority, but any ordinance or resolution it adopts must be consistent with the constitution and
general law as well as with its city charter. Lower Colorado RiverAuthority, 523 S.W.2d at 643-44;
Tex. Att’y Gen. Op. No. H-936 (1977) at 1. Your question raises an issue as to whether the City of
Port Arthur may, consistently with the Texas Constitution, spend public funds to sponsor school
childrens’ travel to out-of-state appearances.
The constitution places limits on a city’s expenditure of public funds. Article VIII, section
3 of the Texas Constitution provides that “[tlaxes shall be levied and collected by general laws and
for public purposes only.” Article III, section 52 of the constitution provides in part:
(a) Except as otherwise provided by this section, the
Legislature shall have no power to authorize any county, city, town
or other political corporation or subdivision of the State to lend its
credit or to grant public money or thing of value in aid of, or to any
individual, association, or corporation whatsoever .
TEX. CONST. art. III, 5 52; see also id. art. III, 4 5 1 (legislature may not grant or authorize the grant
of public funds “to any individual, association or individuals, municipal or other corporations
whatsoever”). Under this provision, city funds may be spent only to carry out a municipal purpose,
although the fact that another entity also benefits from the expenditure does not invalidate it.
Barrington v. Cohinos, 338 S.W.2d 133 (Tex. 1960); see State ex rel. Grimes County Taxpayers
Ass’n v. Texas Mun. Power Agency, 565 S.W.2d 258 (Tex. Civ. App.-1978, writ dism’d). It is,
however, well established that a city may not donate funds to an independent municipal corporation
such as a school district. See San Antonio Indep. Sch. Dist. v. Board of Trustees of the San Antonio
Elec. & Gas Sys., 204 S.W.2d 22,25 (Tex. Civ. App.-San Antonio 1947, writ ref d n.r.e.); City of
El Paso v. Carroll, 108 S.W.2d 25 1,257 (Tex. Civ. App.-El Paso 1937, writ ref d) (City of El Paso
could not lend or donate public funds to school district, which was a separate municipal corporation);
Tex. Att’y Gen. Op.No. JM-1255 (1990)at4(citymaynotuserevenue bondpowers to assist school
district to acquire a school building); Tex. Att’y Gen. LO-96-063, at 2 (violation of Texas
The Honorable Ken Armbrister - Page 3 (JC-0212)
Constitution article III, sections 51 and 52 for city to donate public funds to school district to build
schools within city boundaries; building schools is not a municipal purpose). The highest court of
Kentucky has held that a city could not appropriate funds to a school district to supplement the
salaries of its teachers. Board ofEduc. of City of Corbin v. City of Corbin, 192 S.W.2d 951
(Ky. 1946). The Kentucky state constitution, like the Texas Constitution, prohibited any city
from appropriating money to any corporation, association or individual. Id. at 952 (citing KY.
CONST.5 79). While education is
a municipal function or purpose; nevertheless, it is a function
exclusively delegated to school districts as arms of the State
government; and, even though the district’s boundary is conterminous
with the boundary of a city, it is, in legal contemplation, as distinct
therefrom as a district whose boundary does not even border thereon.
Two municipalities, for their respective purposes, may govern the
inhabitants of a given territory; but the one may not interfere with the
other in the exercise of specified authority; nor may it under Section
179 [of the Kentucky Constitution] reap a reward at the expense of
the other.
Id.
The City of Port Arthur may not donate its public funds to a school district to assist it in
carrying out school purposes, nor may it appropriate public funds to be used solely for school
purposes. A city may spend its public funds only to carry out amunicipal purpose, although the fact
that there is an incidental benefit to a private person or another entity Tom the expenditure does not
invalidate it. Barrington, 338 S.W.2d 133 (Tex. 1960); see State ex rel. Grimes County Taxpayers
Ass ‘n, 565 S.W.2d at 258. This rule applies to all public timds of a city, whether derived from tax
revenues or other sources. See TEX. CONST.art. III, 4 52.
The city attorney’s letter suggests that the school children represent the city as well as the
school district, and that their representation serves a municipal purpose that justifies the expenditure
ofpublic funds. The decision in Davis v. City of Taylor, 67 S.W.2d 1033 (Tex. 1934), gives some
support to the idea that representing the city in other states serves a public purpose and municipal
purpose. In Davis, taxpayers sought to enjoin the expenditure of city funds for a board of city
development, established by a charter provision to promote the growth, advertisement, development,
improvement and increase of the taxable values of the city, on the ground that the expenditure was
not for a public purpose or a municipal purpose. Id. at 1034-35. The Supreme Court stated that no
exact definition of “public purpose” could be made, quoting as follows from McQuillen on
Municipal Corporations: “What is a public purpose cannot be answered by any precise definition
further than to state that if an object is beneficial to the inhabitants and directly connected with the
local government it will be considered a public purpose.” Id. at 1034 (quoting 6 MCQUILLENON
MUNICIPAL CORPORA~ONS 5 2532, at 292 (2d ed. 1940)). The court held that the city’s expenditure
of funds to advertise its advantages served a public purpose and a municipal purpose, noting that
The Honorable Ken Armbrister - Page 4 (X-0212)
expenditures to send exhibits to state and national expositions had been upheld as made for a public
purpose. Id. at 1035.
We believe that sending representatives of the city to other places to advertise the city’s
advantages might also serve a public purpose and a municipal purpose. Whether this purpose was
served by Port Arthur’s expenditures to send PAISD musical groups to out-of-state performances
is a fact question, which cannot be answered in the opinion process. See Tex. Att’y Gen. Op. No.
JC-0032 (1999) at 4. Moreover, expenditures of public funds for public purposes must be
accompanied by contractual or other controls to insure that the public purpose is carried out. Key
v. Commissioners Court ofMarion County, 727 S.W.Zd 667,669 (Tex. App.-Texarkana, 1987, no
writ). Whether appropriate controls accompanied Port Arthur’s expenditures also involves questions
of fact, which cannot be resolved in an attorney general opinion. Id. Port Arthur must also have
authority under its charter or general law to engage in the activity it wishes to fund. See generally
TEX. Lot. Gov’TCODEANN. $371.001 (Vernon 1999).
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SUMMARY
A home-rule city may adopt any ordinance not inconsistent
with the constitution, general law, or its city charter and does not
need express legislative authority to spend public funds for a
particular activity if its charter authorizes it to engage in the activity.
Any expenditure of city funds must be for a public purpose and
municipal purpose. A city may not donate public funds to a school
district or expend funds other than for a municipal purpose.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee