Untitled Texas Attorney General Opinion

1 ‘I The Attorney General of Texas February 21, 1986 JIM MATTOX AttorneyGeneral Supreme Court Building Honorable Jay T. U&rough opinion No. JM-431 P. 0. BOX 12548 Bee County Attorney Austin, TX. 78711.2549 Courthouse Re: Whether a county commissioner 5121475-2501 Beeville. Texas 78102 may use his office to collect inter- Telex 9101974-1367 Telecopier 5121475-0268 national aid for earthquake victims Dear Mr. Kimbrougb: 714 Jackson, Sulle 700 Dallas, TX. 752024506 You provide us with the following facts: a county commissioner 2141742-8944 has requested that residents of the local community contribute money or canned goods to the Mexico City earthquake victims. Checks are 4824 AlbeRa Ave., Suite 160 be made payable to the American Red Cross. The commissioner El Paso, TX. 799052793 collecting the aicl at his courthouse office, using personnel paid 9151533-3484 the county. You ask the following question: lOtI1 Texas, Suite 7W Is it legal for a county commissioner to use HOUS,O~, TX. 77002-3111 his cowrcy-funded, county courthouse office to 713/2236S86 collect i,nternationalaid for earthquake victims or any ot:herInternational disaster? 806 Broadway. Suite 312 Lubbock, TX. 79401-3479 We agree with your conclusion that a county commissioner may not 806/747-5239 use either county funds or county personnel for such a project; we not. however, conc:lude that incidental use of space in the county courthouse violates relevant Texas constitutional provisions. 4309 N. Tenth. Suite q McAllen. TX. 78501.1885 5121682.4547 Article III, section 52 of the Texas Constitution provides following in pertinent part: 200 Main Plaza. Suite 400 (a) Swept as otherwise provided by this section San Antonio. TX. 782052797 [exceptix~s which are not here apposite], the 512/2254191 Legislatxce shall have no power to authorize % county, City, town or other political corporation An Equal OppOrtUIlitYl or subdiv,lsionof the State to lend its credit or Affirmative Action Employer to grant .publicmoney or thing of value in aid of, or to a&d- individual, association or corporation whatsoevmy, or to become a stockholder in such corporat:ttm, association or company. (Emphasis added). Article XVI, section 6 provides in pertinent part: p. 1975 (JM-431) r’ Honorable Jay T. Kimbrough - Page 2 No appropriation for private or individual purposes shall bl! made, unless authorized by this constitution. Article VIII, section 3 specifies that "[tlaxes shall be levied and collected by general laws md for public purposes only." The rule was set for% io State V. City of Austin, 331 S.W.2d 737, 742 (Tex. 1960): The purpose of th:ls section [article III, section 511 and of Article XVT, section 6, of the Constitution is to prevent the application of public funds to private purposes; in other words, to prevent the gzatuitous grant of such funds to any iudividual 01:corporation whatsoever. We emphasize, however, that: an expenditure fwc the direct accomplishment of a legitimate publjc and municipal purpose is not rendered unlawful by the fact that a privately owned business mq be benefited thereby. Earrington v. Cokinos, 338 S.W.2d 133, 140 (Tex. 1960). Relying on the above-cited constitutional provisions, numerous Attorney General Opinions have disapproved attempts to divert public funds and other public resources to private persons. d-S,PU See Attorney General Opinions III-30 (1983) (state funds may not be used to provide private indlvidua:.swith telecommunications devices for the deaf); MW-532 (1982) (state agency may not offer grant cf state funds to private land owners ft#r the purpose of reforesting idle lands); MW-89 (1979) (school district policy permitting teachers to work for professional associations while receiving salaries from the school district is unconstitutional); MW-36 (1979) (county may not rpend public funds to purchase and mail Christmas cards); MW-22 (1979) (state funds may not be g,rantedto private individual6 to pay their utility costs). This office has repeatedly held that public monies may not be contributed to private charitable institutions. Attorney Genarel Opinions M-661 (1970) (county may not offer grant of public funds to private religious charitable institutions); O-7197 (1946) (county may not donate county funds t.o the building within that county of a privately-chartered cooperative hospital); C-5563 (1943) (county may not contribute to private diaritable institutions, including homes for the elderly and homes far impoverished children); O-1001 (1939) (county my not contribute public funds to the Tuberculosis p. 1976 Ronotable Jay T. Kimbrough .-Page 3 (JM-431) Association, to the Amer:.can National Red Cross nor to any other private charitable organization). Accordingly, wa conclude in this instance that the county 'may not expend public monies or utilize county-paid personnel for %e project about which you inquire. It is suggested that the program which you propose is authorized by article 6889-7, V.T.C.S., the Texas Disaster Act of 1975. Among the declared purposes of the act is to authorize and provide for coordination of activi- ties relating t> disaster prevention, prepared- ness, response, and recovery by agencies and officers of thir, state, and similar state-local, interstate, federal-state, and foreign activities in which the staEe and its political subdivisions way participate. (Emphasis added). V.T.C.S. srt. 6889-7, §2(6:~.The act permits the governor by executive order or proclamation to declare a state of emergency. Id. $5. The act also permits the presiding officer of a governingbody of a political subdivision to declare a local state of emergency. Id. 510. See generally Attorney General Opinions MW-140 (1980); WW-12487962). We need not here determine whether the state or a political sub- division way provide ass:tstance to citizens of a foreign country pursuant to this act becat.seno such executive order or proclamation has been issued. While tt.eabove underscored passage from section 2 could be construed to indi.catelegislative intent that the state and local political subdivisions be permitted to participate in such a project, we have not found nor have you directed us to any statutory or constitutional provisicn specifically authorizing such participa- tion. The act itself does not confer such authority. In any event, since the county has not taken the required steps to implement the act, the act provides no .mthority for the county to participate in the program about which you inquire. We add that, while on the basis of the information which you have submitted to us, it is clear that the county may not expend public monies or utilize county-p,aid personnel to aid the victims of the earthquake in Mexico City, the incidental use of space in the county courthouse for such a project does not offend relevant Texas constitu- tional provisions. In Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. APP. - Waco 1938, writ zm?d), the court held that articles 2351(7) and 1603, V.T.C.S., which repose in the commissioners court the duty to provide and keep in ,eepair the county courthouse and jail, conferred the implied statutory power to rent space in its courthouse for a cigar and cold drink stand. The court declared: It does not appear that the operation of the stand in the respect ,contemplated will in any wise p. 1977 Honorable Jay T. Kimbrough - Page 4 (JM-431) interfere with tlur use of the courthouse for the purposes for which it is intended. If the comis- sinners' court dmms the letting of apace in the courthouse to an individual to carry on such business the most practical method for securing such convenience+ and if, by so doing, the court does not interfere with the use of the courthouse as a whole for the purposes for which it is intended, and if it appears that the court is exercising a reasonable discretion in this respect, its deci,sionsought not to be set aside. 118 S.W.2d at 624. If the commissioners court, without violating the constitution, may lease space in the co?znty courthouse to a commercial enterprise which provides a convenien,ce to those transacting business in the courthouse, WC believe the commissioners court is not prohibited from incidentally permitting the use of courthouse space as s collection point for citizens in the c,ountyto donate items for relief to victims of natural disasters. --- See also Terrsut County v. Rattikin Title Co., 199 S.W.2d 269 (Tex. Civ. f.pp.- Fort Worth 1947, no writ) (county has authority to equip space wtthin courthouse allotted to county clerk's office to enable citizens t,aaccomplish privilege of examining records in clerk's office even if abstract company used such space at no expense in order to carry on land title business); Attorney General Opinions MW-200 (1980) (commissioners court may reasonably allocate space in county courthouse to representatives of the media, title companies, end employee credit unions if it determines that the services thereby provided 3srve the convenience of the public); H-920 (1977) (space may be allccated in atate capitol building for news organizations); R-184 (197311(space may be allocated in state capital building for news organizai:ions). Accordingly, we conclude that a county commissioner may not expend county funds or ut:t!!izecounty-paid personnel to collect aid for foreign victims of a natural disaster; however, incidental use of space in the county courthouse for such aid collection efforts does not violate relevant Texas constitutional provisions. Furthermore, county personnel may voluuteer their time to assist in relevant collection efforts. SUMMARY A county comnissiouer may not expend county funds or utilize 'county-paidpersonnel to collect aid for foreign victims of a natural disaster; howaver, incidental use of space in the county p. 1978 Honorable Jay T. Kin&rough '-Page 5 (JM-431) courthouse for such aid collection efforts does not violate relevant Texas constitutional pro- visions. JIM MATTOX Attorney General of Texas JACK HIGHTONER First Assistant Attorney General MARY KELLER Executive Assistant Attormy General ROBERT GRAY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Comaitteo Prepared by Jim Moellinger Assistant Attorney General p. 1979