Untitled Texas Attorney General Opinion

oftfy2Wmwp General QIXfice &ate of Qexae DAN MORALES Al-rORNEY GENERAL January 19,1995 Honorable Gerald Alan Joy Opinion No. DM-3 17 Potter County Auditor 601 South Taylor Re: Whether a county may pay travel Amarillo, Texas 79101 expenses of an applicant for the position of county forensic pathologist (RQ-712) Dear Mr. Joy: You ask whether the commissioners court of Potter County is authorized to “spend public funds” to pay for the transportation and related travel srpenses of an applicant for the position of forensic pathologist for the purpose of traveling to be interviewed. You explain the situation as follows: Since 1991 the County has employed a forensic pathologist to perform autopsies in questionable deaths. . . . The last one resigned effective March 31,1994. . Prior to and since the last resignation, the County Judge and the Commissioners have contacted and been contacted by a number of candidates for the position. In April, the County Judge, in a good faith effort to hold down County expenses, arranged with a local travel agency to have a plane ticket delivered to one of the candidates with the expectation that the County would pay for it. He knew that it would be cheaper to fly the doctor up here. than for a judge and another official to fly down them for an interview. We understand your query to raise the question of whether article IR, section 52 of the Texas Constitution precludes the commissioners court from spending public tbnds to pay the travel expenses of a candidate for a county position. We conclude that under certain circumstances such an expenditure is not prohibited. We begin our analysis by determining the scope of authority with which the commissioners court is vested. Commissioners courts may exercise only such powers as the constitution or the statutes have specifically conferred upon them. Gmules v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Starr Cotmy v. (herra, 297 S.W.2d 379 (Tex. Civ. App.-San Antonio 1956, no writ). Article V, section 18(b) of the Texas Constitu- tion establishes the commissioners court and provides in pertinent part that [t]he County Commissioners . shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed. p. 1682 Honorable Gerald Alan Joy - Page 2 (DM-317) While the commissioners court is statutorily empowered to act only where expressly authorized, the courts of this state have allowed the exercise of broad authority, express or implied, nexssary to achieve specitic goals authorized by state Jaw. 35 DAVIDBROOKS, COUNTYAND SPECIALDISTIUCTLAW 5 5.11 (Texas Practice 1989); see Glenn v. Da&s Cam@ Bois D’Arc Island Levee Dist., 275 S.W. 137 (Tex. Civ. App.-Dallas 1923), reh’ggranted on other groun&, 282 S.W. 339 (1926), rev’d on other grounk, 288 SW. 165 (Tex. Comm’n App. 1926, jtufgm’r adopfed) (defining the scope of the term “county business”)t; Rodgers v. County of Taylor, 368 S.W.2d 794 (kx. CN. App.-Eastland 1%3, writ ref’d n.r.e.). See generally Pritchard & Abott v. McKenna~ 350 S.W.2d 333 (Tar. 1961) (implied authority to contract with private appraisal Srm upheld). Article 49.25 of the Code of Criminal Procedure provides for the office of county medical examiner. The commissioners court is vested with the express authority to establishandmaintaintheofficeofmedimllexaminer. Furthermore, the court “shall appoint the medical examiner [who must be a physician], who shah serve at the pleasure of the commissioners court.” Code Grim. Pm. art. 49.25 5s 1, 2; 36 BROOKS,supra, $26.9. Although the commissioners court is vested only with the express authority to establish and appoint to such office, we believe that it is logical to presume that the court is vested witb certain implied authority necessary to achieve this specific goal, i.e., the authority to interview quahtied applicants for the position of medical examine-r. We now consider whether the authority to interview and appoint includes the authority to pay for the travel expenxs of a candidate for such an appointment. Article Ill, section 52 of the Texas Constitution provides in pertinent part: pqhe Lagislature shall have no power to authorize any wttnty, city, town or other political corporation 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, assockion or corporation whatsoever. . . See also Tex. Const. art. ID, 5s 50, 51. See generaZ@ 1 GEORGED. BRALEN, TIE ~~T~NSTITUTION OFTHESTATEOFTEXAS:AN ANNUTATED ANDCOMPARATIVE ANALYSIS 232 (1977) (explaining article ID, sections 51 and 52 of Texas Constitution). This provision is mandatory. Texas & N.OR. Co. v. Galwston Comfy, 161 S.W.2d 530 (Tex. Glenn v. Dalhs CountyBois D!4rc IslandLeer Dist., 215 S.W. 131,145. p. 1683 Honorable Gerald Alan Joy - Page 3 (DM-317) Civ. App.-Galveston 1942), af’d, 169 S.W.2d 713 (Tar. 1934). Its purpose is to prevent the making of a grant, loan, or application as a mete charity or gratuity, however, this section does not invalidate an expenditure that incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Brawria Comfy v. Peny, 537 S.W.2d 89, 90-91 (Tex. Civ. App.-Houston [lst Dist.] 1976, no writ); Harris county v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App.-Houston [14th Dist] 1972, writ ref’d n.r.e.); see Attorney Generai Opinions JM-1229, at 3-5, JM-1209, at 1, JM-1199, at 1 (1990); 1 BRADEN,supra, at 233. We note that no fixed rule delineates exactly what constitutes a “public purpose.” See Davis v. City ofTaylor, 67 S.Wfd 1033, 1034 (Tex. 1934) (quoting 6 MCQUUL.EN, ~NM~NI~IPAL CORFORA~ONS 5 2532, at 292 (3d ed. 1991) (stating that “what is a public purpose cannot be answered by any precise definition tiuther than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose”). The determination that a public purpose is being served by an expenditure of finds or an extension of credit rests in the first instance with the governmental entity’s discretion, subject to judicial review. Attorney General Qpinion N-1229 at 6-7. In detenninin g whether a particular grant of public funds or extension of credit serves a legitimate public purpose, the governmental body must also ensure that there are sutlkient controls over such expenditure to tixther the stated purpose. Attorney General QpiionDM-256 (1993) at 3. In Attorney’ General Qpiion M-223 (1%8), this office considered whether a county hospital district was authorized to spend public funds to pay for the travel expemes assockted with the recruitment and interviewing of prospective employees. It was con- cluded that while the hospital district was statutorily authorized to make expenditures on behalf of its efforts to recruit personnel, there was no such authority to pay the travel expense of prospective employees. Id. at 2. We now depart from our former decision, which we believe was based on an overly rigid interpretation of article IlI, section 52, and conclude that in certain circumstan ces the commissioners court is vested witb the authority to pay the travel and related expenses of a prospective employee. Although such an individual is a private citizen rather than a public setvrmt of the wunty or agent thereof, such an expenditure may constitute “county business” if it tirrthers the county’s public purpose of making the most eflicient use of public funds during the in&view process. Thus, in certain kxmstances the payment of any and ail travel expemes of an applicant for the position of county forensic pathologist does not wnstitute the granting of public money or thing of value to an individual in violation of article ID, section 52 of the Texas Constitution.s To the extent that Attorney General Qpiion M-223 is in wntlict with this decision, it is overruled. p. 1684 Honorable Gerald Alan Joy - Page 4 (DM-317) SUMMARY Article III, se&ion 52 of the Texas Constitution requires that expenditures by a wunty be for a public purpose. The determination that such purpose is being served by an expenditure of public timds or an extension of credit rests with the governmental entity’s discretion, subject to judicial review. Jn some cases, article JIJ, section 52 may not preclude a county from paying the travel expenses of an applicant for the position of wunty forensic pathologist. Attorney General Opinion M-223 (1968) is overruled to the extent that it wntlicts with this decision. DAN MORALES Attorney General of Texas JORGE VEGA Fii Assistant Attorney General SARAH J. SHIRLEY Chair. Opiion Committee Prepared by Toya C. Cook Assistant Attorney General