AG Opinions and Requests

February 08, 2019

Legislative News

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TAC has highlighted recent Attorney General Opinions and Requests for Opinions of interest to counties.

Attorney General Opinions

KP-0234 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) Summary: 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.

KP-0235 County payment of expenses for contracted workers in specific circumstances (RQ-0238-KP) Summary: 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.

KP-0237 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) Summary: 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.

Requests for Attorney General Opinions

RQ-0263-KP: Ms. Katherine A. Thomas, MN, RN, FAAN, Executive Director, Texas Board of Nursing, Applicability of nondisclosure orders on the licensing operations of the Texas Board of Nursing, and reconsideration of GA-0919 due to amendments to chapter 411 of the Government Code.

RQ-0266-KP: The Honorable Garnet Coleman Chair, Committee on County Affairs, Texas House of Representatives, Whether durational or amount limitations exist for loans and grants issued for economic development programs pursuant to chapter 381 of the Local Government Code.

RQ-0268-KP: Ms. Michelle Darilek, CPA, Jackson County Auditor, Whether the Jackson County Navigation District may require an easement for new and existing aerial utility lines which cross over its boundaries.