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 comm1ss10ners court 

has authority to expend county funds on holiday 

decorations and county literacy programs 

(RQ-0105-KP) 

Gilmer, Texas 75644 

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., 861S.W.2d861, 863 (Tex. 1993). 

A commissioners court's responsibilities include providing, equipping, and maintaining 

the county courthouse and buildings. TEX. Loe. 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: 

1

See Letter from Honorable Billy W. Byrd, Upshur Cty. Crim. Dist. Att'y, to Office of the Tex. Att'y Gen. 

at I (Apr. 6, 20 I 6), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 
The Honorable Billy W. Byrd - Page 2 (KP-0116) 

(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. Loe. Gov'T CODE § 381.004(b). Subsection (c) authorizes a comm1ss1oners 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 

"[t]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, 

2 A 1940 attorney general opinion answered negatively the question of\yhether 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. 0-2928 (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 38 I .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, § I, 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. Loe. Gov'T CODE § 381.004). 
The Honorable Billy W. Byrd - Page 3 (KP-0116) 

whether a particular program serves a purpose authorized by the statute. See TEX. Loe. 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, 

3The 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. 
The Honorable Billy W. Byrd - Page 4 (KP-0116) 

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. Loe. Gov'T CODE§ 381.004(b)(6), (c)(l), (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 'ti Risk Pool 

4Galloway, 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)). 
The Honorable Billy W. Byrd - Page 5 (KP-0116) 

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). 
The Honorable Billy W. Byrd - Page 6 (KP-0116) 

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. 

JEFFREY C. MATEER 

First Assistant Attorney General 

BRANTLEY STARR 

Deputy First Assistant Attorney General 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

WILLIAM A. HILL 

Very truly yours, 

KEN PAXTON 

Attorney General of Texas 

Assistant Attorney General, Opinion Committee