Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
JIM MAlTOX thy 14. 1984
Attorney General
Supreme Court BulldIng Eoaorable William D. Smith Opinion NO-J&158
P. 0. Box 12548
Austin, TX. 78711.2543
Butchineon County Attorney
51214752501 P. 0. Box 985 Be: Support of the Panhandle
Telsx 910/574-1357 Borgcr. Texas 79007 Alcoholic Recovery Center by
TalecopIer 512l475.0288 counties, and related questions
Eonorable Bill Baumann
714 Jackson. Suite 700 Potter County Attorney
Dallas. TX. 752024505 303 Courthouse
2W742-5944 Amarillo. Texas 79101
Centlaman:
4824 Alberta Ave.. E+lte 150
El Paso. TX. 79905-2783
915l53334S4 This opinion vi11 address your inquiries concerning the
relationship between certain counties and the Panhandle Alcoholic
Recovery Center [hereinafter PARC]. Because they deal with similar
1 Texas. Suite 7W subject mtter, we have consolidated your’questions in this opinion.
-,mton, TX. 77’002-3111
Bo:h-;i,, you ask whether the cmissioners court of a county may
713l2235888
fines collected In driving while Intoxicated (DWI) and
public Inebriation cases for county-sponsored substance abuse
SOSBroadway. Suite 312’ treatmat. Mr. Ba-n asks whether a conrmisaioners court may
Lubbock, TX. 79401-3479 authorize county and district court judges to increase by a specific
5w747.5238
amount the fines assessed in their courts for substance-abuse related
offenses and then direct these amounts for the support of the PARC.
4309 N. Tenlh. Suite B Hr. Smith asks whether the payment of monies out of public funds by a
McAlten, TX. 75501.1685 canrmissioners court to the PARC violates article III, section 52. of
512lea2.4547 the Texas Constitution.
200 Main Plaza. suite 400 It is vail established that the coanissioners court of a county
San Antonlo. TX. 752052797 may exercise only those powers conferred upon that body by the
51212254191 constitution and laws of this state. Tex. Const. art. V. #18. The
ctissloners court is not empowered to apportion fine revenues prior
to their collection. Instead. the county treasurer is vested with the
An Equal Opportunltyl
Afflrmatlve Actlon Employer duty of disposing of fines collected by a county.
Article 1628. V.T.C.S.. requires all funds received by the county
treasurer to be classified in one of three categories, including
[a]11 money received under any provisions of the
road and bridge law . . . and all fines and
forfeitures.
This office has read this provision in the past to require fines
collected by s county to be placed in the road and bridge fund. -See
p. 697
Honorable William D. Smith
Honorable Bill Baumann
Page 2 (JM-158)
Attorney General Opinions O-5681 (1943) (misdemeanor fines. except
those collected under special statutes); O-3092 (1941) (fines in
felony convictions). This office has also concluded that fines
collected by a county for DWI infractions are to be deposited in the
county road and bridge fund. Attorney General Opinion O-4269 (1941).
Commissioners court discretion over the collection and allocation
of fine revenues was further curtailed with the enactment of the
County Road and Bridge Act, article 6702-l. V.T.C.S. Acts 1983. 68th
Leg., ch. 288 at 1431. Section 4.201 of the act requires the
following disposition of certain fines:
Fines collected for violations of any highway law
that was previously set forth in Chapter 1. Title
13. Vernon's Texas Penal Code, 1925. shall be used
by the municipality or the counties in which the
fines are assessed and to which the fines are
payable in the construction and maintenance of
roads, bridges, and culverts in the municipality
or county, for the enforcement of the traffic laws
regulating the use of the public htghvays by motor
vehicles and motorcycles, and to help defray the
expense of county traffic officers.
DWI is among those offenses alluded to above. Penal Code art. 802
(1925) (repealed -- nom found in V.T.C.S. art. 67011-l). Furthermore,
section 144 of article 6701d. V.T.C.S.. also requires that fines
collected thereunder be used only "in the construction and maintenance
of roads . . . ."
Article 6702-l also restates the authority of the commissioners
court to oversee the road and bridge fund:
The commissioners court shall see that the road
and bridge fund is judiciously and equitably
expended on the roads and bridges of its county.
Sec. 3.101(c). It is clear, then, that rather thandeciding to expand
the authority of the cammissioners court over the disposition of DWI
and related fines, the legislature has sought to restrict the court.
Consequently, any attempt by a commissioners court to earmark fines
collected by a county would constitute an impermissible expansion of
the powers of the cotissboners court , contrary to both constitutional
end statutory msndate. See Tex. Const. art. V, 618; V.T.C.S. art.
6702-l; Canales v:LaughlK214 S.W.2d 451, 453 (Tex. 1948).
This conclusion also addresses Mr. Baumann's inquiry. Mr.
Baumann asks whether a cosmissloners court may sanction an increase in
fines assessed against substance abusers. The power to prescribe
fines is a matter held generally within the discretion of the
legislature end may be overridden only in extraordinary cases.
p. 698
Honorable William D. Smith
Honorable Bill Baumann
Page 3 (JM-158)
Pennington v. Singleton. 606 S.W.2d 682, 690 (Tex. 1980). In our
oolnion. commissioners court authoriaation of such an increase would
disturb-both the!discretlon of the legislature to prescribe fines and
the euthority ofi.tha courts to set fines within legislative limits.
Accordingly, a commissioners court may not authorize district and
county court judges to increase fines assessed in substance abuse
canes.
The brief prepared by Mr. Baumann’s office does, however, provide
insight into the lawful methods by which a commissioners court may
fund the PARC. In the brief, Mr. Baumann discusses the authority of a
county to contract with a private entity for the provision of
necessary health services under articles 2351 and 4418, V.T.C.S. Mr.
Smith, meanwhile, asks whether articles 4418f (repealed -- now found
in article 4414b. section 1.07) and 4478 permit the commissioners
court of Eutchlnson County to contract with the PARC even though the
center is located in another county.
The authority of a county to enter into contracts was explained
in Galveston, 8. ~& S.A. Railway Co. v. Uvalde County, 167 S.W.2d 305,
307 (Tex. Civ. App. - San Antonio 1942. vrit ref’d v.0.m.):
A county may contract only in the manner and for
the.purposes provided by statute, and is not bound
by a contract beyond the scope of its power6 or
foreign to its purposes, or which is outside the
authority of the officers making It.
Prior opinions of this office demonstrate that a county may contract
vlth private, nonprofit entities and private corporations to perform
services the county is Itself authorized to provide.. See Attorney
General Opinions JM-103 (1983) (county may contract for operation of
senior citizen recreation and health center); JM-65 (1983) (county may
contract with privately owned and operated hospital); H-1123 (1978)
(county may contract with private hospital for obstetrical care of
charity patients). It is equally true, however, that a county may not
contribute public funds to such entities. Tex. Const. art. III, 152;
art. XI, 13,. See Attorney General Opinions MW-329 (1981) (county may
not make contributions to nonprofit corporation for training of
handicapped persons); H-1189 (1978) (county may not donate funds to
private day care center); E-520 (1975) (county may not contribute
public funds for construction of privately owned and operated
livestock show barn). The payment of public funds to private and/or
nonprofit entities is lawful when either the expenditure serves a true
public purpose, accompanied by sufficient controls, or the county
receives adequate consideration for the expenditure. -See Attorney
General Opinions m-103, JM-65 (1983).
Accordingly, we believe that any contract authorizing an
expenditure to the PARC must be preceded by e specific factual finding
by the commissioners court that alcoholism constitutes a public health
p. 699
Honorable William D. Smith
Ronorable Bill Bauwann
Page 4 (JM-158) I
problem in the county and that the PARC provides what way be
reasonably characterieed as haalth services. See generally Attorney
General Oplniou JH-5 (1983) (alcoholisw treatment requires more than
mere detoxification). Moreover, the contract should clearly state the
public purpose to be furthered and should by its terms reserve for the
county sufficient control over the performance of the contract to
ensure that the public purpose is carried out for the benefit of the
county and its residents.
To susmsrire, we eonclude that a county conmissloners court may
sot earmrk DWI and related fines for the PARC. Siwilarly. we believe
that the connissioners court way not authorize an incresse In fines
assessed against substance offenders. The paywent of county funds to
the PARC does not violate article III, section 52, of the Texas
Constit"tlon, provided that such peyreats are wade pursuant to a
coutract predicated on the factual finding described above. The only
rewaining issues to be addressed are whether the agency with which the
county contracts must be located within that county and whether such
contracts way be paid from DWI and related fine revenues.
Mr. Smith writes that under former article 4418f. it is unclear
whether county funds may be spent outside the county. Although the
authority of the commissioners court to spend funds for health and
sanitation appears in the statute creating the state Department of
Health and Board of Health, numerous opinions from this office,
previously cited, demonstrate that this power is not limited by the
caption to former article 4418f. By the same token, we see no reason
to limit expenditures for health and sanitation to the county In which
the commissioners court sits, so long as the benefits of such spending
inure to the county and Its residents. Accordingly, we believe that
the cosmissioners court of Rutchinson County is authorized to contract
with the PARC, notwithstanding the fact that the PARC Is located in
another county.
SUMMARY
A commissioners court is not authorized to
earmark DWI and related fines, uor to increase
fines assessed against substance offenders, for
the purpose of funding an alcoholic recovery
center.
, Vefz#&
JIM HATTOX
Attorney General of Texas
p. 700
Honorable William D. Smith
Honorable Bill Baumann
Page 5 (JM-158)
TOM GRRRN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COWITTEE
Rick Gllpin. Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 701