Could a county commissioner use county money, paid staff, or courthouse space to collect donations for foreign earthquake victims?

Texas AG Opinion JM-431: County Disaster-Aid Collection

Plain-English summary

A Bee County commissioner asked residents to donate money or canned goods for victims of the Mexico City earthquake. The collection operated from the commissioner's courthouse office with county-paid personnel, and checks were payable to the American Red Cross. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

JM-431 concluded that the commissioner could not spend county money or use county-paid personnel on the charitable collection. The Texas Constitution prohibited gratuitous use of public funds or things of value for private persons and organizations without constitutional authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

The opinion drew a narrower conclusion about space. Incidental use of courthouse space as a public donation point did not violate the cited constitutional provisions, and county personnel could volunteer their own time to help. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

Currency note

This opinion was issued in 1986. 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.

Common questions

Could county employees collect donations while being paid by the county?

No. JM-431 treated county-paid staff time as a public resource that could not be used for the private charitable project. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

Could the courthouse serve as a donation drop-off point?

Yes, incidentally. The opinion found no constitutional violation when courthouse space was merely used as a collection point and the use did not interfere with the courthouse's public functions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

Could county employees help outside their paid work?

Yes. JM-431 expressly said county personnel could volunteer their time for the collection effort. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

Did the Texas Disaster Act authorize this project?

Not on the facts presented. No executive order or proclamation had been issued, the county had not taken the required implementation steps, and the opinion found no specific authority in the act for the collection. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

Background and statutory framework

The opinion relied on constitutional provisions limiting grants of public money or things of value, appropriations for private purposes, and taxation to public purposes. It distinguished an improper private grant from an expenditure directly accomplishing a legitimate public purpose that also happened to benefit a private business. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

For courthouse space, JM-431 cited decisions and earlier opinions recognizing reasonable incidental allocation of public-building space when it served public convenience and did not interfere with the building's governmental use. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

Citations and references

• Texas Constitution article III, section 52
• Texas Constitution article XVI, section 6
• Texas Constitution article VIII, section 3
• article 6889-7, V.T.C.S., Texas Disaster Act of 1975
• articles 2351(7) and 1603, V.T.C.S.
• State v. City of Austin, 331 S.W.2d 737, 742 (Tex. 1960)
• Barrington v. Cokinos, 338 S.W.2d 133, 140 (Tex. 1960)
• Dodson v. Marshall, 118 S.W.2d 621, 624 (Tex. Civ. App. - Waco 1938, writ dism'd)
• Tarrant County v. Rattikin Title Co., 199 S.W.2d 269 (Tex. Civ. App. - Fort Worth 1947, no writ)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0431
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0431.pdf

Original opinion text

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

The Attorney General of Texas

JIM MATTOX
Attorney General

February 21, 1986

Honorable Jay T. Kimbrough
Bee County Attorney
Courthouse
Beeville, Texas 78102

Opinion No. JM-431

Re: Whether a county commissioner may use his office to collect international aid for earthquake victims

Dear Mr. Kimbrough:

You provide us with the following facts: a county commissioner has requested that residents of the local community contribute money or canned goods to the Mexico City earthquake victims. Checks are to be made payable to the American Red Cross. The commissioner is collecting the aid at his courthouse office, using personnel paid by the county. You ask the following question:

Is it legal for a county commissioner to use his county-funded, county courthouse office to collect international aid for earthquake victims or any other international disaster?

We agree with your conclusion that a county commissioner may not use either county funds or county personnel for such a project; we do not, however, conclude that incidental use of space in the county courthouse violates relevant Texas constitutional provisions.

Article III, section 52 of the Texas Constitution provides the following in pertinent part:

(a) Except as otherwise provided by this section [exceptions which are not here apposite], the 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, or to become a stockholder in such corporation, association or company. (Emphasis added).

Article XVI, section 6 provides in pertinent part:

No appropriation for private or individual purposes shall be made, unless authorized by this constitution.

Article VIII, section 3 specifies that "[t]axes shall be levied and collected by general laws and for public purposes only."

The rule was set forth in State v. City of Austin, 331 S.W.2d 737, 742 (Tex. 1960):

The purpose of this section [article III, section 51] and of Article XVI, section 6, of the Constitution is to prevent the application of public funds to private purposes; in other words, to prevent the gratuitous grant of such funds to any individual or corporation whatsoever.

We emphasize, however, that:

an expenditure for the direct accomplishment of a legitimate public and municipal purpose is not rendered unlawful by the fact that a privately owned business may be benefited thereby.

Barrington v. Cokinos, 338 S.W.2d 133, 140 (Tex. 1960).

Relying on the above-cited constitutional provisions, numerous Attorney General Opinions have disapproved attempts to divert public funds and other public resources to private persons. See Attorney General Opinions JM-30 (1983) (state funds may not be used to provide private individuals with telecommunications devices for the deaf); MW-532 (1982) (state agency may not offer grant of state funds to private land owners for the purpose of reforesting idle lands); MW-89 (1979) (school district policy permitting teachers to work for professional associations while receiving salaries from the school district is unconstitutional); MW-36 (1979) (county may not spend public funds to purchase and mail Christmas cards); MW-22 (1979) (state funds may not be granted to private individuals to pay their utility costs).

This office has repeatedly held that public monies may not be contributed to private charitable institutions. Attorney General Opinions M-661 (1970) (county may not offer grant of public funds to private religious charitable institutions); O-7197 (1946) (county may not donate county funds to the building within that county of a privately-chartered cooperative hospital); O-5563 (1943) (county may not contribute to private charitable institutions, including homes for the elderly and homes for impoverished children); O-1001 (1939) (county may not contribute public funds to the Tuberculosis Association, to the American National Red Cross nor to any other private charitable organization). Accordingly, we conclude in this instance that the county may not expend public monies or utilize county-paid personnel for the project about which you inquire.

It is suggested that the program which you propose is authorized by article 6889-7, V.T.C.S., the Texas Disaster Act of 1975. Among the declared purposes of the act is to

authorize and provide for coordination of activities relating to disaster prevention, preparedness, response, and recovery by agencies and officers of this state, and similar state-local, interstate, federal-state, and foreign activities in which the state and its political subdivisions may participate. (Emphasis added).

V.T.C.S. art. 6889-7, § 2(6). The act permits the governor by executive order or proclamation to declare a state of emergency. Id. § 5. The act also permits the presiding officer of a governing body of a political subdivision to declare a local state of emergency. Id. § 10. See generally Attorney General Opinions MW-140 (1980); WW-1248 (1962). We need not here determine whether the state or a political subdivision may provide assistance to citizens of a foreign country pursuant to this act because no such executive order or proclamation has been issued. While the above underscored passage from section 2 could be construed to indicate legislative intent that the state and local political subdivisions be permitted to participate in such a project, we have not found nor have you directed us to any statutory or constitutional provision specifically authorizing such participation. The act itself does not confer such authority. In any event, since the county has not taken the required steps to implement the act, the act provides no authority for the county to participate in the program about which you inquire.

We add that, while on the basis of the information which you have submitted to us, it is clear that the county may not expend public monies or utilize county-paid personnel to aid the victims of the earthquake in Mexico City, the incidental use of space in the county courthouse for such a project does not offend relevant Texas constitutional provisions. In Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App. - Waco 1938, writ dism'd), the court held that articles 2351(7) and 1603, V.T.C.S., which repose in the commissioners court the duty to provide and keep in repair the county courthouse and jail, conferred the implied statutory power to rent space in its courthouse for a cigar and cold drink stand. The court declared:

It does not appear that the operation of the stand in the respect contemplated will in any wise interfere with the use of the courthouse for the purposes for which it is intended. If the commissioners' court deems the letting of space in the courthouse to an individual to carry on such business the most practical method for securing such convenience, and if, by so doing, the court does not interfere with the use of the courthouse as a whole for the purposes for which it is intended, and if it appears that the court is exercising a reasonable discretion in this respect, its decisions ought not to be set aside.

118 S.W.2d at 624.

If the commissioners court, without violating the constitution, may lease space in the county courthouse to a commercial enterprise which provides a convenience to those transacting business in the courthouse, we believe the commissioners court is not prohibited from incidentally permitting the use of courthouse space as a collection point for citizens in the county to donate items for relief to victims of natural disasters. See also Tarrant County v. Rattikin Title Co., 199 S.W.2d 269 (Tex. Civ. App. - Fort Worth 1947, no writ) (county has authority to equip space within courthouse allotted to county clerk's office to enable citizens to accomplish privilege of examining records in clerk's office even if abstract company used such space at no expense in order to carry on land title business); Attorney General Opinions MW-200 (1980) (commissioners court may reasonably allocate space in county courthouse to representatives of the media, title companies, and employee credit unions if it determines that the services thereby provided serve the convenience of the public); H-920 (1977) (space may be allocated in state capitol building for news organizations); H-184 (1973) (space may be allocated in state capitol building for news organizations).

Accordingly, we conclude that a county commissioner may not expend county funds or utilize county-paid personnel to collect aid for foreign victims of a natural disaster; however, incidental use of space in the county courthouse for such aid collection efforts does not violate relevant Texas constitutional provisions. Furthermore, county personnel may volunteer their time to assist in relevant collection efforts.

SUMMARY

A county commissioner may not expend county funds or utilize county-paid personnel to collect aid for foreign victims of a natural disaster; however, incidental use of space in the county courthouse for such aid collection efforts does not violate relevant Texas constitutional provisions.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General