Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
December 18, 1978
JOHN L. HILL
Attorney General
Honorable Marion E. Williams, Jr. Opinion No. H-12 8 8
Bee County Attorney
Bee County Courthouse Re: Authority of the county to
Beeville, Texas 78102 pay a CETA prime contractor
when it is subsequently dis-
covered that the activities for
which reimbursement were made
were unauthorized.
Dear Mr. Williams:
You describe the facts as follows: Bee County, through the Bee County
Community Action Agency, has a contract for the receipt of federal funds
under the Comprehensive Employment and Training Act (CETA), 29 U.S.C. §§
801-822, with the Coastal Bend Consortium which acts as the prime sponsor.
Bee County used a portion of these funds to pay for the repairs on someone’s
home who, it was later discovered, was not an eligible recipient of CETA
funds. Under the contract with the consortium, any misappropriation of funds
by the county renders the county, rather than the consortium, liable to pay
the amount misappropriated. You ask whether the county has authority to
pay this amount in light of article 3, section 52 of the Texas Constitution.
You also ask if the county auditor or county commissioners can be held
personally liable for the misappropriation of the funds. We note that the
question does not involve any payment to the ineligible individual, but instead
relates to the liability of one governmental body to another.
Article 3, section 52 provides, in pertinent part:
The Legislature shall have no power to authorize any
county. . . to lend its credit or grant public money or
thing of value in aid of, or to any individual,
association or corporation whatsoever. . . .
Payment of a valid claim by a county is not gratuitous and does not
violate article 3, section 52. Harris County v. Dowlearn, 489 S.W.2d 140 (Tex.
Civ. App. - Houston [14th Dist.] 1972, writ ref’d n.r.e.) (compensation of
individual pursuant to Texas Tort Claims Act does not violate article 3,
section 52); s Angelina County v. Kent, 374 S.W.2d 313 (Tex. Civ. App. -
P. 5082
Honorable Marion E. Williams, Jr. - Page 2 (~-12881
Beaumont 1963, no writ) (county must pay architect in accordance with contract);
Wyatt Metal & Boiler Works v. Fannin County, 111S.W.2d 787 (Tex. Civ. App. -
Texarkana 1937, writ dism’d) (county may be held liable on theory of unjust
enrichment); Attorney General Opinion H-1186 (19781 (state agencies may enter into
conciliation agreements providing back wages to persons who assert a valid
employment discrimination claim under the Civil Rights Act of 1964).
Bee County was legally authorized to enter into the contract under which it
was responsible for the proper disbursement of CETA funds. Attorney General
Opinion H-1212 (1978). You state that under the facts the county is clearly liable.
Such liability is necessary for the county to be authorized to pay the claim.
Attorney General Opinion V-653 (1948). We cannot determine in the opinion process
whether the county is in fact liable, and we do not understand you to be asking us
to do so. We do believe, however, that if the county is liable under the terms of a
valid contract, then article 3, section 52 does not bar the payment of the county’s
obligation.
Your second question concerns whether the county auditor or county
commissioners can be held personally liable for misappropriation of county funds.
Both the county auditor and the commissioners court are responsible for the
proper use of CETA funds. Attorney General Opinion H-1212 (1978). However, the
general rule is that public officers are not liable when acting within the scope of
their duties in a matter that involves the exercise of discretion or judgment unless
they acted willfully, corruptly, maliciously or in bad faith. Campbell v. Jones, 264
S.W.2d 425 (Tex. 1954); ,’489 S.W.2d 706 (Tex.
Civ. App. - Corpus Chr , 267 S.W.2d 187
(Tex. Civ. App. - Austin 1954, writ ref’d n.r.e.1; Welch v. Kent, 153 S.W.2d 284
(Tex. Civ. App. - Beaumont 1941, no writ); Ross v. Gonzales, 29 S.W.2d 437 (Tex.
Civ. App. - San Antonio 1930, writ dism’d). See generally Tex. Jur.2d Municipal
Corporations S 225, at 602-E. It is possible that a public officer might be held
liable on a lesser standard if the duty was purely ministerial. See Hartford
Accident & Indemnity Co. v. Templeman, 18 S.W.2d 936 (Tex. Civ. APP. -
Galveston 1929, no writ). Whether the county auditor or county commissioners
could be held personally liable in a particular instance would depend on factual
determinations that cannot be resolved in the opinion process.
SUMMARY
Article 3, section 52 of the Texas Constitution does not bar
payment by a county of a valid contract claim. Whether the
county auditor or county commissioners could be held
personally liable for misappropriated CETA funds would
depend on the resolution of certain factual issues.
P. 5083
Honorable Marion E. Williams, Jr. - Page 3 (H-1288)
Yery t,ruly yo urs,
&L ’ Attorney General of Texas
,’
APPROVED: l,
DAVID y.. YNDALL, First,-Assistant
5’
&..;;~ /’$f’
L
C. ROBERT HEAT& Chairman
Opinion Committee
jsn
P. 5084