Can a county use its own employees and equipment to deliver USDA surplus food for a nonprofit charity?

Texas AG Opinion JM-1240: Can a County Use Its Crews to Deliver Charity Food?

Plain-English summary

The Nolan County Attorney asked whether the county could authorize the use of its employees and equipment to transport surplus agricultural commodities for a nonprofit. People for Progress, Inc. (PPI), a nonprofit community action agency funded largely by grants, had been designated by the Texas Department of Human Services (DHS) to distribute surplus commodities that DHS receives from the USDA in Nolan County. PPI was responsible for hauling the commodities to the county, and DHS funds were available to reimburse local agencies for transportation, storage, and distribution costs. PPI had used a private carrier, but the carrier became unavailable and the county was asked to step in. The county worried that using its own employees and equipment for a private organization might violate the constitutional bans on a county giving money or anything of value to a corporation.

The Attorney General did not order the county either to do the hauling or to refuse. Instead, the opinion made three points. First, the constitutional gift bans in article III, section 52 and article XI, section 3 prohibit donating money or a thing of value to a corporation, but supporting public health and providing for residents who cannot support themselves is a recognized public purpose, not a gift. Section 122.001 of the Health and Safety Code lets a commissioners court spend general revenue on public health, and section 6 of article 2351, V.T.C.S., required the court to provide for the support of residents unable to support themselves. Second, the fact that DHS had designated a nonprofit to distribute the commodities did not relieve the county of those statutory responsibilities; Human Resources Code section 11.003 says as much directly. Third, whether local conditions in Nolan County actually justified using county employees and equipment to help PPI feed the needy was a fact question for the commissioners court to decide in the first instance.

The bottom line: the county was not barred from helping, but if it did help, any assistance had to be subject to controls, contractual or otherwise, so that a public purpose was actually being served.

Currency note

This opinion was issued in 1990. 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.

Who this opinion affected (as of 1990)

Nolan County and its commissioners court: The opinion told the court that the state's use of a nonprofit distributor did not strip the county of its authority to spend on public health or its duty to support residents who cannot support themselves. Whether to commit county employees and equipment to help PPI was a discretionary fact call for the court, subject to judicial review for abuse of discretion, and any help had to be tied to controls that kept it a public purpose.

Nonprofit community action agencies like PPI: The opinion treated the designation of a nonprofit as a DHS distributing agent as a way to run the program, not as something that shifted the underlying public-welfare responsibilities away from the county. A county could contract with or otherwise assist such an agency to perform services the county itself could perform.

Counties weighing aid to private charities generally: The reasoning distinguished a forbidden gift to a corporation from a permissible expenditure that serves a county public purpose (here, public health and support of the needy). The public-purpose framing, plus controls to ensure the purpose is carried out, was the line the opinion drew.

Common questions

Did the constitution flatly forbid the county from helping a private nonprofit?
No. The opinion recognized that article III, section 52 and article XI, section 3 prohibit donating money or a thing of value to a corporation, but it treated spending on public health and support of the needy as a public purpose rather than a gift, so the bans did not automatically block county assistance.

Did handing distribution to a nonprofit let the county off the hook?
No. The opinion pointed to Human Resources Code section 11.003, which provides that no provision of that title releases counties and municipalities from their specific responsibilities regarding public welfare, child welfare, and relief services.

So could Nolan County use its trucks and workers to haul the food?
That was left to the commissioners court. Whether local conditions were such that the court could reasonably use county employees and equipment to aid PPI in feeding the needy was, in the opinion's words, a fact question for the court to resolve in the first instance.

Were there any strings attached if the county did help?
Yes. The opinion said any assistance the county provided had to be subject to controls, contractual or otherwise, to ensure the public purpose was carried out.

Background and statutory framework

Under Human Resources Code section 33.001, DHS is the state agency designated to cooperate with the federal government in administering the distribution of federal surplus commodities, and it may cooperate with a city or county in any manner necessary for the proper operation of the program. Section 33.003 lets DHS establish distribution districts and employ distributing agents, or make other arrangements, to distribute commodities and food stamps efficiently. DHS had used that authority to designate PPI as its distributing agent in Nolan County.

The county's concern was the constitutional gift bans. A commissioners court has the powers expressly conferred on it plus the implied powers necessary to exercise them (Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)), and article III, section 52 and article XI, section 3 of the Texas Constitution prohibit a county from donating money or any other thing of value to a corporation. But the opinion balanced that against affirmative county duties: section 6 of article 2351, V.T.C.S., required the commissioners court to provide for the support of residents unable to support themselves, and section 122.001 of the Health and Safety Code let the court appropriate and spend general revenue for public health and sanitation, a discretionary power reviewable only for abuse.

The opinion distinguished the county's two cited precedents. Attorney General Opinion JM-431 (1986) had found no authority for a county commissioner to spend county funds or use county-paid personnel to collect aid for foreign victims of a natural disaster; Attorney General Opinion M-812 (1971) had found counties authorized to spend county funds to carry out the food stamp program where the county contracted with the State Department of Public Welfare under then article 695c, V.T.C.S. The opinion added that it is well established that a county may contract with a private entity to perform services it could perform itself, citing Attorney General Opinions JM-716 (1987), JM-65 (1983), and H-127 (1973). It also quoted the purpose clause and legislative findings of Title IV of chapter 33 of the Human Resources Code (Acts 1985, 69th Leg., ch. 150), in which the legislature declared its intent that every Texan in need of emergency food assistance receive help through the cooperative efforts of the public and private sectors.

Citations

Constitutional and statutory authorities:

• Tex. Const. art. III, § 52; art. XI, § 3 (bans on a county donating money or a thing of value to a corporation)
• Human Resources Code § 33.001 (DHS designated to administer distribution of federal surplus commodities; may cooperate with a city or county)
• Human Resources Code § 33.003 (DHS may establish distribution districts and employ distributing agents)
• Human Resources Code § 11.003 (counties and municipalities not released from their public-welfare, child-welfare, and relief responsibilities)
• Health and Safety Code § 122.001 (commissioners court may spend general revenue on public health and sanitation)
• article 2351, § 6, V.T.C.S. (commissioners court to provide for support of residents unable to support themselves)
• article 695c, V.T.C.S. (former food-stamp/public-welfare statute, later codified in title 2, Human Resources Code)
• Title IV of chapter 33, Human Resources Code (Acts 1985, 69th Leg., ch. 150) (Emergency Food Assistance to Families and Individuals; purpose clause and legislative findings)

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948) (commissioners court has expressly conferred powers plus implied powers necessary to exercise them)

Other authorities:

• Attorney General Opinion JM-1199 (1990); Attorney General Opinion JM-431 (1986); Attorney General Opinion M-812 (1971); Attorney General Opinions JM-716 (1987), JM-65 (1983), and H-127 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1240
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1240.pdf

Original opinion text

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

November 7, 1990

Honorable Lisa L. Peterson
Nolan County Attorney
P. O. Box 1201
Sweetwater, Texas 79556

Opinion No. JM-1240

Re: Authority of county employees to use equipment to transport agricultural commodities for a community action organization (RQ-2024)

Dear Ms. Peterson:

You ask whether the county may authorize the use of its employees and equipment to transport agricultural commodities made available through the United States Department of Agriculture (USDA) for a non-profit organization that has been designated a community action agency.

People for Progress, Inc. (PPI), a non-profit organization funded largely by grants, has been designated by the Department of Human Services (DHS) to distribute surplus commodities which DHS receives from the USDA in Nolan County. You relate the following facts relative to the distribution of such commodities.

[PPI] is responsible for transporting the commodities from a central distribution point to the county, and otherwise complying with the DHS regulations. Funds are available though DHS to reimburse the local agencies for all expenses incurred in transportation, storage, and distribution, even to rental and depreciation of typewriters and other office equipment. (Source: Texas Department of Human Resources Publication No. EFAP-85-0, 1985) Until recently, PPI contracted with a private carrier for the transportation of the commodities. The carrier is now unavailable and the County has been asked to provide transportation.

Section 33.001 of the Human Resources Code addresses the matter of the distribution of federal surplus commodities, as follows:

(a) The department [DHS] is the state agency designated to cooperate with the federal government in administering the distribution of federal surplus commodities and other resources.

(b) The department may cooperate with a city or county in any manner necessary for the proper operation of this program.

Section 33.003 of the Human Resources Code provides for distribution districts and agents. Section 33.003 states:

(a) The department may establish distribution districts and employ distributing agents or may make other arrangements necessary to provide for the efficient distribution of commodities and food stamps.

We do not have the benefit of having the agreement between DHS and PPI before us. However, we understand your question to be whether the county has authority to authorize the use of its employees and equipment to transport the commodities rather than whether the county is under any obligation to participate under the agreement.

You suggest that the use of county employees and equipment may be violative of the constitutional provisions prohibiting a commissioners court from granting money or any other thing of value to any individual, association or corporation. See Tex. Const. arts. III, § 52; XI, § 3. While you recognize that DHS may make arrangements with the county for distribution of the commodities, you note that DHS elected to make arrangements with PPI as its distributing agent. Under these circumstances, you also raise the question of whether there is any statutory authority for the county to participate in the program.

The commissioners court has the powers expressly conferred upon it by the constitution and the legislature, as well as the implied powers necessary to exercise powers expressly conferred. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). Article III, section 52, and article XI, section 3, of the Texas Constitution prohibit a county from donating money or any other thing of value to a corporation. See Attorney General Opinion JM-1199 (1990).

Section 11.003 of the Human Resources Code expressly provides that counties and municipalities are not relieved from their responsibilities by virtue of the assistance rendered by DHS. Section 11.003 provides:

No provision of this title [Hum. Res. Code title 2] is intended to release the counties and municipalities in this state from the specific responsibilities they have with regard to the support of public welfare, child welfare, and relief services. Funds which the counties and municipalities may appropriate for the support of those programs may be administered through the department's local or regional offices, and if administered in that manner must be devoted exclusively to the programs in the county or municipality making the appropriation. (Emphasis added.)

You direct our attention to Attorney General Opinions M-812 (1971) and JM-431 (1986). Attorney General Opinion JM-431 concluded that there was neither constitutional nor statutory authority for a county commissioner to expend county funds or utilize county-paid personnel to collect aid for foreign victims of a natural disaster. Attorney General Opinion M-812 concluded that counties are authorized to expend county funds for carrying out the food stamp program where the county has contracted with the State Department of Public Welfare pursuant to then article 695c, V.T.C.S. (now codified as various sections of title 2, Human Resources Code). You reason that in light of the foregoing opinions, the use of county man-hours and equipment to transport commodities where DHS has a contract with a private agency for such purpose would be an abuse of the use of public funds.

It is well established that a county may contract with a private entity to perform services that it might have performed itself. Attorney General Opinions JM-716 (1987); JM-65 (1983); H-127 (1973). Section 6 of article 2351, V.T.C.S., states that the commissioners court shall provide for the support of residents in the county who are unable to support themselves. Section 122.001 of the Health and Safety Code provides that the commissioners court of a county may appropriate and spend money from the general revenues for public health and sanitation in the county. It is within the discretion of the county to make expenditures for public health in the county. The commissioners court may make reasonable decisions under section 122.001 to spend county funds to protect the public health, subject to judicial review for abuse of discretion. See Attorney General Opinion JM-1199. Matters such as whether the local non-profit corporation has the resources and facilities at its disposal to meet the needs of residents for commodities to meet basic health requirements would appear to be a relevant consideration.

Title IV of chapter 33 of the Human Resources Code (Acts 1985, 69th Leg., ch. 150, eff. Aug. 26, 1985), relative to "Emergency Food Assistance to Families and Individuals" states in the purpose clause and legislative findings:

'Sec. 1. Purpose. It is the intent of the legislature that every Texan legitimately in need of emergency food assistance receive help as rapidly as possible through the cooperative efforts of both the public and private sectors.

'Sec. 2. Legislative Findings. The Legislature finds that:

. . . .

'(10) In 1984, over 500,000 Texans in the civilian labor force were unemployed and not receiving unemployment insurance benefits. Many of these families and individuals report having difficulty getting an adequate supply of food and do not know where to turn for help. Still others do not qualify to receive food stamps benefits.

. . . .

'(13) Responses to a statewide survey conducted by the Senate Interim Committee on Hunger and Nutrition among food banks indicated that food banks face significant difficulty in obtaining a sufficient number of freezers, coolers, trucks, and other equipment to handle the increasing volume of food that they distribute throughout the state. (Emphasis added.)

Whether the findings of the 69th Legislature relative to people in need of adequate food reflect conditions that may exist in Nolan County is not a matter within our knowledge. Whether local conditions are such that the Nolan County Commissioners could reasonably assist PPI in distributing food for the needy is a fact question for the commissioners court to resolve in the first instance. In the event that it is determined that such a need exists, the legislature has evidenced its intent that DHS and a county cooperate in such a program. Any assistance that the county provides must be subject to controls, contractual or otherwise, to insure that the public purpose is carried out.

                  SUMMARY

Nolan County is not relieved of its statutory authority to make expenditures for public health or its responsibility to provide for the support of residents who are unable to support themselves because the Department of Human Services has designated a non-profit organization to distribute agricultural commodities made available through the United States Department of Agriculture. Whether the local conditions are such that the commissioners court could reasonably use county employees and equipment to aid the non-profit corporation in the distribution of adequate food to the needy is a fact question for the commissioners court to resolve in the first instance. In the event such a need exists, the legislature has evidenced its intent that those in need of emergency food assistance receive help through the cooperative effort of the Department of Human Services and the county.

                                Very truly yours,

                                JIM MATTOX
                                Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General