Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MATTOX August 18, 1986
Attorney General
Supreme Court Building Honorable Rem Guerra Opinion No. JM-533
P. 0. Box 12546
Austin, TX. 76711. 2546
Criminal District Mtorney
512l476-2501 Hidalgo County Courthouse Re: Whether a county clerk may
Telex 9101674-1367 Edinburg, Texas "8539 deliver the services of his
Telecopier 512/475.0260 office on credit
714 Jackson, Suite 700 Dear Mr. Guerra:
Dallas. TX. 752024%
21417428944 You have subm::tted the following question:
Does it violate article III. sections 50 and
4624 Alberta Ave.. Suite 160
El Paso, TX. 79905.2793
52, of the Texas Constitution for the county clerk
9151533.3464 of Hidalgo County, Texas to maintain a policy of
allowing the general public, including attorneys,
title ccmpanies. individuals, partnerships, and
-M Texas, Suite 700 corporat:.ons, to maintain credit accounts for
Aston, TX. 77002.3111
paying f,ses due the county clerk? Stated in the
713/223-5666
convsrsez, must the county clerk adopt a cash only
policy on all fees except the filing of lawsuits?
606 Broadway, Suite 312
Lubbock, TX. 79401.3479 The provisions of the Texas Constitution you cite, sections 50
WN747.5236
and 52 of article 'III, as well as article XI, section 3, prohibit the
"lending of credit" by the state or its subdivisions. section 50
4309 N. Tenth. Suite 6 prohibits lending the credit of the state, and section 52 prevents the
McAllen, TX. 76501-1665 legislature from authorizing political subdivisions to lend their
5121682.4547
credit -- thereby :.nhibiting counties indirectly. Article XI, section
3, is a direct prohibition against the lending of its credit by a
200 Main Plaza. Suite 4W county.
San Antonio. TX. 76205.2797
512/2254191 With exceptions not pertinent here, article III, section 52,
reads:
An Equal Opportunity/
Affirmative Action Employer [T]he Le@lature shall have no power to authorize
any county, city, town or other political corpora-
tion or :subdivision of the State to lend its
credit or to grant public money or thing of value
in aid of. or to any individual, association or
corporatj.on whatsoever, or to become a stockholder
in such corporation, association or company.
(Emphasis, added).
p. 2455
Honorable Rene Guerra - Pagr 2 (ai-533)
‘7
Article XI, section 3, reads::
No county, city, or other municipal corporation
shall hereafter bt!come 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. (Emphasis
added).
The other provision, section 50 of article III, declaresi
The Legislatum shall have no power to give or
to lend, or to auxhorize the giving or lending. of
the credit of the State in aid of, or to any
person, associat:ion or corporation, whether
municipal or othe::,, or to pledge the credit of the
State in any mannm: whatsoever, for the payment of
the liabilities, present or prospective, of any
individual, association of individuals, municipal
or other corpcration whatsoever. (Emphasis
added).
In each of these provtrions, the phrases “lend its credit,” “loan
its credit,” and “lending #of the credit” appear to have the same
meaning. The meaning of 1:h.e section 50 language was considered in
Braden, The Constitution ~jf the State of Texas: An Annotated and
Comparative Analysis (1977);volume 1 at page 225, where it was said:
Section 50 states that the legislature may not
‘give’ the credit of the state to anybody, ‘lend’
the credit of the state to anybody, or ‘pledge’
the credit of thlt state for anybody. . . . This
is an involved and somewhat imprecise way of
saying that the state may not aid anybody by
lending him mone:r; by provtding him land, goods,
or services on cl,edit; or by guaranteeing payment
to a third party-z aids anybody by lending him
money or providing him land, goods, or services on
credit. (Emphasis added).
See Attorney General 0pin:ton MW-461 (1982). The Supreme Court of
Texas similarly concluded in City of Cleburne v. Brown, 11 S.W. 404
(Tex. 1889) that the article XI, section 3, language specifying that a
municipality could not in anywise “loan its credit” prevented a city
from accepting, in lieu a:E cash, corporate bonds in payment for
transferring its waterworks to a corporation.
In construing the meai:Lng of particular words in a part of the
Constitution of Texas, such as article III, section 52, resort may be
p. 2456
,
Bonorable Rene Guerra - Pag, 3 (JM-533)
had to other sections of the instrument for the sense in which the
words are used. State v. Gillette's Estate, 10 S.W.2d 984 (Tex.
Comm'n App. 1928). In the-tight of the 9 ' of Cleburnq holding, we
believe the proscriptions of article III, section 52, andI article XI,
section 3, mean that county officers are not authorized -- and cannot
be authorized -- to deliver county services to individuals, associa-
tions or corporations on t,redit unless some other provision of the
constitution authorizes it IO do so. .
You have noted the provisions of Rule 142 of the Texas Rules of
Civil Procedure, authorizing the clerk to require security for costs
from the plaintiff before iissuing any process, but specifying that the
clerk "shall file the'petitlon and enter the same on the docket." The
emphasized provision, we tz;lieve, is necessary to comply with the
command of article I, sectim 13. of the Constitution of Texas that
[a]11 courts shall be open, and every person for
and injury done him, in his lands, goods, person
or reputation, shall have remedy by due course of
law.
See Dillingham v. Putnam, 14 S.W. 303 (Tex. 1890). See also Union
Century Life Ins. Co. v. Chowning, 26 S.W. 982 (Tex. 1894). cf.
r Nelson v. Krusen, 678 S.W.2(r918 (Tex. 1984).
Thus, the county clerk :nust file and docket a petition presented
for filing without requir~ll: immediate payment therefor, because to
refuse would deny the petttioner his constitutional right to open
courts. Cf. LeCroy v. Hanlor!, _ S.W.2d (Tex. 1986) (No. C-4745,
opinion delivered July 2, -986). But the= is no warrant to extend
credit for county fees, fines and other charges not similarly
impinging on constitutional rights and privileges. See Robinson v.
State, 29 S.W. 788 (Tex Crim. App. 1895); Attorney General Opinions
MW-461 (1982). S-42 (1953). Cf. Tex. R. Civ. Proc. 145 (affidavit of
inability to give security). -
SUMMARY
County officers are not authorized -- and
cannot be authorixed -- to deliver county services
to individuals, ,xasociations or corporations on
credit unless sore provision of the Constitution
of Texas authoriza!a it to do so.
s /Y-JJ
Very
JIM
ruly
/c;,
Attorney
yours
MATTOX
General of Texas
p. 2457
Honorable Rene Guerra - Pag#z 4 (JM-533)
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attornq General
RICK GILPIN
Chairman, Opinion Ccmnittee .
Prepared by Bruce Youngblood
Assistant Attorney General
p. 2458