The Attorney General of Texas
June 20, 1978
JOHN L. HILL
Attorney General
Honorable Michael D. Meredith Opinion No. H- 1189
Moore County Attorney
P. 0. Box 634 Re: Authority of Moore County
Dumas, Texas to grant revenue sharing funds to
private day care center.
Dear Mr. Meredith:
You ask whether Moore County may use federal revenue sharing money
to supplement the operating budget of a private nonprofit day care center.
The county receives the funds under the State and Local Fiscal Assistance
A&t of 1972, 31 U.S.C. SS 1221 - 1265. A 1976 amendment to the Act deleted
the provision which required local governments to apply revenue sharing funds
to certain priority expenditures. Pub. L. No. 94-488, 90 Stat. 2341. See also
31 C.F.R. S 51.41. A local government is still required to spend these funds “in
accordance with the laws and procedures applicable to the expenditure of its
own revenues.” 31 U.S.C. S 1243(a)(4).
The commissioners court has only those powers that the Constitution
and statutes have conferred upon it. Canales v. Laughlin, 214 S.W.2d 451 (Tex.
1948). Statutory authority exists for the provision of services to specific
groups of children. See, e.&, V.T.C.S. art. 2351, S 11 (provision for support of
paupers); V.T.C.S. art. 5138 (county homes for dependent and delinquent
children); V.T.C.S. art. 5547-203 (community mental health - mental
retardation centers). See also V.T.C.S. art. 695a-4 (federally established day
care program administered through Department of Public Welfare). Under
appropriate circumstances, these statutes would authorize the county to
provide day care for some children. See Attorney General Opinion H-423
(1974) (child care center operated under.T.C.S. art. 5547-203). Where a
county is authorized to provide child care, it may contract with a private
entity to perform this service. See Attorney General Opinion M-843 (1971)
(cu;c;sct with private agency fzcare .and supervision of juvenile delin-
. See also Attorney General Opmion H-127 (1973) (use of revenue
sharing funds to contract with corporation to establish recreation center for
indigent aged).
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P. 4788
Honorable Michael D. Meredith - Page 2 (H-1189)
However, we find no statute authorizing the commissioners court to provide
day care for all children in the county. ‘Prior opinions of this office have indicated
that the county does not have general authority to provide day care at the
discretion of the commissioners court. See Attorney General Opinions M-264
(1968); O-5386 (1943). The proposed transaction does not require the recipient to
use the funds to provide day care only in those instances where the county could
provide it. It instead appears to be an unconditional grant to a private entity,
which in our opinion constitutes a donation of public funds to a private corporation,
in violation of article 3, section 52 and article ll, section 3 of the Texas
Constitution. See
- Attorney General Opinions H-520 (1975); M-661 (1970); O-5386
(1943).
SUMMARY
While under certain circumstances a county may contract
with private entities for day care services, a county may not
make an unconditional grant of revenue sharing funds to a
private day care center serving children generally. The
proposed expenditure would violate article 3, section 52 and
article 11, section 3 of the Texas Constitution.
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jsn
P. 4789