Can a Texas county pay to fly in a job candidate for an interview?

Plain-English summary

Potter County had been paying a forensic pathologist to perform autopsies in questionable deaths since 1991, but the pathologist resigned in 1994 and the county needed a replacement. To save money, the county judge figured it was cheaper to fly a promising candidate to Amarillo for an interview than to send a judge and another official out to meet the candidate. He arranged a plane ticket and expected the county to pay for it. The county auditor wanted to know whether spending public funds on a job applicant's travel ran afoul of article III, section 52 of the Texas Constitution, which forbids a county from giving public money to a private individual.

The Attorney General said the spending was not necessarily prohibited; in some circumstances a county can pay an applicant's travel costs. The reasoning runs through two steps. First, a commissioners court can exercise only the powers the constitution or statutes give it, but Texas courts read that to include the implied authority needed to carry out the express powers. Here, the Code of Criminal Procedure (article 49.25) expressly lets the commissioners court establish the office of medical examiner and appoint a physician to it, so the court necessarily has the implied authority to interview qualified candidates for the job. Second, paying a candidate's travel is allowed if it serves a public purpose. Article III, section 52 is meant to stop counties from handing out public money as charity or a gift, but it does not void an expense that only incidentally helps a private person when the county makes it to accomplish a legitimate public purpose. Interviewing a qualified applicant while keeping the county's costs down can be exactly that kind of public purpose, even though the applicant is a private citizen who benefits from the free ticket.

On the strength of that, the office did something notable: it overruled part of its own earlier opinion. A 1968 opinion (M-223) had said a county hospital district could not pay prospective employees' travel expenses. The office decided that opinion had read the constitution too rigidly, departed from it, and held that in certain circumstances a commissioners court may pay an applicant's travel and related expenses. Whether a particular payment actually serves a public purpose is for the commissioners court to decide in the first instance, with sufficient controls in place, and a court can review that judgment.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional public-purpose rule under article III, section 52 remains a familiar part of Texas county-finance law, but the Code of Criminal Procedure's medical-examiner provision and the related statutes have been amended since 1995, and later opinions have continued to develop the public-purpose analysis. Read this page for how the office reasoned at the time, and check current law and later authority before relying on it for a present-day expenditure.

What the opinion meant for those who asked

For commissioners courts and county auditors: The opinion concluded that a county was not automatically barred from paying a job applicant's travel costs. If the commissioners court determined, with adequate controls, that the spending served a public purpose (such as efficient hiring), article III, section 52 did not forbid it.

For county officials weighing the medical examiner hire specifically: The opinion tied the authority to the express power in Code of Criminal Procedure article 49.25 to establish the medical examiner's office and appoint a physician, and the implied power to interview candidates that goes with it.

For anyone relying on the 1968 opinion M-223: The opinion overruled M-223 to the extent it conflicted, so its flat bar on paying prospective employees' travel was no longer the office's position.

Common questions

Can a Texas county pay for a job candidate's travel to an interview?
Yes, in some circumstances. The Attorney General concluded that paying an applicant's travel expenses does not violate article III, section 52 if the expenditure serves a legitimate public purpose, such as interviewing a qualified candidate efficiently.

Doesn't the constitution ban giving public money to a private person?
Article III, section 52 bars gifts and gratuities to private individuals, but the office explained it does not void an expense that only incidentally benefits a private person if the county makes it to accomplish a real public purpose.

Who decides whether the spending serves a public purpose?
The commissioners court decides in the first instance, and must put sufficient controls in place to keep the spending tied to the stated purpose. A court can review that determination.

Did this change earlier Attorney General guidance?
Yes. The office departed from and overruled part of its 1968 opinion M-223, which had read article III, section 52 too rigidly to allow paying prospective employees' travel.

Background and statutory framework

A Texas commissioners court has only the powers the constitution and statutes confer, a limit the Texas Supreme Court stated in Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948), and a court of civil appeals applied in Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App.—San Antonio 1956, no writ). Article V, section 18(b) gives the court power over "all county business." Within that frame, Texas courts recognize the implied authority necessary to achieve goals the law authorizes, a point reflected in cases like Glenn v. Dallas County Bois D'Arc Island Levee Dist., 275 S.W. 137 (Tex. Civ. App.—Dallas 1923), Rodgers v. County of Taylor, 368 S.W.2d 794 (Tex. Civ. App.—Eastland 1963, writ ref'd n.r.e.), and Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961). Because Code of Criminal Procedure article 49.25 expressly empowers the commissioners court to establish the medical examiner's office and appoint a physician to it, the office inferred an implied power to interview candidates.

The spending question turned on article III, section 52, which the office described as mandatory, citing Texas & N.O.R. Co. v. Galveston County, 161 S.W.2d 530 (Tex. Civ. App.—Galveston 1942), aff'd, 169 S.W.2d 713 (Tex. 1943). The provision's purpose is to prevent grants or loans of public money as charity or gratuity, but it does not invalidate an expenditure that incidentally benefits a private interest if made to accomplish a legitimate public purpose, as the courts of appeals held in Brazoria County v. Perry, 537 S.W.2d 89 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ), and Harris County v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ ref'd n.r.e.). No precise test defines "public purpose"; the Texas Supreme Court in Davis v. City of Taylor, 67 S.W.2d 1033 (Tex. 1934), said an object beneficial to the inhabitants and directly connected with local government qualifies. The office, drawing on its own prior opinions (JM-1229, JM-1209, and JM-1199 (1990), and DM-256 (1993)), placed the public-purpose determination with the governmental body's discretion subject to judicial review and required sufficient controls over the expenditure. Applying all of this, it concluded a commissioners court may, in certain circumstances, pay an applicant's travel expenses, and overruled the contrary part of Attorney General Opinion M-223 (1968).

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. III, § 52 (no grant of public money or credit to a private individual); §§ 50, 51 (related restrictions)
• Tex. Const. art. V, § 18(b) (commissioners court; power over county business)
• Code Crim. Proc. art. 49.25 (county medical examiner; establishment of office and appointment of a physician)

Cases discussed:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App.—San Antonio 1956, no writ)
• Glenn v. Dallas County Bois D'Arc Island Levee Dist., 275 S.W. 137 (Tex. Civ. App.—Dallas 1923); Rodgers v. County of Taylor, 368 S.W.2d 794 (Tex. Civ. App.—Eastland 1963, writ ref'd n.r.e.); Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961)
• Texas & N.O.R. Co. v. Galveston County, 161 S.W.2d 530 (Tex. Civ. App.—Galveston 1942), aff'd, 169 S.W.2d 713 (Tex. 1943)
• Brazoria County v. Perry, 537 S.W.2d 89 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ); Harris County v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ ref'd n.r.e.)
• Davis v. City of Taylor, 67 S.W.2d 1033 (Tex. 1934)

Attorney General opinions discussed:

• JM-1229, JM-1209, JM-1199 (1990) and DM-256 (1993) (public-purpose standard); M-223 (1968) (overruled to the extent it conflicts)

Secondary authority discussed:

• David Brooks, County and Special District Law (Texas Practice 1989); 1 George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis (1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0317
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0317.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

January 19, 1995

Honorable Gerald Alan Joy
Potter County Auditor
601 South Taylor
Amarillo, Texas 79101

Opinion No. DM-317

Re: Whether a county may pay travel expenses of an applicant for the position of county forensic pathologist (RQ-712)

Dear Mr. Joy:

You ask whether the commissioners court of Potter County is authorized to "spend public funds" to pay for the transportation and related travel expenses of an applicant for the position of forensic pathologist for the purpose of traveling to be interviewed. You explain the situation as follows:

Since 1991 the County has employed a forensic pathologist to perform autopsies in questionable deaths. . . . The last one resigned effective March 31, 1994. . . . Prior to and since the last resignation, the County Judge and the Commissioners have contacted and been contacted by a number of candidates for the position. In April, the County Judge, in a good faith effort to hold down County expenses, arranged with a local travel agency to have a plane ticket delivered to one of the candidates with the expectation that the County would pay for it. He knew that it would be cheaper to fly the doctor up here . . . than for a judge and another official to fly down there for an interview.

We understand your query to raise the question of whether article III, section 52 of the Texas Constitution precludes the commissioners court from spending public funds to pay the travel expenses of a candidate for a county position. We conclude that under certain circumstances such an expenditure is not prohibited.

We begin our analysis by determining the scope of authority with which the commissioners court is vested. Commissioners courts may exercise only such powers as the constitution or the statutes have specifically conferred upon them. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App.—San Antonio 1956, no writ). Article V, section 18(b) of the Texas Constitution establishes the commissioners court and provides in pertinent part that

[t]he County Commissioners . . . shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.

While the commissioners court is statutorily empowered to act only where expressly authorized, the courts of this state have allowed the exercise of broad authority, express or implied, necessary to achieve specific goals authorized by state law. 35 David Brooks, County and Special District Law § 5.11 (Texas Practice 1989); see Glenn v. Dallas County Bois D'Arc Island Levee Dist., 275 S.W. 137 (Tex. Civ. App.—Dallas 1923), reh'g granted on other grounds, 282 S.W. 339 (1926), rev'd on other grounds, 288 S.W. 165 (Tex. Comm'n App. 1926, judgm't adopted) (defining the scope of the term "county business")[1]; Rodgers v. County of Taylor, 368 S.W.2d 794 (Tex. Civ. App.—Eastland 1963, writ ref'd n.r.e.). See generally Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961) (implied authority to contract with private appraisal firm upheld).

Article 49.25 of the Code of Criminal Procedure provides for the office of county medical examiner. The commissioners court is vested with the express authority to establish and maintain the office of medical examiner. Furthermore, the court "shall appoint the medical examiner [who must be a physician], who shall serve at the pleasure of the commissioners court." Code Crim. Proc. art. 49.25 §§ 1, 2; 36 Brooks, supra, § 26.9. Although the commissioners court is vested only with the express authority to establish and appoint to such office, we believe that it is logical to presume that the court is vested with certain implied authority necessary to achieve this specific goal, i.e., the authority to interview qualified applicants for the position of medical examiner.

We now consider whether the authority to interview and appoint includes the authority to pay for the travel expenses of a candidate for such an appointment. Article III, section 52 of the Texas Constitution provides in pertinent part:

[T]he Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever . . .

See also Tex. Const. art. III, §§ 50, 51. See generally 1 George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) (explaining article III, sections 51 and 52 of Texas Constitution). This provision is mandatory. Texas & N.O.R. Co. v. Galveston County, 161 S.W.2d 530 (Tex. Civ. App.—Galveston 1942), aff'd, 169 S.W.2d 713 (Tex. 1943). Its purpose is to prevent the making of a grant, loan, or application as a mere charity or gratuity; however, this section does not invalidate an expenditure that incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Brazoria County v. Perry, 537 S.W.2d 89, 90-91 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ); Harris County v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ ref'd n.r.e.); see Attorney General Opinions JM-1229, at 3-5, JM-1209, at 1, JM-1199, at 1 (1990); 1 Braden, supra, at 233.

We note that no fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (Tex. 1934) (quoting 6 McQuillin, Municipal Corporations § 2532, at 292 (3d ed.)) (stating that "what is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose"). The determination that a public purpose is being served by an expenditure of funds or an extension of credit rests in the first instance with the governmental entity's discretion, subject to judicial review. Attorney General Opinion JM-1229 at 6-7. In determining whether a particular grant of public funds or extension of credit serves a legitimate public purpose, the governmental body must also ensure that there are sufficient controls over such expenditure to further the stated purpose. Attorney General Opinion DM-256 (1993) at 3.

In Attorney General Opinion M-223 (1968), this office considered whether a county hospital district was authorized to spend public funds to pay for the travel expenses associated with the recruitment and interviewing of prospective employees. It was concluded that while the hospital district was statutorily authorized to make expenditures on behalf of its efforts to recruit personnel, there was no such authority to pay the travel expense of prospective employees. Id. at 2. We now depart from our former decision, which we believe was based on an overly rigid interpretation of article III, section 52, and conclude that in certain circumstances the commissioners court is vested with the authority to pay the travel and related expenses of a prospective employee. Although such an individual is a private citizen rather than a public servant of the county or agent thereof, such an expenditure may constitute "county business" if it furthers the county's public purpose of making the most efficient use of public funds during the interview process. Thus, in certain circumstances the payment of any and all travel expenses of an applicant for the position of county forensic pathologist does not constitute the granting of public money or thing of value to an individual in violation of article III, section 52 of the Texas Constitution. To the extent that Attorney General Opinion M-223 is in conflict with this decision, it is overruled.

SUMMARY

Article III, section 52 of the Texas Constitution requires that expenditures by a county be for a public purpose. The determination that such purpose is being served by an expenditure of public funds or an extension of credit rests with the governmental entity's discretion, subject to judicial review. In some cases, article III, section 52 may not preclude a county from paying the travel expenses of an applicant for the position of county forensic pathologist. Attorney General Opinion M-223 (1968) is overruled to the extent that it conflicts with this decision.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Toya C. Cook
Assistant Attorney General

[1] Glenn v. Dallas County Bois D'Arc Island Levee Dist., 275 S.W. 137, 145.