Untitled Texas Attorney General Opinion ( 1986 )

1
‘I
The Attorney General of Texas
February 21, 1986
JIM MATTOX
AttorneyGeneral
Supreme Court Building Honorable Jay T. U&rough opinion No. JM-431
P. 0. BOX 12548 Bee County Attorney
Austin, TX. 78711.2549 Courthouse Re: Whether a county commissioner
5121475-2501 Beeville. Texas 78102 may use his office to collect inter-
Telex 9101974-1367
Telecopier 5121475-0268
national aid for earthquake victims
Dear Mr. Kimbrougb:
714 Jackson, Sulle 700
Dallas, TX. 752024506
You provide us with the following facts: a county commissioner
2141742-8944
has requested that residents of the local community contribute money
or canned goods to the Mexico City earthquake victims. Checks are
4824 AlbeRa Ave., Suite 160 be made payable to the American Red Cross. The commissioner
El Paso, TX. 799052793 collecting the aicl at his courthouse office, using personnel paid
9151533-3484 the county. You ask the following question:
lOtI1 Texas, Suite 7W Is it legal for a county commissioner to use
HOUS,O~, TX. 77002-3111 his cowrcy-funded, county courthouse office to
713/2236S86 collect i,nternationalaid for earthquake victims
or any ot:herInternational disaster?
806 Broadway. Suite 312
Lubbock, TX. 79401-3479
We agree with your conclusion that a county commissioner may not
806/747-5239 use either county funds or county personnel for such a project; we
not. however, conc:lude that incidental use of space in the county
courthouse violates relevant Texas constitutional provisions.
4309 N. Tenth. Suite q
McAllen. TX. 78501.1885
5121682.4547 Article III, section 52 of the Texas Constitution provides
following in pertinent part:
200 Main Plaza. Suite 400
(a) Swept as otherwise provided by this section
San Antonio. TX. 782052797
[exceptix~s which are not here apposite], the
512/2254191
Legislatxce shall have no power to authorize %
county, City, town or other political corporation
An Equal OppOrtUIlitYl or subdiv,lsionof the State to lend its credit or
Affirmative Action Employer to grant .publicmoney or thing of value in aid of,
or to a&d- individual, association or corporation
whatsoevmy, or to become a stockholder in such
corporat:ttm, association or company. (Emphasis
added).
Article XVI, section 6 provides in pertinent part:
p. 1975
(JM-431) r’
Honorable Jay T. Kimbrough - Page 2
No appropriation for private or individual
purposes shall bl! made, unless authorized by this
constitution.
Article VIII, section 3 specifies that "[tlaxes shall be levied and
collected by general laws md for public purposes only."
The rule was set for% io State V. City of Austin, 331 S.W.2d
737, 742 (Tex. 1960):
The purpose of th:ls section [article III, section
511 and of Article XVT, section 6, of the
Constitution is to prevent the application of
public funds to private purposes; in other words,
to prevent the gzatuitous grant of such funds to
any iudividual 01:corporation whatsoever.
We emphasize, however, that:
an expenditure fwc the direct accomplishment of a
legitimate publjc and municipal purpose is not
rendered unlawful by the fact that a privately
owned business mq be benefited thereby.
Earrington v. Cokinos, 338 S.W.2d 133, 140 (Tex. 1960).
Relying on the above-cited constitutional provisions, numerous
Attorney General Opinions have disapproved attempts to divert public
funds and other public resources to private persons. d-S,PU See
Attorney General Opinions III-30 (1983) (state funds may not be used to
provide private indlvidua:.swith telecommunications devices for the
deaf); MW-532 (1982) (state agency may not offer grant cf state funds
to private land owners ft#r the purpose of reforesting idle lands);
MW-89 (1979) (school district policy permitting teachers to work for
professional associations while receiving salaries from the school
district is unconstitutional); MW-36 (1979) (county may not rpend
public funds to purchase and mail Christmas cards); MW-22 (1979)
(state funds may not be g,rantedto private individual6 to pay their
utility costs).
This office has repeatedly held that public monies may not be
contributed to private charitable institutions. Attorney Genarel
Opinions M-661 (1970) (county may not offer grant of public funds to
private religious charitable institutions); O-7197 (1946) (county may
not donate county funds t.o the building within that county of a
privately-chartered cooperative hospital); C-5563 (1943) (county may
not contribute to private diaritable institutions, including homes for
the elderly and homes far impoverished children); O-1001 (1939)
(county my not contribute public funds to the Tuberculosis
p. 1976
Ronotable Jay T. Kimbrough .-Page 3 (JM-431)
Association, to the Amer:.can National Red Cross nor to any other
private charitable organization). Accordingly, wa conclude in this
instance that the county 'may not expend public monies or utilize
county-paid personnel for %e project about which you inquire.
It is suggested that the program which you propose is authorized
by article 6889-7, V.T.C.S., the Texas Disaster Act of 1975. Among
the declared purposes of the act is to
authorize and provide for coordination of activi-
ties relating t> disaster prevention, prepared-
ness, response, and recovery by agencies and
officers of thir, state, and similar state-local,
interstate, federal-state, and foreign activities
in which the staEe and its political subdivisions
way participate. (Emphasis added).
V.T.C.S. srt. 6889-7, §2(6:~.The act permits the governor by executive
order or proclamation to declare a state of emergency. Id. $5. The
act also permits the presiding officer of a governingbody of a
political subdivision to declare a local state of emergency. Id. 510.
See generally Attorney General Opinions MW-140 (1980); WW-12487962).
We need not here determine whether the state or a political sub-
division way provide ass:tstance to citizens of a foreign country
pursuant to this act becat.seno such executive order or proclamation
has been issued. While tt.eabove underscored passage from section 2
could be construed to indi.catelegislative intent that the state and
local political subdivisions be permitted to participate in such a
project, we have not found nor have you directed us to any statutory
or constitutional provisicn specifically authorizing such participa-
tion. The act itself does not confer such authority. In any event,
since the county has not taken the required steps to implement the
act, the act provides no .mthority for the county to participate in
the program about which you inquire.
We add that, while on the basis of the information which you have
submitted to us, it is clear that the county may not expend public
monies or utilize county-p,aid personnel to aid the victims of the
earthquake in Mexico City, the incidental use of space in the county
courthouse for such a project does not offend relevant Texas constitu-
tional provisions. In Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ.
APP. - Waco 1938, writ zm?d), the court held that articles 2351(7)
and 1603, V.T.C.S., which repose in the commissioners court the duty
to provide and keep in ,eepair the county courthouse and jail,
conferred the implied statutory power to rent space in its courthouse
for a cigar and cold drink stand. The court declared:
It does not appear that the operation of the stand
in the respect ,contemplated will in any wise
p. 1977
Honorable Jay T. Kimbrough - Page 4 (JM-431)
interfere with tlur use of the courthouse for the
purposes for which it is intended. If the comis-
sinners' court dmms the letting of apace in the
courthouse to an individual to carry on such
business the most practical method for securing
such convenience+ and if, by so doing, the court
does not interfere with the use of the courthouse
as a whole for the purposes for which it is
intended, and if it appears that the court is
exercising a reasonable discretion in this
respect, its deci,sionsought not to be set aside.
118 S.W.2d at 624.
If the commissioners court, without violating the constitution,
may lease space in the co?znty courthouse to a commercial enterprise
which provides a convenien,ce to those transacting business in the
courthouse, WC believe the commissioners court is not prohibited from
incidentally permitting the use of courthouse space as s collection
point for citizens in the c,ountyto donate items for relief to victims
of natural disasters. ---
See also Terrsut County v. Rattikin Title Co.,
199 S.W.2d 269 (Tex. Civ. f.pp.- Fort Worth 1947, no writ) (county has
authority to equip space wtthin courthouse allotted to county clerk's
office to enable citizens t,aaccomplish privilege of examining records
in clerk's office even if abstract company used such space at no
expense in order to carry on land title business); Attorney General
Opinions MW-200 (1980) (commissioners court may reasonably allocate
space in county courthouse to representatives of the media, title
companies, end employee credit unions if it determines that the
services thereby provided 3srve the convenience of the public); H-920
(1977) (space may be allccated in atate capitol building for news
organizations); R-184 (197311(space may be allocated in state capital
building for news organizai:ions).
Accordingly, we conclude that a county commissioner may not
expend county funds or ut:t!!izecounty-paid personnel to collect aid
for foreign victims of a natural disaster; however, incidental use of
space in the county courthouse for such aid collection efforts does
not violate relevant Texas constitutional provisions. Furthermore,
county personnel may voluuteer their time to assist in relevant
collection efforts.
SUMMARY
A county comnissiouer may not expend county
funds or utilize 'county-paidpersonnel to collect
aid for foreign victims of a natural disaster;
howaver, incidental use of space in the county
p. 1978
Honorable Jay T. Kin&rough '-Page 5 (JM-431)
courthouse for such aid collection efforts does
not violate relevant Texas constitutional pro-
visions.
JIM MATTOX
Attorney General of Texas
JACK HIGHTONER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attormy General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Comaitteo
Prepared by Jim Moellinger
Assistant Attorney General
p. 1979