Untitled Texas Attorney General Opinion ( 1966 )

Hon. Charles E. Hughes Opinion No. C-779
County Attorney
Bowie County Re: Whether the commissioners
Texarkana, Texas court may expend county
funds to pay for telephone
service between the offices
of the county and district
clerks at the county seat
and the Texarkana Telephone
Exchange. Whether the
District Clerk of Bowie
County is authorized to
establish and maintain a
full time branch office
Dear Mr. Hughes: in the City of Texarkana.
In two letters to this office you have requested
opinions in regard to the above referenced matters. Two
questions are involved, which may be stated as follows:
(1) May the Commissioners Court of Bowie,County
expend county funds to pay for telephone service between the
offices of the county and district clerks at the county seat
and the Texarkana Telephone Exchange, thereby allowing members
of the public as well as county officials to make direct tele-
phone calls, not subject to long distance charges, between
Texarkana and the offices of the county and district clerks
at the county seat in Boston, Texas?
(2) May the District Clerk of Bowie County estab-
lish and maintain a full time branch office in the,City of
Texarkana?
The following constitutional and statutory provisions
are applicable to discussion of your first question. Article
XVI, Section 6, of the Texas Constitution provides:,
“sec. 6. No appropriation for private or
individual purposes shall be made. A regular
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Ron. Charles E. Hughes, page 2 (C-779)
statement, under oath, and an account of the
receipts and expenditures of all public money
shall be published annually,,in such manner as
shall be prescribed by law.
Article 2351, Vernon's Civil Statutes, provides in
part as follows:
"Each commissioners court shall:
"1. . . .
"7. Provide and keep in repair court houses,
jails and all necessary public buildings.
11'
. . .
"10. Audit and settle all accounts against
the county and direct their payment.
"
. . .
"15. Said court shall have all such other
powers and jurisdiction, and shall perform all
such other duties, asnare now or may hereafter
be prescribed by law.
Article 3899b, Vernon's Clvil Statutes, provides in
part that:
'Section 1. There shall be allowed to County
Judges, Clerks of the District and County Courts,
Sheriffs, County Treasurers, Tax Assessors and
Collectors, such books, stationery, including
blank bail bonds and blank complaints, and office
furniture as may be necessary for their offices,
to be paid for on the order of the Commissioners
Court out of the County Treasury; and suitable
offices shall also be provided by the Commissioners
Court for said officers at the expense of the
county. And such books and stationery as are
necessary in the performance of their duties shall
also be furnished Justices of the Peace by said
Commissioners Court. Provided all purchases
herein must be approved by Commissioners Court,
and must be made under the provisions of Article
1659, Revised Civil Statutes of Texas, 1925."
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Hon. Charles E. Hughes, page 3 (C-779)
Article XVI, Section 6, of the Texas Constitution quoted
above prohibits the expenditure of public funds for'private or
individual purposes. The fact that such private or individual
purposes may incidentally be served as a result of public moneys
being spent on public purposes does not automatically place the
expenditure under the ban of Article XVI, Section 6. The Supreme
Court of Texas in the case of Barrington v. Cokinos, stated:
n
.On the other hand an expenditure for
the direct accomplishment of a legitimate public
and municipal purpose is not rendered unlawful by
the fact that a prfivatelyowned business may be
benefited thereby. 338 S.W.2d 133, 140 (Tex.
1960).
A county commissioners court clearly has the authority
under those portions of Articles 2351 and 3899b, ~quoted above,
to provide telephone service for the clerks of the district and
county courts. Whether or not such service should be provided
is a matter within the discretion of the commissioners court.
. . . The presumption is in favor of the validity of the act
or order of the commissioners' court, when the matter is within
its jurisdiction." 15 Tex.Jur.2d 276, Counties El47 (and cases
cited).
The fact that the proposed telephone service in this
case would cost $185.00 per month as opposed to present long
distance charges of $20.00 per month would not in itself be
sufficient to say that as a matter of law the commissioners
court would be abusing its discretion If It decided on the more
expensive service. Thia office cannot Interpose its judgment
on a matter solely within the discretion of a commissioners
court.
The following statutory provisions are applicable
to discussion of your second question. Article 1605, Vernon's
Civil Statutes, provides in part that:
"The County Judge, Sheriff, Clerks of the
District and of the County Courts, County Trea-
surer, Assessor and Collector of Taxes, County
Surveyor and County Attorney of the several
counties of this State, shall keep their of-
fices at the coFfntyseats of their respective
counties; . . .
Article 199 (5), Vernon's Civil Statutes, provides in
part as follows:
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Hon. Charles E. Hughes, page 4 (C- i'i'9)
”
.provided that the District Clerk of
Bowie County or his deputy shall wait upon said
Court when sitting at Texarkana, Texas, and shall
be permitted to transfer all necessary books,
minutes and records to Texarkana, Texas, while
the Court is in session there; and likewise to
transfer all neceS sary books, minutes, records
and papers from T'exarkana, Texas, to Boston,
Texas,,,at the end of each session in Texarkana,
Texas.
Article 199 ( 102),,Vernon's Civil Statutes, provides
in part as follows:
1,
.provided that the District Clerk of
Bowie County or his deputy shall wait upon said
Court when sitting at Texarkana, Texaa, and
shall be permitted to transfer all necessary
books, minutes, records and papers to Texarkana,
Texas, while the Court is in session there;
and likewise to transfer all necessary books,
minutes, records and papers from Texarkana,
Texas, to Boston, Texas, at $he end of each
session in Texarkana, Texas.
Article 1605, Vernon's Civil Statutes, quoted above,
5s the general law regulating the location of the offices of
the clerks of district courts. This Article provides that such
offices shall be located in the county seats of the respective
counties. Article 199 (5) and Article 199 (102), Vernon's
Civil Statutes, provide that the District Clerk of Bowie County
or his deputy shall,,bepermitted to wait upon a district colrt
when such court is sitting at Texarkana, Texas,
and further provide that-the district clerk shall be pe&fitted
to transfer any necessary documents to Tex%rkana, Texas, . . .
while the court is In session there; . . .
Article 139 (5) provides that the District Cturts of
the 5th Judicial District shall have the authority to . . .
sit at any time in Texarkana, Texas, to try, hear and determine
any civil and criminal nonjury case, and may hear and determine
motions, arguments and such other nonjury civil and criminal
matters as may come before the Court; . . . Article 199 (102)
gives identical authorlty to the District Courts of the 102nd
Judicial District. Those portions of Articles199 (5) and Article
199 (102) quoted above which allow the district clerk to "wait
upon said Court when sitting at Texarkana, Texas, . . .' cannot
properly be interpreted as blanket exceptions to the provisions
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Hon. Charles E. Hughes, page 5 (C-779)
$f Article 1605, Vernon's Civil Statutes, which provide that the
. . .Clerks of District , . , Courts, . . . shall keep their
offices at the county seats of their respective counties; . . .n
The purpose of these provisions Is quite obviously to give autho-
rity to the district clerk to perform such of his functions as
are necessary and complementary to the performance by the
respective district courts of those functions which these courts
may perform in Texarkana pursuant to the authority granted to
these courts by the provisions of Article 199 (5) and Article
199 (102) of Vernon's Civil Statutes. No other interpretation
of these provisions would be compatible with any accepted rules
of statutory construction.
SUMMARY
It is within the discretion of the Commissioners
Court of Bowie County to determine whether or not to
expend county funds to pay for telephone service be-
tween Texarkana and the offices of the county and
distriat clerks at the county seat. The District
Clerk of Bowie County may not establish and main-
tain a full time branch office in the City of
Texarkana.
Yours very truly,
WAQGONER CARR
Attorney General
By;
Lewis E. Berry, Jr.
LEBjr:ra:mkh Assistant
APPROVED:
OPINION COMMITTEE
Pat Bailey, Chairman
John Reeves
Harold Kennedy
Bob Flowers
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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