Untitled Texas Attorney General Opinion

The Attome,)/ General of Texas Dlzcember 27. 1984 JIM MAllOX Attorney General Ronorable Jay T. Kfmbrough Opinion No. JM-274 Supreme Court BuildIn P. 0. Box 12545 Bee County Attorney Austin. TX. 78711. 2549 Room #204, Courthov se Re: Whether the Bee County 51214752501 Beeville, Texas 78102 Community Action Agency may Telex 91OlS74-1357 receive Interest free loans TeIecoDier 51214750288 from a bank which is a depos- itory for Bee County 714 Jackson. Suite 700 Dsllar. TX. 752024506 Dear Mr. Kimbrough: 2141742-0944 You ask whether the Bee County Comnity Action Agency 4824 Alberta Ave., Suit4 1.50 [hereinafter Agency] may receive an interest-free loan from a bank El Paso, TX. 799052793 which is a depository for Bee County. Apparently. the bank in 91515~3dS4 question gives the Agency interest-free loans based on the county’s credit with the b,%nk. You refer to the Agency as a not-for-profit agency but indicate that it is organized by the Bee County Jo1 Texas, Suite 700 Houston. TX. 77002-3111 Commissioners Court and funded through various government programs. 713l2255888 Regardless of whether the county is even authorized to organize this Agency. we conclude that such an Agency cannot receive interest-free loans in the instances described herein. 806 Broadway. Suite 312 Lubbock, TX. 79401-3479 8061747.5239 The basis for this conclusion differs according to whether the Agency is an indepmsndent entity or whether it is an “extension” of the county. Because 1,t is unclear which type of entity is presently in 4309 N. Tenth. Suite B question, each deserves analysis. McAllen. TX. 78x)l.lSSS 5121682.4547 If the Agent:? in question is an “extension” of the county, it cannot receive inl:erest-free loans because the county itself cannot 2&l Main Plaza. Salt0 400 receive such loant;. An agency or arm of a local governmental entity San Antonio. TX. 782052797 has no greater pov’er than the local governmental entity which creates 51212254191 the agency. Attorney General Opinion JM-220 (1984). Counties possess only the powers expressly or by necessary implication authorized by An Equal OPPOftUnitYl the Texas Constitut:ion or statutes. _Canales v. Laughlin, 214 S.W.?d Aftirmstive Action Employer 451 (Tex. 1948). Counties lack authority eo borrow money except through the issuance of bonds, certificates of. obligation, or other forms of indebtedness which are specifically authorized by law. See Tex. Const. art. XI, 57; Brown v. Jefferson County, 406 S.W.Zd 185 (Tex. 1966) ; -mm see also Tex. Const. art. III. 552-b; art. VIII, 59 (because counties ere limited in property taxes they may levy, their power to incur debt is limited); see generally V.T.C.S. arts. 701 g -, 2368a.l; cf. -- V.T.C.S. arts. 1644~. 1644c-1. Accordingly, the honorable Jay T. Kimbrough - Page 2 (JPI-274) Agency cannot receive interest-free loans from Bee County’s depository bank. If, on the other t la.nd, the Agency is an independent not-for-profit legal entity with which the county merely contracts, a, for the delivery of certain authorized social services on an independent contract basis, then the Texas Constitution may prohibit the loans in question. If the Agency is a private, not-for-profit entity, and thus not connected to the county, it would be free to seek loans from any bank, subject to legal limitations applicable to not-for-profit corporations and associations which are not in issue here. Apparently, the bank in, question gives the Agency interest-free loans based on the county’s c,redit with the bank. If the county acts, in this manner, as a guaran:or or surety for these loans, the Texas Constitution prevents counties from lending their credit to any individual, association, or cclrporation. Art. III, §52(a). Article III. section 52(e) provides that Pxcept as otherwis~z provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of t!ae State to lend its credit or to grant public money or thing of value in aid of, or to any individr~~l. association or corporation whatsoever, or to become a stockholder in such corporation, assoc:i.ation or company. (Emphasis added). See also Tex. Const. art. XI, 513.7. The Texas Constituticn prohibits the use by a political subdivision of its public funds or credit for private purposes. State v. City of Austin, 331 S.‘rJ.2d 737 (Tex. 1960). I!Io fixed rule delineates exactly what con:;t:itutes a public purpose. Nevertheless, the prohibition of article III. section 52, extends to private, not-for-profit organizationa. -See Attorney General Opinions MW-329 (1981); V-173 (1947). Consequently, although the county may occasionally contract with a private entity to deliver certain services which the county is specifically authorized to provide, a county may not make an unconditional grant of its #::redit to a private entity. See Attorney General Opinion H-1189 (1978). An incidental benefit tz private person or entity is not prohibited. Attorney General Opinions JM-220 (1084); MW-423 (1982); see - Barrington -- v. Cokinos, 338 S.W.2d 133 (Tex. 1960). Virtual donations z.re prohibited. Attorney General Opinion JM-65 (1983). Any lending of credit must be intended to accomplish an authorized county purpose ::r:d must be accompanied by conditions to P. 1220 Honorable Jay T. Kimbrough - Page 3 (JM--274) ensure the uae of county credit for a public purpose. See Attorney General Opinions m-220 (19184); JM-103 (1983); MW-423 (1982); MU-60 (1979). If the Bee County Cormsunity Action Agency in an "extension" of Bee County, it cannot receive intereat-free loa!>:, from a bank which is a depository for Bee County. If, on the other hand, the Agency is an independent, private. legal entity, any lending of county credit as a guarantor or surety on loans to the Agency on an independent Contl'sct basis must be for an authorized county purpose and must have conditions attached to ensure the accomplishment of that county purpose. Attorney General of Texas TOM GREEN First Assistant Attorney Ger:e,ral DAVID R. RICHARDS Executive Assistant Attorney, General RICK GILPIN Chairman, Opinion Committee Prepared by Jennifer Riggs Assistant Attorney General APPROVBD: OPINION COMMITTEE Rick Gilpin. Chairman Colin Carl Susan Garrison Tony Guillory Jim Moellinger Jennifer Riggs