November 19: 1969

Hon. Burton G. Hackney Commissioner OpinionNo. M-512

State Department of Public Welfare Re: Authority of the State John H. Reagan Building Departmentof Public Austin, Texas Welfare to expendmoney to refurbish a building which is leasedby the county on a long term lease basis and is furnished the Department Dear Mr. Hackney: rent free.

your request for an opinion asks the followingquestion:
"May the Department expend funds for the purpose of refurbishing the interior of a buildingwhich is leasedby a County on a long term leasebasis and furnished to the Department rent free?"
Subdivisions 5 and 7 of Section 4 of Article 695c, Vernon's Civil Statutes, relating to the powers and duties of the State Department of Public Welfare, provide in part as follows:

"(5)Assist other departments, agencies and institutionsof the local State and Federal Governments,when so requested and cooperate with such agencieswhen expedient, in performing services in conformitywith the purposes of this Act; "(7)Establish and provide suchmethod of local administrationas is deemed advisable, and provide such personnel as may be foundnecessary for carrying out in an economicalway the administration of this Act;

. . ."
Section 39 of Article 695c,Vernon's Civil Statutes, provides:

-2&O-Hon. Burton G. Hackney, page 2 M-512)

"Sec. 39. No provision of this Act is intended to release the counties andmunicipalities in this State from the,specificresponsibility which is currentlyborne by those counties and municipalities in support of publicwelfare, child welfare, and relief services. Such fundswhich may hereafterbe appropriatedby the counties and municipalities for those servicesmay be administered through the county or district offices of the State Department, and if so administered, shallbe devoted exclusively to the services in the county or municipalitymaking such appropriation."

In construing the above quoted provisions itwas held in Attorney General's Opinion WW-429 (1958):

"Inview of the provisiona of Article 695c, the State Department of Public Welfare is authorized to enter into agreementswith municipalities and counties for the purposes of carrying out the Welfare Program. It is, therefore, our opinion that the Department of Public Welfare is authorized to make necessary repairs or renovation to office space allocated to the Department by a municipality or county as outlined in the request, and to expend appropriatedmoneys for such purposes." Therefore, the Department may expend funds for the purpos,eof refurbishing the interior of a building upon privately owned landwhich is leasedby the county on a long term lease basis unless such expenditure constitutes a grant of public funds or creditwithin the meaning of Sections 50, 51 or 52 of Article III or Section 6 of Article XVI of the Constitution of Texas.

In Attorney General's Opinion C-511 (1965)itwas held that the provisions of House Bill 43,Acts of the 59th Legislature, Regular Session, 1965, Chapter 196,were unconstitutional insofar as the act authorized the Texas Aeronautics Commission to expend funds for the purposes of improvingairports on leased land. It is stated in Attorney General's Opinion C-511 (1965):

-2&l-Hon. Burton G. Hackney,page 3 (M-512)

"However,the abovementioned opinion and court decisions do not involve the question presentedby your request; that is, the use of public funds for the improvementof privately owned land. It is clear that H.B. 43 quoted above contemplates the possible use of public funds to improve land belonging to individuals,associationsor corporations other thanmunicipal corporations. At the end of the twenty-year lease the improvementson the landwill become the property of the owner of the fee. In our opinion, the term of the leasehas nothing to do with the question of the authorityof the State or municipality to use public funds to improve the land. The statutoryprovisionnow requiring a twenty-year leasemay be amended at~any time to require a one-year or a two-year lease. In any event, the question is the same.”

It is our opinion that the expenditure of funds for the purpose of making necessary repairs and maintenance in order to make the building fit to be used by the Departmentdoes not constitute a grant of publicmoney within themeaning of Sections 50, 51 or 52 of Article III or Section 6 of Article XVI of the Constitution of Texas, for the reason that such expenditure constitutesnecessary expense involved in the occupancy of the buildingby the Department. You are thereforeadvised that the expenditure of funds for the purpose of refurbishingthe building,allocated to the Department of Public Welfare by the county may be made.

SUMMARY

The State Departmentof PublicWelfare is authorized to expend funds for thepurpose of refurbishing the interior of a buildingwhich is leasedby the county on a long term lease basis and is furnished the Departme rent free.

-2&2-Hon. Burton G. Hackney,page 4 (M-512)

Preparedby John Reeves AssistantAttorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman George Kelton,Vice-Chairman Jim Swearingen Fielding Early 2. T. Fortescue Wardlow Lane

MEADE F. GRIFFIN Staff Legal Assistant

NOLA WHITE First Assistant

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