DAN MORALES

ATTORNEY GENERAL 

## QBffice of ttp ZMmtep Qkneral %tate of flkxae

The Honorable Tii Curry Criminal District Attorney Tarrant County 401 West Belknap Fort Worth, Texas 76196-0201 April 4,1996

Opinion No. DM-382

Re: Whether a district clerk may require
an advance deposit of fees for service of process by a sheriff or constable; whether deferred collection of the fee for service of civil process by a sheriff or constable constitutes a loan of credit under article III, section 52, or article XI, section 3, of the Texas Constitution (RQ-757) 

## Dear Mr. curry:
You have asked us whether a district clerk may require an advance deposit of fees for service of process by a sheriff or constable in a civil case. You note that Texas Rule of Civil Procedure 17provides that the serving officer generally may not demand payment of the fee for service of process in a civil case, ‘but his fee shah be taxed and collected as other costs.” You also note that Texas Rule of Civil Procedure 126 provides an exception to rule 17 when process is issued in a case pending in a county other than the county in which the sheriff or constable is to serve process. In that situation, the service fee must be paid in advance or a pauper oath must be on tile in the case. Tex. R Civ. P. 126. We do not consider that exceptional situation inthis opinion.
Taxation of costs is “[t]he process of ascertaining and charging up the amount of costs and fees in an action to which a party is legally entitled, or which are legally chargeable.” BLACK’S

LAWDICIIONARY

1460 (6th ed. 1990). Rule 17therefore requires that the service fee be ascermined and charged as a cost of court, not collected in advance. See Roukhemr v. Alridge, 601 S.W.2d 51, 54 (Tex. Civ. App.--Houston [lst Dist.] 1980, writ ref d n.r.e.) (“there is no statutory authorization for the constable to require an advance deposit of fees for service of citation”).
ln addition, rule 17requires that the fee be “collected as other costs.” Texas Rule of Civil Procedure 149provides for collection of costs by execution as follows:

When costs have been adjudged against a party and are not paid, the clerk orjustice ofthe court in which the suit was determined may issue execution, accompanied by an itemized bii of costs, against such party to be levied and collected as in other cases; and said officer, on demand of any party to whom any such costs are due,The Honorable Tii Curry - Page 2 @M-382)

shall issue execution for costs at once. This rule shall not apply to executors, administrators or guardians in cases where costs are adjudged against the estate of a deceased person or of a ward. No execution shall issue in any case for costs until after judgment rendered therefor by the court. See also Tex. R. Civ. P. 129 (establishing failure to pay costs within ten days of demand
as wndition precedent to authority to issue certified bii of costs), 130 (authorizing sheriB
or constable to levy upon property of debtor party “upon demand and failure to pay said bii of costs”).

Texas Rule of Civil Procedure 143 does, however, authorize the court to enter a prejudgment order, either sua sponte or upon a motion by a party or an interested officer of the wurt, ruling that a party seeking aflirmative relief must give security for costs awruing in the suit. Furthermore, Texas Rule of Civil Procedure 146 permits the party who has been ruled for costs to elect to deposit money instead of posting a cost bond. The court may not set an amount for the deposit in lieu of bond that is greater than the costs that have accruedinthe case. See. e.g., Hager v.Apollo Paper Corp., 856 S.W.2d 512,515 (Tex. App.-Houston [lst Dist.] 1993, no writ).
The rules of civil procedure thus expressly prohibit wmpulsory prejudgment collection of the service fee, see Tex. R. Civ. P. 17, 149, although the court may order that a person seeking tirmative relief give security for the fee, see id. Rule 143. We accordingly conclude that a district clerk has no authority to require an advance deposit of fees for service of process in a case pending in the county in which the sheriff or wnstable is to serve process.
You also ask, contingent on this conclusion, whether the rules of civil procedure violate article III, section 52, and article XI, section 3, of the Texas Constitution by reqdring counties to extend credit to private parties. Section 52(a) of article III provides:

Except as otherwise provided by this section, 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 ofvalue in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company. Section 3 of article Xl provides in part as follows: “No wunty, city, or other municipal corporation i:

_c *.!I hereafter become a subscriber to the capita) of any private corporation or association, nake any appropriation or donation to the same, or in anywise loan its credit

.”

You suggest that taxation ofthe fee for service of process pursuant to rule 17 and delayed wllection of the fee pursuant to rule 149 may violate the wnstitutional prohibitions against the lending of credit for the reason that these procedures amount to

p. 2086The Honorable Tii Curry - Page 3 @M-382)

the extension of credit to the party requesting service. While we agree that taxation and delayed wmpulsory collection of the fee for service of process amount to an extension of credit, we disagree with your assumption that a county necessarily “lend[s]” or “loan[s] its credit” whenever it extends credit to a vendee. It is our opinion that the Texas wurts would hold that the mere fact that a wunty has sold goods or services for deferred payment does not mean that the county has “loan[ed] its credit” within the meaning of article XI, section 3, and that the authorization of such a practice by the Texas Supreme Court pursuant to legislative authority does not mean that the legislature has authorized a

“county

. . to lend its credit

. in aid of, or to any individual, association or wrporation” within the meaning of article III, section 52. In short, we believe that a sale of goods or services for deferred payment is not a “loan of credit” as that phrase and similar phrases are intended in the wnstitution. We conclude that taxation and delayed wmpulsory collection ofthe fee for service of process is a mere extension of credit and so does not implicate the wnstitutional prohibitions against lending credit.

To explain our reasons for reaching this conclusion, it is appropriate tirst to wnsider other wnstitutional provisions that are complementary to section 52 of article III and section 3 of article XI. One provision, section 50 of article III, in the foUowing language prohibits the State itselffiom lendmg its credit:

The Legislature shall have no power to give or to lend, or to authorize the giving or lending, ofthe credit ofthe State in aid of, or to any person, association or corporation, whether municipal or other, or to pledge the credit of the State in any manner whatsoever, for the payment of the liabilities, present or prospective, of any individual, association of individuals, municipal or other corporation
**WhatsoeVer.** ln a 1960 report to the legislature, the Texas Legislative Council explained that this section has substantially the same historical background as article III, section 49, which prohibits, with a few exceptions, the creation of State debt,* and that this section

htion 49(a)

pnwidw Nodcbtshallbccnatedbyoronkhalf~tbeState,acccpt: (1) toJltpplycasualdcficimcicrofnvcnuc,notcxeccdinthca~~at **~OWtiIUCtWOhundrrdthOWWddO~;** (2) torepel

invasion,

suppress ixumwtion,

ordefend

the State inwar, (3) asotlbcmis

aothorizd

hy this umstitotion;

or (4) asaothom bySohsections (b)throogh

(flofthis

section. The6ramaJ~~on49vcrbatimfromtbcpcnasyhraniacoadihrtion,exccptfortheamountof the dcht limitation

(which wasonemillion

dollars inthe Pennsylvania

Ckmstitotion).

Tcx.Comt.

art. III, 849ittterprctivc

commentary.

o. 2087The Honorable Tii Curry - Page 4 @M-382)

“prohibits the State doing indirectly what Section 49 prohibits it doing directly, i.e. becoming indebted as a guarantor or surety for another’s debt.” 2 TFXASLEGISLATIVE COUNCIL, CONSTITUTIONAL REVISION: A STUDY OF THETEXAS CONSTITUTION wfm RECOMMENDED

CHANGES260. Also, section 51 of article III generally forbids the legislature or any govemmentsl agency authorized by the legislature “to grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever.” The Texas Legislative Council stated in its 1960 report that section 5I was intended to supplement the

general prohibition against expenditure of public money for other than public purposes as expressed in Section 3 of Article 8 and the first sentence of Section 6 of Article 16. And, in a somewhat more general way, this section wmplunents the prohibitions expressed in Section 3 of Article II prohibiting donations to the capital of any private corporation or association. Id. at263-64 (footnotes omitted2).
There is no controlling precedent on the question of what exactly is a “loan of credit” under the wnstitution, but there is one Texas decision that appears to be premised
on the assumption that an extension of credit is a loan of credit. The decision ofthe court of civil appeals inMcCarty v.James, 453 S.W.Zd 220 uex. Civ. App.-Austin 1970, writ refd n.r.e.), appears to assume that a sale of cigarette tax stamps to a distributor for payment due fitteen days after receipt of the stamps would wnstitute a lending of the State’s credit under article III, section 50, ifthe distributor were liable for the tax. The wurt avoided the wnstitutional problem however, by interpreting the cigarette tax statute at issue as creating a tax obligation that arose only at the time of the 6rst retail sale of the cigarettes and as imposing the tax only upon the tirst purchaser rather than upon the distributor, who had only a duty to make an “advance payment” of the tax. Id. at 224, 226. Insofar as the cigarettes might be sold before the titkn-day deadline for payment by the distributor, the court approved of the distributor’s payment a&r the time of the tirst sale on the ground that the statute provided for an adequate bond to cover the amount of such deferred payment. Id. at 224. Finally, the wurt recognized a rule of administrative necessity asjustifying areasonable time for a taxpayer to pay taxes: “Regardless of when tax liabiity arises or when taxes become due and payable a reasonable time usually and probably of necessity, is given the taxpayer for making payment. The Legislature is the sole arbiter of the time to be allowed.” Id. If an extension of credit by the State is a loan ofthe State’s credit, the wurt did not acknowledge the apparent wnflict between this rule of administrative necessity and the wnstitutional prohibition.

ae omitted

foomotes quotesection3 ofalticle vm (Taxes &all be levied andwlkxcd by general lawsandforpublicpurposes only”)andparlofscctioa 6 ofarticle

XVI (“Noappropriation for privatcorindividualpuposasbankmade..

.“).

p. 2088The Honorable Tim Curry - Page 5 (DM-382)

McCorry does not establish a precedent that a mere extension of credit by the State is a loan ofthe State’s credit. The McCmty court was not asked and did not consider this issue. “A decision is not authority upon a question not raised and considered in the case, although it may be involved in the facts.” United States v. Miller, 208 U.S. 32 (1908).

“[Share de&is [is] limited to questions raised and decided on tbll wnsideration.” American Tran#er & Storage Co. v. Brown, 584 S.W.Zd 284, 298 (Tex. Civ. App.- Dallas, 1979), rev’d on other grounuk, 601 S.W.2d 931 (Tex. 1980), cert. denied, 449 U.S. 1015 (1980). We therefore are not boundby an unstated assumption in that case Furthermore, having researched our prior opinions, we have found none that analyze the question of whether a credit sale of goods or services by the State or a political subdivision wnstitutes a loan ofthe credit ofthe State or its political subdivision. As the court did in McCarty, this office in prior opinions has assumed that such an extension of credit is a loan of the government’s credit, but none of the opinions indicate that this office actually considered whether the assumption was correct. See Attorney Gene.ralOpiions JM-1229 (1990), Jh4-749 (1987), JM-533 (1986), h4W-461 (1982), No. 2996 (1937). We therefore must consider your question as one oftirst impression.

To aswrtain the meaning ofthe wnstitutional prohibitions against giving, lending,
or pledging credit, it is appropriate to consider “the history of the times” in which they
were adopted, “‘theevils intended to be remedied, and the good to be accomplished.” Travelers’ Ins. Co. v. Marshall, 76 S.W.2d 1007, 1012 (Tex. 1934). In a nineteenth century case, Cify of Clebume v. Gulj, C. & S.F. Ry., 1 SW. 342 (1886) the Texas Supreme Court explained the historical background of section 3 of article XI as follows:

Section 3 of article 11 of the constitution prohibits municipal corporations from making appropriations or donations or loans of its credit to private corporations. The object of this provision was to deprive municipalities of the power possessed by them under the constitution of 1869, in the exercise of which many counties and towns in the state assumed burdens not yet discharged, in anticipation of benefits never reahxed. The increase in population and values expected from railway wnnection in many instances never came; and the tax, not lightened t?om these sources, depressed values, prevented immigration, and became a curse to the localities which had invited it as a blessing. In localities in which the delusion had not been dissipated by experience, the people were still stimulated by false hopes and fraudulent assurances to make extravagant donations to coveted railroads. While the power lasted, corporate greed found local pride and ambition an open way to municipal revenues. The scheme was generally w nstmmtated by a contract, by which the railway company bound itself to construct its line through a county, or in a given distance of a town, in consideration of so many thousand dollars of negotiable bonds of the county or town. This section deprived municipalities ofthe power to

p. 2089The Honorable Tim Curry - Page 6 (DM-382)

make such contracts. Its terms are broad enough to prohibit a city or town, in its wrporate capacity, f+om appropriating its revenues, or using its credit, to obtain right of way and depot grounds for a railwaycompany....

Id. at342.
Railroad investment failures like those just described were occuning in much of the burgeoning nation during the middle nineteenth century. Other states responded with wnsthutional limitations similar to the Texas provisions cited above. According to one author, [t]he first state wnstitutions and the Constitution of the United

States imposed no limits on the extent to which the govexnments they created might incur debt. Until 1840 no state constitution had imposed any limit on the authority of a state to borrow. Behveen 1840 and 1855. however, in reaction to the fmancial mismanagement of early nineteenth century state legislatures, the constitutions of nineteen states were amended to include such restrictions. The practice spread until at the present time the constitutions of all but five states of the Union limit in some way the authority of the Legislature to incur public debt.

. . [Such constitutional restrictions] represent popular reaction to more than one period of “boom and bust” in American history during which state governments borrowed heavily to invest in inte-rnalimprovements, financial institutions, railroads, canals and so on during the boom, only to face great difficulty in meeting their obligations during ensuing “panics.”

. BYRON R. ABERNETHY, CONST~I’UTIONAL

LIMITATIONSON THE LEGISLATURE54-55 (University of Kansas Publications, Governmental Research Series No. 20, 1959), reprinted in2 TEXAS ~GISL.ATNE COUNCIL., supra, at237-38.

Another author explained as follows the various constitutional restrictions that
were added to state constitutions in reaction to the public investment failures of the last century: Debt limitations, provisions requiring electorate approval of

borrowing, prohibitions against the state’s becoming a party to any work of internal improvement, and prohibitions on financial aid to private enterprise were the principal constitutional limitations which emerged. Three principal types [of prohibitions on 6nancial aid to private enterprise] predominate. Fi and most wmmon, is the clause-refmed to herein as the credit clause-which provides that the credit ofthe state and of its political subdivisions “shall not in any

p. 2090The Honorable Tii Curry - Page 7 @M-382)

mamter be given or loaned to or in aid of any individual, association
or corporation.” A second type, almost as fashionable as the tirst, is
a chmse-referred to herein as the stock clause-which prohibits the state and political subdivisions from becoming stockholders in any corporation. These two provisions were a direct response to two wmmon methods of providing public financial assistance to railroads. One method was public guaranty of railroad bonds, which in some instances took the form of an exchange of railroad bonds for gove.mmental~

obligations, the latter then being sold on the market by the private corporation. In reality, the railroad was the principal debtor and the more am-active public credit was made available only to assist it in raising the necessary capital. As a variant of this pro&me, there were instances of the donation of county and mtmicipal bonds to railroad wrporations. The credit clause was designed to ehminate these forms of financial aid to private enterprise. However, in the case of the political subdivisions, the other method-stock subscriptions--was by far the most common form of 6nancial assistance. Typically railroad stock was exchanged for public bonds, the latter, of wurse, being duly sold by the corporation on the market. Even though the public stock subscriptions were almost universally financed by borrowing, the legislatures and courts of the time drew a clear distinction between
an exchange of bonds for bonds, prohibited by the credit clause, and
an exchange of public bonds for railroad stock, which was viewed as a form ofjoint venture in the business of railroading not prohibited by the credit clause. This distinction made necessary the stock clause
as an additional wnstitutional safeguard against public financial assistance to the railroads. The credit and stock clauses, however, did not erect any barrier against loans or donations iinanced out of current taxation, or against gifts of land. A number of states, therefore, adopted additional prohibitions barring this type of aid, even though it did not occur in signiticant proportions. This third type of clause, somewhat less
wmmon than the credit and stock clauses, varies in wording from jurisdiction to jurisdiction. Pennsylvania’s is typical in wmmanding the legislature not to authorize any political subdivision “to obtain or appropriate money for

. . any corporation, association

. or individual.” David E. Pi, State Constitutional Limitations on Public Industrial Financing: An Historicd andEconomic Approach, Ill U. PA. L. REV. 265, 278-79 (1963) (footnotes

p. 2091The Honorable Thn Curry - Page 8 @M-382)

~mitted).~ The author also noted that the phrase “lcndmg of credit” was very “popular in the nineteenth century but now [is] relatively obsolete.” Id. at 280. Although the author described two examples, public guaranties ofrailroad bonds and donations of public bonds to railroad corporations, as being barred by the credit clause, id. at 278-79, he stated no detinition ofwhat activity constitutes “lending of credit.”
The meaning of the phrase %nding of credit” and sii phrases has been a subject of a good number of reported decisions in various states. Texas, unfortunately, is not one ofthose states.
The wurts of some states have narrowly wnstrued “loan of credit” or a similar phrase as including only an assumption of secondary liabiity.’ A thorough treatment of the narrow construction is found in the 1923 case of Grout v. Kendall, 192 N.W. 529 (Iowa). In Grout the Supreme Court of Iowa held that the State of Iowa would not violate a wnstitutional prohibition against giving or lending the state’s credit by issuing bonds for the purpose of paying a bonus to veterans of World War I. Id. at 533. The court reasoned that the lending of credit that was prohibited by the wnstitution was only the creation of a surety obligation:

What is meant by a loan of “credit”? When one signs an accommodation note and delivers it to his neighbor, he loans his credit to his neighbor. He has not created a debt to him. The neighbor is authorized to use the credit with third parties; but he is also under obligation to the maker to protect him against liability and ultimately to return the note. When one becomes surety for his neighbor and signs his promissory notes to third parties, he loans his credit. As to the holder ofthe note, he has promised to pay it; but as between him and the principal maker, it is still the debt of the principal and not that of the surety. The liability of the surety is always secondary and not primary. It is a liability for the debt of another, which such other isbound to pay. Id. at 531. The Iowa court found that secondary liabiity, unlike primary liabiity, seduces the surety into the complacent belief that the surety will not have to pay the obligation, a

3Note that both article III,section

52,andarticle

XI,section

3,include

a credit clause, a stodc chose, and anappmpriation

clause.

4De&ions wncloding that ‘losnofcredit”

ora similar

phraseraeamonly sn asmmptionof scwndsry

UahUity include the following:

Common

Cause Y. Maine, 455 A.2d1.28-29 (Me. 1983);

To&
v. Pen~bania NursingHomeLoanAgency, 331A.2d198,205 (pa 1975);

Johns HopkinsUniversily v. Williams,

86k2d 892,90142@id. 1952); Gruen Y.Tax Commission,

211P.2d651.668-69(Wash. 1949) (en bane); Wisconsin

ex rd. Wisconsin

DevelopmentAuthorityY. Lkmmann, 280 N.W. 698, 715 (Wia. 1938).SeealsoBush Y.Mwtineau, 295 S.W. 9, 11(Ark. 1927) (statute pmvidiagforissuance of state bonds forconstrwtion

ofstate roads wasnot unconsititional,

foritdidnot

prcpose thatstateshould lend credit “hot only use its credit”).

p. 2092The Honorable ‘Iii Curry - Page 9 @M-382)

beliefthat history has proved to be Ikquently unwarranted. Id. The court concluded that the credit clause was intended to prohibit only the “delusion of suretyship” and therefore does not prohibit the undertaking ofprimary obligations:

The ultimate cry ofthe surety is: I would not have become surety if1 had known or believed that I should have to pay the debt. This is as true of states as of individuals. It was to remove this delusion of suretyship with its snare of temptation that this section of the Constitution was adopted. It withheld from the constituted authorities of the state all power or function of suregship. It forbade the incurring of obligations by the indirect method of secondary Uabiity. This is the field and the tbll scope of this section. It does not purport to deal with the creation of a primary indebtedness for any purpose whatever. That question was letl to be dealt with in other sections.

. . . We hold therefore, that the prohibition of section 1, art. 7, has
no reference to the creation of aprimary indebtedness.

Id. Applying this understandmg of the credit clause to the proposed state bond issue under the veterans bonus act, the court found no merit to the argument that the bond issue would be an unwn&itutional loan of credit:

It is urged that when the state borrows money upon its bonds for the purpose of paying the same to the beneticiaries of the act, it loans its credit to such beneficiary, because without the credit of the state the bene.ftciary wuld not obtain the money at all. The argument is not sound. The benetkiary is not a debtor all. He sustains no relation of liabii to the bondholder either primary or secondary. The state recognizes the beneficiary as in the nature of a creditor to whom the state proposes to pay its recognized obligation. The state becomes debtor to the bondholder under a primary liabiity and not a secondary one. Neither legislator nor voter is beguiled by any delusion that the bonds will be paid by some one else as a primary debtor. Id. at 533.

A broader construction of the credit clause-that “lending of credit” also occurs when the government incurs primary indebtedness-is found in several other casesS For Qecisionseoochdingthat‘losoofcrcdit”orasimilar phraseiachrdcs

aaassampuon

efprimary Uahility aswellasanaswmptioa ofsecondary

liability include Ihefollowing:

V&ram ’We/j&e

BomfY. Jordan, 208P.284(Cal. 1922); NewYork

Y.Westchester

CovnryNational

Bank, 132

N.E.241,245

(N.Y. 1921) (issuaace

ofdatebonds

andgiftofpmaeds torailmadcorporation would beunmnstitutional gift

p. 2093The Honorable Tii Curry - Page 10 @M-382)

example, in Jarrolt v. Ci@ of Moberly, 103 U.S. 580 (ISSO), the Supreme Court construed a credit clause as prohibiting a municipal corporation in Missouri from issuing public bonds and using the proceeds for the purchase of a machine shop to give to a railroad. Id. at 585. In spite of the fact that the municipal corporation would obligate itself primarily, not secondarily, on the bonds and thus would not fall within the letter of the prohibition against lending credit, the Court held that the prohibition should be wnstrued %o as to give it effective operation and suppress the mischief at which it was aimed.” .Zd.at 586. The Court explained:

Both modes of using the bonds of the municipality are equally a use of its credit, the diEbrence being that the one is a direct and the other
an indirect way of employing the credit of the municipality for the benefit of the railway company. It would be a narrow and strict construction of the wnstitutional provision to hold that it prohibited the creation of indebtedness by a municipality by a direct use of its credit for the railway company, and yet permitted such creation by the indirect use of it for the same purpose. Id. at 585-86.

In spite of this lack of wnsensus on the meaning of a “loan of credit,” all of the foregoing authorities implicitly agree that a lending of credit requires the assumption of
some kind of financial liability by the government. Other cases are explicit on this point.6

For example, the Supreme Court of Idaho stated in Engelking v. Investment Board, 458 P.2d 213 (1969), that the word “credit” in the Idaho Constitution’s prohibition against the giving or loaning of the state’s credit “implies the imposition of
some new financial liability upon the State which in effect results in the creation of State @oome4econtiaoed) of state ’seredit);willam Deering & Co. v. Peterson, 77 N.W. 568, X59-70@inn. 1898)(because of eredit chose, state “cannot bormw money onits ownbonds

and tko loan

the money”);

Garlandv. Board ofRevenue, 6So.402,403 (Ala. 1889)

(credit clan prohibits

*soyaid,

byissuing

bonds orotherwise,

by which aoeeonkvliabilihr

isincur&. furnished

bvthe nunicititis named

toorivate

enterorkes”~.

%ecisions conchding

thst a lending

ofcredit requires the assumption

ofborne kind offinancial liability bythegovmuncn

t in&de thefollowing:Wilmington Medical Center Y. Bradford, 382 A.2d 1338,1348-49

(Del. 1978)

(there isnopledge

ofstate credit witboot incurring

ofpoblic

legalliability goaranteuibystate

taxingpower);FosterY.NorthCarolinaMedico1Core Commission, 195 S.E.Zd 517, 525(NC. 1973);

Allen v. Tooele Cows& 445 P.2d994,995(Utah 1968)(county wooldnol“lend

its credit” toanotherunless wumy might in someeventuality

become indebted); UhlsY. Wyoming ex nl. CityofCheyenne, 429P.2d74.86(Wyo. 1%7)(city didnot violate wnstitotion

bylending

orgiving

its credit whereno debt againstc&ywascontracted). See alsoXmiustriol Dev. Auth. Y. Eastern Kenh@v Region01Planning Comm‘II,332 S.W.2d 274, 278 (KY. 19Kl)(loanof state funds is notloaoofstate credit; sfatebcancs debtorwhen it loansitscredit); F&bank v. Stratton, 152N.E.2d569,573@I. 1958)(same);

AlmondY. Day, 91S.E.Zd 660,667(Va. 19%) (credit clause wnstroed

as applying

to tmmaetions

in whichstale

inconindebtedoem). ConhaOhiov. Bmnd, 197 N.E.2d 328, 333 (Ohio 1964).

p. 2094TheHonorable Tii Curry - Page 11 (DM-382)

debt for the bene& of private enterprises.” Id. at 218. Thus, the court held, the investment of existing fimds ofthe state in bonds, notes, and stock of private corporations did not violate the credit clause, “for no new State debts are created by such action.” Id.

Another case applying the rule that a lending of credit requires the assumption of
some kind oftlnancial liabiity by the government is the Florida Supreme Court decision of Nohrr v. Brevwd CountyErliuztionaZFacilities Authwiry, 247 So. 2d 304, 309 (1971). There the court upheld, against a credit-clause challenge, a state law %uthoriz[mg] a board of wunty wmmissioners to establish a county educational facilities authority to issue revenue bonds for tbtancing the wnstruction of tbcilities for private higher educational institutions inthe wunty,” id. at 307. Having noted the statutory provision stating that the bonds “shall not be deemed to wnstitute a debt or liabiity of the state or of any such county, but Shall be payable solely from the tbnds herein provided therefor from revenues,” id. at 307-08, the wurt applied the same rule as did the Idaho wurt in IZngelkingThe word ‘credit,’ as used in [the credit clause of Florida’s

wnstitution], implies the imposition of some new tinancial liabiity upon the State or a political subdivision which in effect results in the creation of a State or political subdivision debt for the benefit of private enterprises.
In order to have a gift, loan or use of public credit, the public must be either directly or contingently liable to pay something to somebody. Neither the tidl faith and credit nor the taxing power of the State of Florida or of any political subdivision thereof is pledged to the payment of the principal of, or the interest on, these revenue bonds. The purchasers of the revenue bonds may not look to any legal or moral obligation on the part ofthe state, county, or authority to pay any portion ofthe bonds. Id. at 309

We have found no precedent for the construction of a credit clause as meaning that
a state or a political subdivision lends its credit when it merely extends credit to another.’

‘We did,however,

findonecasethatdiscussestheposubilitythataraleoncrrditin~ cihwastanosmight

wnstitnte

a prohibited

lcanofcredit.Thatcase, Woehington

ex ret. 0 ‘ConnellY. Public Utility

Dishict No. I, 469 P.2d922(Wash.App. 1970). rev’d on othergnwndr, 484 PAI 393 (Wash. 1971).

discussed the following passagefmm Wadhgton Natwol Gas Co. Y. Public Utiliv Disbicr No. I, 459 P.2d633(Wash. 1%9)(enbane):TIE municipality, wethink,

may, wnsislent

with ~cicntmanagrmnqscllarddelivcrclcctricalwrgytoitsci~aadcustomersonsborttamcndit
as longas thispmcedum doesnotaliw thecustomer to wnv5t thiswncession intoa profitable hypothcfaton ofe&it withthirdpersons.” Id. at639, quotedin Wcrrhington exnl. O*Connell.469 P.2d at927. Theawl explained its m&Sanding that

“[a] ‘pmtitable

hypokcation

ofcredit’

wnnotea

tous thewnceptofarisk4akinguseofano&erkgoodname. Ifa -oncanbeemwuIcd intoaprotitable hypo&cation

ofcmdicitwouldseem tofollow

that anunprofitable

hypothecation

ofthat credit might also mmdt from the wncession

granted.”

469 P.2d at927-28.

Youdonot

suggest any draunstaacathat

p. 2095TheHonorabieTimCurry - Page 12 @M-382)

Because the great weight of authority Tom other states uniformly construes similar credit clauses as &erring to the assumption of some kind of6nanciai liability by the government, we believe the Texas courts would do I&wise and would hold that a loan or gitl of credit does not occur when the State or a political subdivision merely becomes a creditor by selling goods or services for deferred payment. The situation about which you inquire, taxation ofthe fee for service ofprocess pursuant to Texas Rule of Civil Procedure 17 and delayed wllection of the fee pursuant to Texas Rule of Civil Procedure 149. does not involve a county’s assumption of any liabiity but rather involves only the county’s sale of
a service to another for deferred payment. In such a tmwaction the wunty becomes a creditor, not a debtor. We therefore conclude that taxation of the fee for service of process pursuant to rule 17 and delayed collection of the fee pursuant to rule 149 do not constitute a kran of a county’s credit in violation of article XI, section 3, nor does authorization of such a practice by the Texas Supreme Court pursuant to legislative authority mean that the legislature has authorized a “wunty.

.to lend its credit

. . in aid o$ or to any individual, association or corporation” in violation of article III, section 52.

As we noted above, in the past this office has assumed that a mere extension of credit by deferred collection of fees is a “giving or lending~ of the credit ofthe State” for purposes of wnstitution article IQ section 50; a “lend[ing ofj its credit” by a wunty for purposes of article III, section 52; or a “loan [ofl its credit” by a county for purposes of article XI, section 3. This assumption dates back at least to 1937, when, in Attorney Oeneral Opiion No. 2996, this 05ce opined that the sale of certain tax stamps for payment by a draft payable at a iirture date “would amount to the State doing a credit business” in violation of the credit clause of article III, section 50, and that a sale of the stamps on wnsigmnent also “would be lending the credit of the State.” Attorney General Opiion No. 2996, 1936-1938 Tex. Att’y Gen. Biennial Rep. 43. The opinion cites no authority for this proposition.

In Attorney General Opinion MW461, this 051~. concluded that section 50 prohibits a state agency from deferring until the end of each month the collection of charges for copies of public records. With no discussion of what actually constitutes the lending of credit of the State’s credit,’ the attorney general concluded, “To defer the payments of charges for copies of public records by means of a monthly big of the

voomotcoantiaucd) WTJuld indie that

anyone isengaging

inrisk-taking

khaviorbad 0”dofcmdpaymntforservice of proass.Qlc opinion quotes a statcmmt

in an informal

ktu opinion

numhcmd

R-2358(1951),in which,accmdingto the opinion,an ass&ant attorneygcmal opinedthat “‘ourlawswntemplatc,it sum, thatStatecd3lces

orentaprks, themanagement ofwhichrequires

thecolleaionofpublic iimds or &argcs,shld&opemtedonacashbasis.’” AttomcyGaaalOpinionMW-461(1982)at2. The opinion doa notspecify

whether themention

of“our lam”quoted

fromtheinformalletteropinionis 8 lefsmKetoanyofthccrulitclaosesinthcamstitution Wehavebmunabletolocateawpyofthe informal leltuopinion.

p. 2096The Honorable Tii Curry - Page 13 @M-382)

accumulated charges isjust such an extension ofthe state’s credit which is wnstitutionally proscribed.” Attorney General Opiion MW-461 (1982) at 3.

In Attorney General Opiion JM-533, this office was asked whether a county clerk may maintain credit accounts for fees due. The attorney general noted that the phrases

“lend its credit,” as found in article III, section 52; “loan its credit,” as found in article XI, section 3; and “lending of the credit,” as found in article III, section 50, “appear to have the same meaning.” Attorney General Opinion JM-533 (1986) at 3. The attorney general then quoted the following passage from page 225 of George D. Braden’s l71eConriifution oftheState of Texas: AnAnnotkzted and ComparativeAnalysis (1977): Section 50 states that the legi&ture may not “give” the credit of the state to anybody, “lend” the credit of the state to anybody, or

“pledge*’the credit of the state for anybody.

. This is an involved and somewhat imprecise way of saying that the state may not aid anybody by lending him money; bv nrovidine him land. eoods. or SeMces on credt

I; or by guaranteeing payment to a third party who aids anybody by lending him money or providing him land, goods, or services on credit. Id. at 2 (emphasis added). This office also cited an 1889 Texas Supreme Court case, C&y of Ckburue v. Brown, 11 S.W. 404, as holding that a city would “loan its credit” in violation of article XI, section 3, by accepting a proposed corporation’s bonds in payment for its transfer of its waterworks to the corporation. The attorney general concluded:

In the light of the Citv of Clebume holding, we believe the proscriptions of article llI, section 52, and article XI, section 3, mean that county officers are not authorized - and UulIlot be authorized - to delivercounty services to individuals, associations or wrporations
on credit unless some other provision ofthe wnstitution authorizes it [sic] to do so. Attorney General Opinion JM-533 (1986) at 3. We note that the emphasized language quoted above 6om l’?reConstitution ofthe State of Texas cites no authority and that we iind no other case citing City ofClebume as authority for the rule stated as the holding of that case in Attorney General Opinion JM-533.9

prat opinionin Cityo/Cle6umc, WC believe,involvedmomthan a mereextensicnd craitt. Theeontrollii tkctthecourtnotedineonehlding thatthetlansferofthecity’swaterworkstoaproposed mrporation~dhaveamountedtonothingmorrthanaloanbytbtdtyofClcburneafiucrrdittothe proposed corporation”

wasthat“[t]hcagrcrmententcrcdintodoesnotdetlnethepavers, nor statethe amountofcapital,oftheproposed corporation.”Ci@ o/C/ebume, 11SW. at405. Thus,thepmposcd emporationmighthaveheenundercapitalized andemsqocntly mighthaw d&&cd inpaymentofits operating eds, leavingthecitywiththehnrdenofpayingoffthecorporation’s creditors.

p. 2097The Honorable Tii Curry - Page 14 @M-382)

In Attom General Opinion JM-749, this office was asked whether a wunty’s acceptance of credit cards as payment of fees wnstitutes an unwnstitutionsl “lending of credit.” Attorney Genera) Opiion JM-749 (1987) at 2. In that opinion the attorney general noted with approval the conclusion of Attorney Genera) Opinion JM-533 (erroneously cited as Attorney General Opinion JM-522 (1986)) “that article III, section 52, clearly prohibits the legislature from authorizing county officers to deliver county services on credit.” Id. at 2. The attorney genera) concluded that “[n]o ‘knding of credit’ by the county occurs” when payment is made by credit card, for a third-party lender-not the wunty-acts as a creditor in such a tmnsaction and the wunty merely stands in the position of a merchant. Id.
Pii, in Attorney General Opiion JM-1229, a consolidation of two opinion requests, the attorney general was asked whether a county may sell gas and Abelproducts
on a thirty-day account with monthly big for accumulated charges and whether the State Law Library must receive payment before sending requested photocopied materials by next-day delivery or t&hnile transmission, as opposed to enclosing a bii for charges along with the copies. Attorney General Opiion JM-1229 (1990) at 2. The attorney general assumed the wrrectness of the statement in Attorney General Opiion MW-461 that ‘“[t]o defer the payments of charges for copies of public records by means of a monthly big of the accumulated charges isjust such an extension of the state’s credit which is wnstitutionally proscribed.“’ Attorney General Opiion JM-1229 (1990) at 2 (quoting Attorney General Opinion MW-461 (1982) at 2). The attorney general then concluded that a loan of credit does not violate article III, section 52, or article XI, section 3, ifit %ccomplishes a public purpose and is accompanied by controls that ensure the use ofpublic credit for a public purpose.” Id. at 8.

In light of our conclusion above that a mere extension of credit by deferred collection of fees in a sale of goods or services does not violate the cradit clauses of the wnstitution, we disapprove of any statement or implication to the contrary in Attorney Gend Opinions No. 2996, MW-461, JM-533, JM-749, and JM-1229, and any other prior opinions of this office. We caution that an extension of credit, in some thctual contexts, may constitute a loan of credit or may implicate other wnstitutional or staMory prohibitions.

p. 2098TheHonorableTimCurry - Page 15



### SUMMARY
A district clerk is not authorized to require an advance deposit offeesforeaviwofcitationinacase~inthew~inwhich thesherifforwnstableistoaerveprowss. Therequirementsinthe rulesofcivilprocedunthatfeesforsaviceofprocessbyash~or wnstable be taxed as costs and that such costs be collected by execution only afterjudgment do not constitute a lending of credit or a grant of a thing ofvalue in violation ofthe Texas Constitution. We disapprove of Attorney General Opinions No. 2996, MW-461, JM-533, JM-749, and JM-1229, and any other prior opinions of this offiwinsofar(Istheystateorimplythatamrecnditsaleofgoods
or services by the State or one of its political subdivisions violates the credit clauses ofthe constitution.

DAN MORALES Attorney General of Texas
JORGE VEGA Fii Assistant Attorney General
SARAH J. SHIRLEY Chair, Opiion Committee Prepared by James B. Pinson Assistant Attorney General

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