Untitled Texas Attorney General Opinion ( 1970 )

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September 8, 1970
Honorable Henry Wade Opinion No. M-689
District Attorney
Dallas County Government Center Re: Does the Commissioners
Dallas, Texas 75202 Court of Dallas have the
authority, jointly with a
Home Rule City, to either
act as a Community Action
Agency under the Economic
Opportunity Act of 1964
(42 U.S.C. 2781 et seq.)
or to designate another
group to serve as a Com-
Dear Mr. Wadei munity Action Agency.
You have requested our opinion on two questions, as
follows:
“(1) Does the Commissioners Court have the
authority to act as Community Action Agency on a
joint basis wrth a City Gwernment existing under
the Home Rule Charter?
"(2) Could the Commissioners Court jointly
with a city operating under a Home Rule Charter,
designate another group to serve as the Community
Action Agency under existing laws and Constitution
that governs the Commissioners Court?"
We consider and answer your first question in the af-
f irmative.
Our opinion is that a county and a home rule city may
work together as a community action agency under either of two
modes of collaboration: a) a simple contractual joint endeavor,
or b) as a Regional Planning Commission or Council of Governments
organized and operating under Article lOllin,Vernon"5 Civil Statute8.
+ All references in this Opinion to Articles are to Articles of
Vernon'5 Civil Statutes unless otherwiae indicated.
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xonorable Henry wade, page 2 (M-669)
This office recently held in Attorney General's Opinion
Number M-264 (1968) that a Commissioners Court, acting alone, did
not have the power either to act as !& community action agency
by itself, or to designate another entity to act as such for it.
A community action agency is defined in Title 42, U.S.
Code Annotated, Section 2790 (a) as follows:
"A community action agency shall be a State
or political subdivision of a State (having elected
or duly appointed governing officials), or a combina-
tion of such political subdivisions, or a public or
private nonprofit agency or organization which has
been designated by a State or such a political sub-
division or combination of such subdivisions, which--
(1) has the power and authority and will per-
form the functions set forth in Section 2795 of this
title, including the power to enter into contracts
with public and private nonprofit agencies and organi-
zations to assist in fulfilling the purposes of this
subchapter, and
(2) is determined to be capable of planning,
conducting, administering and evalua%ing a ccmmunity
action program and is currently designated as a com-
munity action agency by the Director."
Sub-section (b) of said Section 2790, in its relevant
part, reads:
"lb) Components of a wmununitv action procram
may be administered by the community action agency,
where consistent with sound and efficient management
and applicable law, or bv other agencies. Do."
Sub-section (c) of said Section 2790, in its relevant
part, reads:
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Honorable Henry Wade, page 3 (M-689)
"(c) For the plrpoae of this subchapter, a
community may be a city, county, multicity, or
multicounty unit... or a neighborhood or other area
(irrespective of boundaries or political subdivisions)
which provides a suitable organizational base and
possesses the commonality of interest needed for a
community action program. ...-
Sub-section (a) of Section 2791 of said Title 42 reads,
in part:
"La) Each community action agency which is+..
a combination of political subdivisions shall ad,-
minister its program through a cumaunity action
board..."
and the requirements of this board are stated in the immediately
following sub-section (b) of this Section 2791.
The Bulletin on Organizing C-unities for Action under
the 1967 Amendments to the Economic Opportunity Act, published
by the Office of Economic Opportunity iFebruary 1968), at page 4
states the overall purpose of community action agencies as being
2,
...established at the local or state level
to prwide a focal point for anti-poverty efforts
within a community or c-unities. *..(I
The Bulletin then lists a number of goals and required activities
of such agencies.
While some of these activities are beyond the statutory
powers of county commissioners courts, (Attorney General's
Opinion No. H-264 (1968).), nevertheless, some of these activities
are within the clear powers of commissioners courts. See Attorney
General's Opinion Number M-605 (1970). and Articles 2351, 4436a-1,
and 4447a, and other statutes cited in that Opinion. On the other
hand, as to the plenary powers of home rule cities,
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Honorable Henry Wade, page 4 (M-689)
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a home rule city may exercise any power
.D.
not denied it by the constitution or the general
statutes, 50 long as the power is incorporated in
the city charter. sO0" 39 Tex.Jur.2d 642, Muni-
cipal Corporations, Sec. 312.
We are aware that Article 695c. Section 6-A(a), deaig-
nates the State Department of Public Welfare as the Stats Agency
II
.*a to cooperate with the Federal Government
in the administration of the provisions of Title V
of the 'Economic Opportunity Act of 1964' and of
the provisions of such other applicable titles of
the 'Economic Opportunity Act of 1964' as are nw
provided or as may be added thereto from time to
time in the event no other State Agency is by law
designated to cooperate with the Federal Government
in the administration of the prwiaiona of such.
title or titles as may be added to said Act, ...Y.
Our opinion is that this prwision contemplates that local gov-
ernments or organlsations should administer Title II of the
Economic Opportunity Act of 1964, which provides for community
action agencies, and that the State Department of Public Welfare
should render to them such cooperation and assistance as they
might need.
We interpret your first question to ask whether a Com-
missioners Court might collaborate with a city in the manner and
to the extent that their joint endeavors would carry out && the
activities and meet all the goals required of a community action
agency. eommissione~courts are authorized to carry out some
of the activities required of community action agencies: these
courts are not authorized to carry out some of the other activi-
ties required of such agencies. Attorney General's Opinion M-264,
supra,
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Honorable Henry Wade, page 5 (‘M-689)
Our opinion is that a county, acting by its Commissioners
Court, may collaborate under a joint sponsorship with a city to
carry out the activities required by the Office of Economic Gp-
portunity of a community action agency, where the county's under-
takings and obligations do not go further than to exercise those
powers conferred upon it under the law. Otherwise stated, the
county may perform those activities which the law authorizes it
to perform, and the city might perform all other activities re-
quired of a community action agency which the county may not
and does not perform. This joint undertaking would seem to
qualify the two participants, the county and city, as a community
action agency as that term is defined in Title 42, U. S. Code
Annotated, Section 2790(a) supra, except for designation by the
Director.
Under Article 1Ollm any county and any incorporated
city, town or village may voluntarily join themselves together
as a Regional Planning Cononiasionor Council of Gwernments
(Art. lOllm, Sec. 1 and 3) for any or all of the multiple and
varied purposes authorized in that Article. The joint agreement
between the political entities comprising the Comniasion or
Council,
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. . . may provide for the manner of cooperation, ~...~
and the means and methods of the operation of the
Comrdssion. .D.I' (Sec. 5) e ~.__
Section 4 of this Article prwidea. in parts, as follwan
"Under this Act, a Regional Planning Com-
mission shall be a political subdivision of this
state, aOaN Attorney General's Opinion No. M-149 (1967).
The Co5u5issionm av contract with one or
more of its member governments to wrform any
service which that government could, by contract,
have any private organization without governmental
powers perform.."
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Honorable Henry Wade, page 6 (M-689)
In Section 3 is prwided,
I, ... But
nothinq in the Act shall be con-
strued to lrmit the powers of the participating
qwernmental units as provided by existinq law.
The participating governmental units, by appro-
priate mutual agreement, may establish a Regional
Planning Commission for a region designated in such
agreement, provided that such region shall consist
of terrItcry under their respective jurisdictions,
including extraterritorial jurisdiction, if any,
but need not include all of the territory of the
governmental units participating." (Emphasis added.)
In Section i E is stated,
"'Comprehensive Development Planning Process'
means the process of (1) assessing the needs and
resources of an area; (2) formulatinq goals, ob-
jectives, policies and standards to guide its long-
range physical, economic, and human resource de-
velopment.;and (3: preparing plans and programs
theref or r __a D” LEmphasis added.)
Section 2? in its relevant part, reads:
"The purpose of this Act is to encourage and
permit local units of government to join and cooperate
with one another to immwe the health, safetv and
general welfare of their citizens; ... that communities,
areas, and regions grow with adequate street, utility,
health, educational, recreational, and other essential
facilities: .-.-. (Emphasis added.)
Section 6(a) of this Article 1Ollm reads:
"A Regional Planning Commission is authorized
to apply for, contract for, receive and expend for
its purposes any funds or grants from any participating
governmental unit or from the State of Texas, federal
government0 or any other source." Attorney General's
Opinion No. M-518 (1969).
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Honorable Henry Wade, page 7 (M-689)
The prwisions of Article 1Ollm should be liberally
construed pursuant to the rule stated in Board of Ina. Com'rs.
v. Great Southern Life Ins. Co., 150 Tex. 258,239 S.W;Zd 803,
809 (1951). as follows:
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... A law introducing a new regulation-for
the advancement of the public welfare or conducive
to the public good is a remedial statute and should
be liberally construed to effect its purpose. 50
Amer.Jur., p. 420, sec. 395: 59 C.J., p. 1107, sec.
657. ..."
Accord: 82 C.J.S. 916, Statutes, Sec. 387. note 49, and 70
C.J.S. 12, Paupers, Sec. 3-4.
Cur opinion is that the Legislature, by this Article
lOllm, materially enlarged the pwers and the scope of the pwers
conferred upon Commissioners Courts in the respects covered by
the Article, but within the limitation imposed by Article V,
Section 18 of our Constitution which provides that such courts,
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... shall exercise such pwers and jurisdiction
Over all county business, as is conferred by this
Constitution and the laws of the State, or as may
be hereafter prescribed." (Emphasis added.)
In construing this provision of the Constitution our Supreme
Court has said:
II is conferred or obligation
. . . Where a right
imposed on said court, it has implied authority
to exercise a broad discretion to acccmplish the
purposes intended. ...* Anderson v. Wood, 137
Tex. 201. 152 S.W.Zd 1084.1085 (1941). (Emphasis
added.1
Accord: Dodson v. Marshall, 118 S.W.Zd 621,623 (Tex.Civ.App.
1938, error dism.). The term "county business" used in this
provision of the Constitution should be given,
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Honorable Henry Wade. page 8 (M-689)
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...a broad and liberal construction so as not
to defeat the real purpose that was intended to be
accomplished..." Glenn v. Dallas County Bois D'Arc
Island Levee Diet., 282 S.W. 339, 344 {Tex.Civ.App.
1926, on motion for reh., rev. on other grounds, 288
S.W. 165, Tex.Comm.App. 1926).
The courts have so held: Harris County Flood Control Dist. v.
MS, 135 Tex. 239, 140 S.W.Zd 1098 (1940); Morton v. Thomson,
15 S.W.2d 1067, (Tex.Civ.App. 1929, no writ).
The broad powers of the Legislature to delegate its
legislative authority concerning matters of local interest in
support
__ of local self-government are given broad discussion and
application in Trimmier v, Carlton. li6 Tex. 572, 296 S.W. 1070,
1079-1082 j1927).
In answer to your second question, and in the absence
of a stipulation of the powers conferred under Article lOllm,
it is our opinion that the Commissioners' Court can designate
another agency to act as the Community Action Agency but only
to the extent that the functions of the agency, as they pertain
to the Commissioner's Court, are limited to those functions
allowed to be performed by thcaCourt by the statutes and Consti-
tution of Texas. It IS, however, well settled that the Commissioner'
Court is given broad discretion to accomplish the power granted to
them. Rwan v. PiCkett, 237 S.W.Zd 734, (Tex.Civ.App. 1951, no writ)
Anderson v. Wood, 137 Tex. 201, 152 S.W.Zd 1084; Dodson v. Marshall,
118 S.W.Zd 621 (Tex.Civ.App. 1938 err.dism.1, and.that it is the
duty of the Commissioner88 Court to promote the general welfare
of the whole of the county. Stwall v. Shivers, 129 Tex. 256,
103 S.W.Zd 363 (1937).
Attorney General's Opinion Number M-605 (1970) as well
as authorities cited therein, express the legal concept that our
law is a changing thing that must grw and adjust to current con-
ditions. Associated Indemnity Corn,. v. Oil Well Drillinq Co.,
258 S.W.2d 523,529 (Tex.Civ.App. 1953, affirmed, Tex.Sup. 264
S.W.Zd 697 (1954). By virtue of its duties and responsibilities,
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Honorable Henry Wade, page 9 (M-689)
the Commissioner's Court has the implied power to designate an
agent or agency to act as the Community Action Agency, prwided
that such agent or agency does not usurp the non-delegable duties
of the Commissioner's Court in exercising judgment and discretion
and deciding overall policies and plans and confines its acti-
vities to the carrying out of theae decisions and exercising
only ministerial functions. Hill v. Sterrett, 252 S.W.2d 766
(Tex.Civ.App. 1952, error ref. n.r.e.) at page 770; Gano v. Palo
Pinto County, 71 Tex. 99, 8 S.W. 634 (1888): Pritchard & Abbott
v. McKenna, 162 Tex. 617, 350 S.W.2d 333 (1961). It is generally
held that a county board considered as a governmental agency has
implied power to employ agents and servants. 20 C.J.S. 896,
Counties, Section 101(l), page 1014, section 180. 15 Tex.Jur.Zd
321, Counties, Section 94, and cases there cited.
SUMMARY
The Commissioner's Court has the authority
to act on a joint basis with a home-rule city in
the establishment of a community action agency, and
in this connection, the Commissioner's Court may des-
ignate another agent or agency to serve as the Com-
munity Action Agency on this joint basis with the
city: so long as the non-delegable duties of the
Commissioner's Court regarding decision making and
exercise of judgment and discretion are not permitted
to be usurped by such agency, but limited only to the
exercise of ministerial functionrr.
Attorr&y General of Texas
Prepared by Melvin E. Corley
Assistant Attorney General
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Honorable Henry Wade, page 10 (M-689)
APPROVED:
OPINIa CCMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Gilbert Pens
Ralph Rash
Lehman Marks
E. L. Hamilton
ME?DE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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