Can a Texas county spend public money on holiday decorations and literacy programs?

Plain-English summary

Upshur County Criminal District Attorney Billy Byrd asked the AG two questions about the commissioners court's authority to spend county funds: one on holiday lighting and decorations for county buildings, and one on contracting with or donating to a local county literacy program.

The AG started with the basics: a commissioners court has only the powers the constitution or statutes grant it or that are necessarily implied, and it allocates county funds for county purposes. No statute specifically addresses holiday lighting on county buildings. But Local Government Code section 381.004 lets a commissioners court develop and administer programs serving listed purposes, such as state or local economic development, promoting the county, supporting comprehensive literacy programs, and encouraging the arts, and section 381.004(c) lets the court spend county funds, use county employees, and accept contributions to run such a program. Whether placing holiday lights and decorations on county buildings actually serves one of those statutory purposes is a fact question, which the commissioners court must decide in the first instance, subject to court review, rather than something an AG opinion can resolve.

The AG then addressed the religious dimension. If a holiday display includes a religious aspect, the commissioners court should consider the U.S. Supreme Court's Establishment Clause cases. The AG walked through Lynch v. Donnelly, County of Allegheny, and the more recent Town of Greece v. Galloway, describing how the Court has assessed holiday displays by looking at the display as a whole, its purpose and effect, whether it endorses religion in context, and, more recently, history and coercion. Applying either the older Lemon-based analysis from Lynch or the history-and-coercion analysis from Galloway, the AG concluded a court would likely hold that ordinary holiday lights and decorations do not violate the Establishment Clause, because such displays are common, passive, and not coercive, and serve a secular purpose.

On literacy programs, the AG noted that section 381.004 expressly authorizes a commissioners court to contract for or pay county funds to support comprehensive literacy programs for county residents. But the AG cautioned that any expenditure, whether for decorations or literacy, is still subject to the Texas Constitution's prohibition on gratuitous donations of public funds to private entities. A county may spend public money that incidentally benefits a private interest only if the expenditure directly accomplishes a legitimate public purpose. The Texas Supreme Court's three-part test requires that the expenditure's predominant purpose be public, that the county retain control over the funds, and that the county receive a return benefit. As with the statutory-purpose question, the commissioners court must determine in the first instance, subject to judicial review, whether a given expenditure meets these constitutional requirements.

Currency note

This opinion was issued in 2016. 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. Note in particular that the U.S. Supreme Court's Establishment Clause framework discussed here has continued to evolve since 2016.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered that section 381.004 can authorize county spending on both holiday decorations and literacy programs, but that whether a particular expenditure serves a statutory purpose and satisfies the constitutional public-purpose requirement is for the commissioners court to decide first, subject to judicial review.

The commissioners court (as the opinion described it): The opinion placed the threshold determinations with the commissioners court: deciding whether a program fits a section 381.004 purpose, whether a religious holiday display passes the Establishment Clause, and whether an expenditure meets the article III, section 52(a) public-purpose test.

County residents and local programs (as the opinion described them): The opinion treated comprehensive literacy programs for county residents as an expressly authorized purpose under section 381.004, while noting the public-purpose limits on donating funds to a noncounty entity.

Common questions

Can a Texas county pay for Christmas lights on the courthouse?
As the opinion described it, a commissioners court may spend county funds on holiday lights and decorations if it determines the spending serves a purpose listed in Local Government Code section 381.004 and meets the constitutional public-purpose requirements. That determination is the commissioners court's to make first, subject to court review.

Do holiday decorations with religious elements violate the Constitution?
The opinion concluded that ordinary holiday lights and decorations would likely not violate the Establishment Clause, because such displays are common, passive, noncoercive, and serve a secular purpose under both the older and the more recent Supreme Court tests.

Can the county fund a literacy program?
Yes. The opinion noted that section 381.004 expressly authorizes a commissioners court to contract for or pay county funds to support comprehensive literacy programs for county residents.

What is the public-purpose limit on county spending?
The opinion explained that the Texas Constitution bars gratuitous gifts of public funds. To be valid, an expenditure's predominant purpose must be public, the county must retain control over the funds, and the county must receive a return benefit.

Who decides whether a specific expenditure is allowed?
The opinion put that decision with the commissioners court in the first instance, subject to judicial review. An AG opinion cannot resolve the fact-specific questions involved.

Background and statutory framework

A commissioners court has only the powers granted by the constitution or statute or necessarily implied, and acts as the county's legislative body in allocating funds for county purposes, including providing and maintaining county buildings (Tex. Const. art. V, § 18(b); Tex. Loc. Gov't Code § 291.001; City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003); Guynes v. Galveston Cty., 861 S.W.2d 861, 863 (Tex. 1993); Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.—Waco 1938, writ dism'd)). Local Government Code section 381.004 authorizes programs for listed purposes, including economic development, county promotion, comprehensive literacy programs, and the arts, and allows the court to spend county funds to administer them (Tex. Loc. Gov't Code §§ 381.004(b), 381.004(b)(6), 381.004(c), 381.004(c)(1), (3)).

On religious holiday displays, the opinion surveyed Establishment Clause cases applying the secular-purpose, endorsement, and history-and-coercion analyses (U.S. Const. amend. 1; Skoros v. City of New York, 437 F.3d 1, 3 (2d Cir. 2006); Lynch v. Donnelly, 465 U.S. 668, 671-94 (1984); Cty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 593-634 (1989); McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 866 (2005); Town of Greece v. Galloway, 134 S. Ct. 1811, 1821-28 (2014); Lemon v. Kurtzman, 403 U.S. 602 (1971)). On the public-purpose limit, the opinion applied the constitutional ban on gratuitous gifts and the Texas Supreme Court's three-part test (Tex. Const. art. III, § 52(a); Tex. Mun. League Intergov'l Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383-84 (Tex. 2002); Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 18(b); art. III, § 52(a)
• U.S. Const. amend. 1
• Tex. Loc. Gov't Code §§ 291.001, 381.004(b), 381.004(b)(6), 381.004(c), 381.004(c)(1), (3)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0857 (2011)
• Tex. Att'y Gen. Op. No. GA-1018 (2013)
• Tex. Att'y Gen. Op. No. KP-0091 (2015)
• Tex. Att'y Gen. Op. No. O-2928 (1940)
• Tex. Att'y Gen. Op. No. KP-0109 (2016)
• Tex. Att'y Gen. Op. No. KP-0007 (2015)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)
• Guynes v. Galveston Cty., 861 S.W.2d 861 (Tex. 1993)
• Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App.—Waco 1938, writ dism'd)
• Skoros v. City of New York, 437 F.3d 1 (2d Cir. 2006)
• Cty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573 (1989)
• Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Tex. Mun. League Intergov'l Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002)
• Brazos River Auth. v. Carr, 405 S.W.2d 689 (Tex. 1966)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0116
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0116.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 10, 2016

The Honorable Billy W. Byrd Opinion No. KP-0116
Upshur County Criminal District Attorney
405 North Titus Street Re: Whether a county commissioners court
Gilmer, Texas 75644 has authority to expend county funds on holiday
decorations and county literacy programs
(RQ-0105-KP)

Dear Mr. Byrd:

     You ask two questions about the county commissioners court's authority to expend county funds on holiday decorations and county literacy programs. [1] You first ask whether Texas Local Government Code section 381.004 or any other statute authorizes a commissioners court "to expend county funds to place holiday lighting and decorations in and on county buildings and facilities." Request Letter at 1.

    Commissioners courts have only those powers expressly granted by the constitution or by statute and those necessarily implied. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). A commissioners court acts as the county's legislative body and is responsible for budget-making and allocating county funds for county purposes. See TEX. CONST. art. V, § 18(b) (granting a commissioners court "such powers and jurisdiction over all county business, as is conferred by this Constitution" or by statute); Tex. Att'y Gen. Op. No. GA-0857 (2011) at 2. While a commissioners court has "broad discretion in conducting county business, the legal basis for any action taken must be grounded ultimately in the constitution or statutes." Guynes v. Galveston Cty., 861 S.W.2d 861, 863 (Tex. 1993).

    A commissioners court's responsibilities include providing, equipping, and maintaining the county courthouse and buildings. TEX. LOC. GOV'T CODE § 291.001; see also Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.—Waco 1938, writ dism'd) ("The duty to provide a courthouse includes the obligation to furnish same with suitable and necessary equipment."); Tex. Att'y Gen. Op. No. GA-1018 (2013) at 2 (determining that the commissioners court's authority to provide for a courthouse implies authority to reasonably regulate its use). No statute specifically addresses county expenditures for holiday lighting and decorations on county buildings. You reference section 381.004 of the Local Government Code, which provides in part:

             (b) To stimulate business and commercial activity in a county, the commissioners court of the county may develop and administer a program:

                  (1) for state or local economic development;

                  (2) for small or disadvantaged business development;

                  (3) to stimulate, encourage, and develop business location and commercial activity in the county;

                  (4) to promote or advertise the county and its vicinity or conduct a solicitation program to attract conventions, visitors, and businesses;

                 (5) to improve the extent to which women and minority businesses are awarded county contracts;

                 (6) to support comprehensive literacy programs for the benefit of county residents; or

                 (7) for the encouragement, promotion, improvement, and application of the arts.

TEX. LOC. GOV'T CODE § 381.004(b). Subsection (c) authorizes a commissioners court to "contract with another entity for the administration of the program; ... use county employees or funds for the program; and . . . accept contributions, gifts, or other resources to develop and administer the program." Id. § 381.004(c). Thus, section 381.004(c) specifically authorizes a commissioners court to expend county funds for a program that serves a purpose listed in subsection (b). Whether placing holiday lighting and decorations in and on county buildings serves one or more of these purposes will depend on the particular facts and therefore cannot be resolved in an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0091 (2015) at 2 (stating that "[f]act finding is beyond the scope of an attorney general opinion"). [2] Rather, under section 381.004, the commissioners court must determine in the first instance, subject to judicial review, whether a particular program serves a purpose authorized by the statute. See TEX. LOC. GOV'T CODE § 381.004(b).

    In considering whether to expend funds for holiday lights and decorations, if the decorations include a religious aspect, the commissioners court should further consider whether the particular display complies with the United States Supreme Court's Establishment Clause jurisprudence. See U.S. CONST. amend. 1. A holiday display containing a religious aspect may raise constitutional issues when placed on public property or funded with public funds. See Skoros v. City of New York, 437 F.3d 1, 3 (2d Cir. 2006) ("No holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays."). Two Supreme Court cases provide Establishment Clause standards specifically concerning holiday displays and are informed by the Court's latest Establishment Clause case from last term. See generally Cty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 593-94 (1989), abrogated on other grounds by Town of Greece v. Galloway, 134 S. Ct. 1811, 1821 (2014); Lynch v. Donnelly, 465 U.S. 668, 672-78 (1984).

     In Lynch, the Court considered a display on private property located in a city's shopping district. 465 U.S. at 671. The display consisted of city-owned "decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads 'SEASONS GREETINGS,'" as well as a nativity scene that had been part of the display for 40 or more years. Id. Considering the display as a whole and the city's actual motives for including the religious element, the Court upheld the display because celebrating the Christmas season had a legitimate secular purpose and did not have a primary effect of advancing religion. Id. at 681-85. [3] The concurring opinion by Justice O'Connor provided a "clarification of ... Establishment Clause doctrine," analyzing the display using an endorsement test, focusing on "institutional entanglement and on endorsement or disapproval of religion." Id. at 687-89 (O'Connor, J., concurring). Such an inquiry requires that "[e]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion." Id. at 694.

    In County of Allegheny, the Supreme Court upheld a display of a menorah placed near a Christmas tree outside of a county building, but held that a creche located in the main part of the courthouse violated the Establishment Clause. Cty. of Allegheny, 492 U.S. at 579, 601-02, 620-21. In examining the effect of a display in context, the endorsement inquiry asks whether a reasonable, informed person would conclude that the government action was endorsing religion. Id. at 630-34 (O'Connor, J., concurring); see also McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 866 (2005). The central guiding principle from Lynch and Allegheny is whether any religious component in a holiday display or decorations "has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context." Cty. of Allegheny, 492 U.S. at 597. Thus, a county is not prohibited from sponsoring a display that "is essentially like those to be found in hundreds of towns or cities across the Nation-often on public grounds-during the Christmas season," Lynch, 465 U.S. at 671, provided that, when viewed in context, the display as a whole has a secular purpose, does not have a primary effect of endorsing religion, and does not foster an excessive entanglement with religion.

    Finally, the Supreme Court's most recent assessment under the Establishment Clause was last term in Galloway, 134 S. Ct. 1811. County of Allegheny had dicta responding to a criticism of the dissent indicating that legislative prayer in a previous case was permissible because the chaplain had "'removed all references to Christ.'" Galloway, 134 S. Ct. at 1821 (quoting Allegheny, 492 U.S. at 603). The Court clarified that the Establishment Clause did not demand nonsectarian prayer. [4] Ultimately, the Court upheld a sectarian prayer that opened a city council meeting because it was sufficiently rooted in history and noncoercive as to comply with the Establishment Clause. Id. at 1824-28. The Court's analysis is a demonstration that it is trending away from the Lemon v. Kurtzman test and toward an assessment of history and coercion.

    Applying either the Lemon test from Lynch or the history and coercion analysis from Galloway, a court would likely conclude the holiday lights and decorations you ask about would not violate the Establishment Clause. The Lemon test assesses purpose, effect, and entanglement. Lynch, 465 U.S. at 679-85. Holiday lights and decorations posed no Establishment Clause problem for the Court in Lynch when it was applying the Lemon test, and there is no reason to believe they would pose an Establishment Clause problem here. Id. at 671. And under the analysis of Galloway, the historical, secular use of holiday lights and decorations and the fact that they are passive and not coercive further indicate that a Court would likely conclude that they do not violate the Establishment Clause.

    You also ask whether a commissioners court is authorized under Texas Local Government Code section 381.004 or any other statute, "to expend county funds in order to contract with or donate to a local county literacy program in order to provide literacy programs for the benefit of county residents[.]" Request Letter at 1. Section 381.004 expressly authorizes a commissioners court to contract for or to pay county funds for a program to "support comprehensive literacy programs for the benefit of county residents." TEX. LOC. GOV'T CODE § 381.004(b)(6), (c)(1), (3).

    Even if statutorily authorized, however, an expenditure of county funds is subject to the constitutional prohibition against gratuitous donations of public funds to other entities. See TEX. CONST. art. III, § 52(a) (prohibiting the Legislature from authorizing counties, cities, or other political subdivisions to grant money to private entities); Tex. Mun. League Intergov'l Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002) (explaining that article III, section 52(a) prohibits gratuitous payment of public money). While section 381.004 contemplates payments to or contracts with a noncounty entity, a county may constitutionally expend public funds to directly accomplish a legitimate public purpose even though the expenditure incidentally benefits a private interest. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966). The Texas Supreme Court enumerated a three-part test in Texas Municipal League that determines whether an expenditure serves a public purpose, requiring that the political subdivision making the expenditure (1) ensure that the expenditure's

           predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public's investment; and (3) ensure that the political subdivision receives a return benefit.

Tex. Mun. League, 74 S.W.3d at 384. The commissioners court must determine in the first instance, subject to judicial review, whether an expenditure, be it for holiday lights and decorations or for county literacy programs, meets these constitutional requirements. See Tex. Att'y Gen. Op. No. KP-0007 (2015) at 2 (stating that the determination of whether a county expenditure is constitutional must be made initially by the commissioners court, subject to judicial review).

                                SUMMARY

                  Under section 381.004 of the Local Government Code, a commissioners court may expend county funds on holiday lights and decorations on county buildings and facilities, and may expend county funds to contract with or donate to a local county literacy program, to the extent that such expenditures serve purposes specified in the statute. Whether a particular expenditure serves a purpose specified in section 381.004 and meets the requirements of article III, section 52(a) of the Texas Constitution is for the commissioners court to determine in the first instance, subject to judicial review. A court would likely conclude that such a holiday light display is not a violation of the Establishment Clause.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Billy W. Byrd, Upshur Cty. Crim. Dist. Att'y, to Office of the Tex. Att'y Gen. at 1 (Apr. 6, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] A 1940 attorney general opinion answered negatively the question of whether a commissioners court "may legally expend county funds to match or augment funds raised by the local Chamber of Commerce or the retail merchants of Tyler to provide light fixtures necessary to decorate the Court House lawn during the Christmas season." Tex. Att'y Gen. Op. No. O-2928 (1940) at 1-2. The opinion determined that such an expenditure was illegal, not because any law prohibited it, but because the attorney general was unable to locate statutory or constitutional authority that "clearly authorized" a commissioners court to make the expenditure. Id. at 2. Thus, the opinion does not provide guidance for determining a commissioners court's authority under section 381.004 of the Local Government Code, which was first enacted in 1989. See Act of May 28, 1989, 71st Leg., R.S., ch. 1060, § 3, 1989 Tex. Gen. Laws 4305, 4307, amended by Act of June 1, 1997, 75th Leg., R.S., ch. 1037, § 3, 1997 Tex. Gen. Laws 3875, 3877; Act of May 8, 2001, 77th Leg., R.S., ch. 254, § 1, 2001 Tex. Gen. Laws 491, 491; Act of May 25, 2001, 75th Leg., R.S., ch. 1154, § 1, 2001 Tex. Gen. Laws 2560, 2560; Act of May 20, 2003, 78th Leg., R.S., ch. 1275, § 2(109), 2003 Tex. Gen. Laws 4140, 4146; Act of May 29, 2015, 84th Leg., R.S., ch. 1236, § 12.003, 2015 Tex. Gen. Laws 4096, 4135 (codified at TEX. LOC. GOV'T CODE § 381.004).

[3] The Court analyzed the inclusion of the creche utilizing the three-part test in Lemon v. Kurtzman, requiring the government's action to (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster an excessive entanglement between government and religion. Lynch, 465 U.S. at 679-85 (citing Lemon v. Kurtzman, 403 U.S. 602 (1971)). In another recent opinion regarding the Establishment Clause, we highlighted some of the difficulty the Court has had in determining whether to continue to use the Lemon test. See Tex. Att'y Gen. Op. No. KP-0109 (2016) at 4 n.4. While the test has seen more use with regard to displays than prayer, the continued viability of the test remains in doubt.

[4] Galloway, 134 S. Ct. 1821-22 ("Nor did the Court imply the rule that prayer violates the Establishment Clause any time it is given in the name of a figure deified by only one faith or creed. To the contrary, the Court instructed that the content of the prayer is not of concern to judges, provided there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." (citation and quotation marks omitted)).