Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November ~7, 2007
The Honorable Elizabeth Murray-Kolb Opinion No. GA-0583
Guadalupe County Attorney
101 East Court Street, Suite 104 Re: Authority of a county to lease a generator to
Seguin, Texas 78155-5779 a radio station (RQ-0593-GA)
Dear Ms. Murray-Kolb:
The Texas Constitution generally prohibits counties from granting or donating a thing of
value to a private entity. See TEX. CaNST. arts. III, § 52(a), XI, § 3. In light of these prohibitions,
you ask whether the expenditure of county funds to purchase a generator to be leased to a radio
station violates the Texas Constitution. l
You tell us that KWED 1580 is an AM radio station located in Guadalupe County, Texas (the
"County"). See Request Letter, supra note 1, at 1. You relate that KWED maintains two back-up
generators; the County owns one of the generators, and it needs to be replaced. See ide at 2. The
County proposes to expend $4,000, one-third of the total cost, to purchase a new generator. See ide
You state the City of Seguin and private persons will provide the remaining funds to the County.2
See ide The County plans to purchase the generator and lease it to the radio station for "either $0 or
a nominal sum." Id. The lease agreement will authorize the station to use the generator in both
emergency and non-emergency power outage situations. See id KWED will, among other things,
be obligated to disseminate information to the public "in the event of a defined emergency,"
regardless of a power outage. Id.
You do not explain what constitutes a "defined emergency," but you note that KWED is the
only local station with county-wide transmission and has historically provided information from the
County and other local entities to the public "during severe weather conditions." Id. at 1.
Additionally, you explain that under a local flood preparedness plan, KWED is the "go to" radio
station for flood-related information. Id. at 1-2; see also GUADALUPE-BLANCO RIVER AUTHORITY,
1See Letter from Mr. Robert E. Etlinger, Assistant County Attorney, on behalfofHonorable Elizabeth Murray-
Kolb, Guadalupe County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1,3 (June 18,2007) (on
file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
2y ou do not ask about and, therefore, we do not address (1) the authority of a county to accept donations for
the purchase of a generator, or (2) the permissibility of the intergovernmental transfer of funds from a city to a county
for the purchase of a generator.
The Honorable Elizabeth Murray-Kolb - Page 2 (GA-0583)
INTERIM FLOOD PREPAREDNESS PLAN 14 (Aug. 2005), available at http://www.gbra.org/Documents/
Flood/InterimFloodPlan.pdf (listing KWED and NOAA Weather Radio as primary sources for
disseminating flood-related notices,alerts, and evacuation instructions to the public) (last visited
Nov. 19,2007).3
We begin our analysis·by examining the authority of a commissioners court to purchase and
then lease a generator in conjunction with a county's emergency communications to the public. See
TEX. CONST. art. V, § 18(b) (a commissioners court "shall exercise such powers and jurisdiction
... as is conferred by this Constitution and the laws of the State"); City ofSan Antonio v. City of
Boerne, 111 S.W.3d 22, 28 (Tex. 2003) (providing a commissioners court is authorized to exercise
only those powers expressly conferred on it by the Texas Constitution or Legislature, together with
such implied powers as necessary to accomplish those powers expressly conferred).
We find no statutory or constitutional provision expressly placing a duty on a commissioners
court to purchase a generator for use in conjunction with a county's emergency communications to
the public. And you do not tell us under what authority the County proposes to purchase the
generator. However, various statutes may authorize a county to undertake such a purchase. See, e.g.,
TEX. GOV'TCODEANN. §§ 418.107(a), (d) (Vernon Supp. 2007) ("Apolitical subdivision [including
a county] may make appropriations for emergency management services as provided by law for
making appropriations for ordinary expenses" and may issue "time warrants for the payment of the
cost of any equipment, construction, acquisition, or any improvements" to carry out chapter 418.),
418.108(a), (f) (authorizing the county judge to declare a local disaster4 and order a related
evacuation); TEX. HEALTH & SAFETY CODE ANN. § 122.001 (Vernon 2001) (authorizing a
commissioners court to spend general revenue for public health and sanitation purposes). Thus, it
appears, and we assume for the purpose of this opinion, that the purchase of a generator in
conjunction with a county's emergency communications to the public is a statutorily permissible
expenditure.
We find no express authority for a county to lease its personal property in conjunction with
a county's emergency communications. We assume, however, for the purposes ofthis opinion, that
authority to lease a generator is impliedly necessary to carry out powers expressly conferred on the
County. See, e.g., TEX. GOV'TCODEANN. §§ 418.106(a) (Vernon Supp. 2007) (providing that each
local agency shall prepare an emergency management plan providing for disaster mitigation,
preparedness, response, and recovery), 418.1 08(c) ("An order or proclamation declaring, continuing,
or terminating a local state of disaster shall be given prompt and general publicity ....").
3NOAA Weather Radio "broadcasts cannot be heard on a simple AM/FM radio receiver." NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION, NWRREcEIVERCONSUMER INFORMATION, availableathttp://www.nws.noaa.gov/
nwr/nwrrcvr.htm (last visited Nov. 19, 2007). Thus, it appears that KWED is the only readily available local radio
station responsible for disseminating flood-related information to the public under the plan.
4 The Texas Disaster Relief Act defines' the term "disaster" to mean "the occurrence or imminent threat of
widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including
... flood, earthquake, wind, storm." TEX. GOV'T CODE ANN. § 418.004(1) (Vernon Supp. 2007)~
The Honorable Elizabeth Murray-Kolb - Page 3 (GA-0583)
We next consider whether the lease of a county-owned generator to a radio station violates
the Texas Constitution. Your question is premised upon the prohibitions found in article III, section
52(a) and article XI, section 3 of the Texas Constitution:
Sec. 52.(a) Except as otherwise provided by this section, the
Legislature shall have no power to authorize any county ... to lend
its credit or to grant public money or thing ofvalue in aid of, or to any
individual,association or corporation whatsoever, ....
TEX. CONST. art. III, § 52(a).
Sec. 3. No county ... shall hereafter become a subscriber to the
capital of any private corporation or association, or make any
appropriation or donation to the same, or in anywise loan its credit;
but this shall not be construed to in any way affect any obligation
heretofore undertaken pursuant to law ....
TEX. CONST. art. XI, § 3; see also Request Letter, supra note 1, at 2.
The purpose of these prohibitions is not to bar all transactions between counties and private
entities. An expenditure that directly accomplishes a legitimate county purpose may still be valid
even when it incidentally benefits a private interest. See Barrington v. Cokinos, 338 S.W.2d 133,
145 (Tex. 1960) (discussing article XI, section 3); Walker v. City o/Georgetown, 86 S.W.3d 249,
260 (Tex. App.-Austin 2002, pet. denied) (discussing article III, section 52). Rather, "[t]hepurpose
ofthese provisions ofthe Texas Constitution is to prevent the gratuitous application ofpublic funds
for private purposes." Zimmelman v. Harris County, 819 S.W.2d 178,184 (Tex. App.-Houston
[1st Dist.] 1991, no writ). The Texas Supreme Court has held that "[a] political subdivision's paying
public money is not' gratuitous' ifthe political subdivision receives return consideration." Tex. Mun.
League Intergovernmental Risk Pool v. Tex. Worker's Compo Comm 'n, 74 S.W.3d 377,383 (Tex.
2002).
\ Additionally, the court has established a three-part test to determine when a statute
accomplishes a public purpose as required by article III, section 52(a): (1) the predominant purpose
of a statute requiring a public expenditure must be to accomplish a public purpose, not to benefit
private parties; (2) the statute must impose public control over the funds to ensure that the public
purpose is accomplished and to protect the public's investment; and, (3) the· statute must ensure that
the political. subdivision receives a return benefit. See ide at 384. This office applies similar
principles in determining whether an expenditure ofpublic monies or grant ofa public thing ofvalue
by a political subdivision serves a public purpose. See, e.g., Tex. Att'y Gen. Opt Nos. GA-0480
(2006) at 2, GA-0321 (2005) at 3. With this understanding ofthe two constitutional provisions you
cite, we consider your question.
You ask about the propriety ofa lease ofa county-owned generator to a radio station for little
or no money. See Request Letter, supra note 1, at 1,3. You indicate that the County will maintain
The Honorable Elizabeth Murray-Kolb - Page 4 (GA-0583)
ownership of the generator and that the radio station will, under the lease agreement, "be obligated
to test, maintain, repair ... and insure the generator during the life of the lease." Id. at 2.
Additionally, you relate that the radio station will "go 'on the air' live in the event of a defined
emergency," regardless ofwhether a power failure occurs, to provide information to the public. s Id.
We cannot definitively answer your question. Whether the lease ofthe generator to the radio
station is gratuitous is a fact question for the commissioners court in the first instance, subject to
judicial review. See Tex. Att'y Gen. Op. No. GA-0533 (2007) at 5 (explaining that resolving
questions of fact is not appropriate for the opinion process). It is also for the commissioners court
to determine whether the proposed lease serves a predominantly public purpose, the County retains
sufficient control over the transaction, and the lease provides the public with a return benefit. See
Young v. City ofHouston, 756 S.W.2d 813, 814 (Tex. App.-Houston [1 st Dist.] 1988, writ denied)
("Determining a public purpose is primarily a function ofthe legislature, whose decision should not
be reversed, unless manifestly arbitrary and incorrect."); Dodson v. Marshall, 118 S.W.2d 621,624
(Tex. Civ. App.-Waco 1938, writ dism'd) (explaining if the commissioners court exercised
reasonable discretion in leasing space in the courthouse the district court has no authority to
intervene); Bland v. City ofTaylor, 37 S.W.2d 291,293 (Tex. Civ. App.-Austin 1931), aff'd sub
nom., Davis v. City of Taylor, 67 S.W.2d 1033 (Tex. 1934) (determining a public purpose is
primarily a legislative function); cf Tex. Att'y Gen. Op. No. GA-0480 (2006) at 2-3.
5We note that the radio station may, regardless of the lease agreement, "be required to transmit ... public
service messages furnishing information or instructions in connection with a disaster or potential disaster." TEX. GOV'T
CODE ANN. § 418.003(3) (Vernon 2005).
The Honorable Elizabeth Murray-Kolb - Page 5 (GA-0583)
SUMMARY
The purchase and lease of a generator in conjunction with a
county's emergency communications to the public may be
permissible under certain provisions ofthe Texas Disaster ReliefAct
and the Texas Health and Safety Code.
Article III, section 52 and article XI, section 3 of the Texas
Constitution prohibit the gratuitous application of public funds for a
private purpose. As to the lease of a county generator to a local radio
station, neither constitutional provision precludes the lease if the
commissioners court determines:. (1) the lease has as its predominant
purpose the accomplishment of a public, rather than a private,
purpose; (2) the county retains sufficient control over the generator
to ensure accomplishment of the public purpose and to protect the
generator; and (3) the public receives a return benefit.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee