ATTORNEY GENERAL

Office of the Attorney General

Requests for Opinions

RQ-0264-KP

Requestor:

Mr. José O. Dodier, Jr.

Chairman

Texas State Soil and Water Conservation Board

1497 Country View Lane

Temple, Texas 76504-8806

Re: Whether section 2261.252(e) of the Government Code allows a member of the State Soil and Water Conservation Board to receive funding through an agency program for land improvement measures (RQ-0264-KP)

Briefs requested by February 15, 2019

RQ-0265-KP

Requestor:

Mr. Joe K. Longley

President

State Bar of Texas

3305 Northland Drive, Suite 500

Austin, Texas 78731

Re: Constitutionality of State Bar of Texas governance (RQ-0265-KP)

Briefs requested by February 20, 2019

For further information, please access the website at www.texasattorneygeneral.gov or call the Opinion Committee at (512) 463-2110.

TRD-201900191

Amanda Crawford

General Counsel

Office of the Attorney General

Filed: January 22, 2019


Opinions

Opinion No. KP-0234

The Honorable Timothy J. Mason

Andrews County/District Attorney

121 Northwest Avenue A

Andrews, Texas 79714

Re: Authority of a county commissioners court over disbursing funds received from a compact waste disposal facility under Health and Safety Code section 401.244

(RQ-0236-KP)

S U M M A R Y

Because the funds received by Andrews County under section 401.244 of the Health and Safety Code are raised by operation of law for a public or governmental purpose and are not held by the County as a custodian or in trust, a court would likely conclude that the funds are public funds. As such, they are subject to the restrictions on public spending in Texas Constitution article III, sections 51 and 52.

Article III, sections 51 and 52 require a governmental entity to retain sufficient controls over a public expenditure to ensure the public purpose is met and to protect the public's investment. Accordingly, the County may not relinquish all oversight responsibilities once it disburses the funds to a receiving entity under subsection 401.244(b)(2) and it must retain sufficient control over the disbursed funds to ensure the public purpose is served. The exact nature and scope of that control is for the county commissioners court to determine.

Under the Texas Supreme Court case Lohec v. Galveston County Commissioners Court, the local nonprofit corporation receiving funds from the County under section 401.244 is likely exempt from county purchasing requirements if it is an independent and autonomous entity not meant to function under county supervision.

Opinion No. KP-0235

The Honorable Courtney Tracy Ponthier

Newton County Criminal District Attorney

110 East Court Street

Newton, Texas 75966

Re: County payment of expenses for contracted workers in specific circumstances

(RQ-0238-KP)

S U M M A R Y

Local Government Code section 152.901 authorizes a commissioners court to pay travel expenses for a contract worker who is not wholly compensated from county funds but is acting as an agent on behalf of the county while performing county business authorized by the commissioners court.

No constitutional or statutory provision vests a commissioners court with express authority to pay floodplain management expenses incurred by a contract worker who is not wholly compensated from county funds. However, pursuant to its duty under section 16.315 of the Water Code to engage in floodplain management within the county, a commissioners court may have implied authority to pay these expenses depending on whether the costs are necessary to accomplish an express duty of the county and are consistent with Texas Constitution article III, section 52.

Opinion No. KP-0236

The Honorable Eddie Lucio, Jr.

Chair, Committee on Intergovernmental Relations

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Whether the Texas Southmost College District may acquire and hold title to land from the General Services Administration through the Federal Lands to Parks Program

(RQ-0239-KP)

S U M M A R Y

No state law prohibits the board of trustees for the Texas Southmost College District from acquiring property from the Federal Lands to Parks Program and designating the land for public recreational purposes if the use serves a public purpose of the District.

Opinion No. KP-0237

The Honorable Russell W. Malm

Midland County Attorney

500 North Loraine Street, Suite 1103

Midland, Texas 79701

Re: Whether a county may provide funding to a school district for grounds maintenance, a library, and law enforcement and funding to a hospital district for purchase of a mental health facility (RQ-0240-KP)

S U M M A R Y

Article III, section 52(a) of the Texas Constitution prohibits the expenditure of county funds for private purposes unless the county (1) ensures the predominant purpose of the expenditure is to accomplish a public purpose of the county, not to benefit private parties; (2) retains sufficient control over the public funds to ensure the public purpose of the county is accomplished; and (3) ensures the county receives a return benefit.

Whether a particular expenditure satisfies this three-part test is a determination for the county commissioners court in the first instance subject to judicial review. With respect to the proposed expenditures to a school district, the specific question for the commissioners court is whether providing law enforcement services, grounds maintenance, and a library for an independent school district serves a specific county purpose.

Under article IX, section 13, of the Texas Constitution, a court would likely determine that the County may provide county funds to a county hospital district to purchase a building to be used as a mental health facility.

For further information, please access the website at www.texasattorneygeneral.gov or call the Opinion Committee at (512) 463-2110.

TRD-201900198

Amanda Crawford

General Counsel

Office of the Attorney General

Filed: January 23, 2019