### KEN PAXTON ATTORNEY GENERAL OF TEXAS

October 10, 2016

The Honorable Billy W. Byrd OpinionNo. KP-0116 Upshur County Criminal District Attorney 405 North Titus Street Re: Whether a county comm1ss10ners court has authorityto expend countyfunds onholiday decorations and county literacyprograms (RQ-0105-KP) Gilmer, Texas 75644

DearMr. Byrd:
You asktwo questions aboutthe county commissioners court's authorityto 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 SanAntonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). A commissioners court acts as the county's legislativebody 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 courthas "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 dutyto 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. Youreference section 381.004 ofthe Local Government Code, whichprovides inpart:

1 See Letter from Honorable Billy W. Byrd, Upshur Cty. Crim. Dist. Att'y, to Office ofthe Tex. Att'y Gen. at I (Apr. 6, 20I6), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").The Honorable BillyW. Byrd

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(b) To stimulate business and commercial activity in a county, the commissioners court ofthe 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 advertisethe county andits vicinityorconduct 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 ofcounty residents; or (7) for the encouragement, promotion, improvement, and application ofthe arts. TEX. Loe. Gov'T CODE § 381.004(b). Subsection (c) authorizes a comm1ss1oners court to "contract with another entity for the administration ofthe 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). Whetherplacingholidaylighting anddecorationsinandoncountybuildings serves one ormore ofthese purposes will depend ontheparticularfacts and therefore cannotbe 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 inthe first instance, subjecttojudicial review,

2A 1940 attorney general opinion answered negativelythe question of\yhethera commissioners court "may legally expend county funds to match or augment funds raised by the local Chamber ofCommerce or the retail merchants ofTylerto provide lightfixtures necessaryto decoratetheCourtHouse lawn duringthe 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 courtto make the expenditure. Id. at 2. Thus, the opinion does not provide guidance for determining a commissioners court's authority under section 38I.004 of the Local Government Code, which was first enacted in 1989. See Act ofMay 28, 1989, 71st Leg., R.S., ch. 1060, § 3, 1989 Tex. Gen. Laws 4305, 4307, amendedby Act ofJune 1, 1997, 75th Leg., R.S., ch. 1037, § 3, 1997 Tex. Gen. Laws 3875, 3877; Act ofMay 8, 2001, 77th Leg., R.S., ch. 254, § I, 2001 Tex. Gen. Laws 491, 491; Act ofMay 25, 2001, 75th Leg., R.S., ch. 1154, § 1, 2001 Tex. Gen. Laws 2560, 2560; Act ofMay 20, 2003, 78th Leg., R.S., ch. 1275, § 2(109), 2003 Tex. Gen. Laws 4140, 4146; Act ofMay 29, 2015, 84th Leg., R.S., ch. 1236, § 12.003, 2015 Tex. Gen. Laws 4096, 4135 (codified at TEX. Loe. Gov'TCODE § 381.004).The Honorable Billy W. Byrd

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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 whenplacedonpublicpropertyorfunded withpublicfunds. 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 Alleghenyv. Am. Civil Liberties Union, 492 U.S. 573, 593-94 (1989), abrogated onothergroundsby Town of Greece v. Galloway, 134 S. Ct. 1811, 1821 (2014);Lynchv. 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. at671. Thedisplay consistedofcity-owned "decorationstraditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-stripedpoles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds ofcolored lights, [and] a large banner that reads 'SEASONS GREETINGS,"' as well as a nativity scene that had beenpart ofthe display for 40 ormoreyears. Id. Consideringthe display as awhole andthecity'sactualmotivesfor 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 ofadvancing religion. Id. at 681- 85.3 The concurring opinion by Justice O'Connorprovided 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 bejudged 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 ofa menorah placed near a Christmas tree outside ofa county building, but held that a creche located inthe main part ofthe 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. ACLUof Ky., 545 U.S. 844,

3The Court analyzed the inclusion ofthe creche utilizingthethree-parttest 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 entanglementbetween government and religion. Lynch, 465 U.S. at 679-85 (citing lemonv. Kurtzman, 403 U.S. 602 (1971)). In anotherrecent opinion regarding the Establishment Clause, we highlighted some ofthe 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 ofthe test remains in doubt.The Honorable Billy W. Byrd

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866 (2005). The central guiding principle from Lynch and Allegheny is whether any religious component in a holiday display or decorations "has the effect ofendorsing religious beliefs, and the effect ofthe government's use ofreligious 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 essentiallylikethoseto be found inhundreds oftowns orcities across the Nation-oftenonpublic grounds-during the Christmas season," Lynch, 465 U.S. at 671, provided that, when viewed in context, the display as a whole has a secularpurpose, does not have a primary effect ofendorsing religion, and does not foster an excessive entanglement with religion. Finally, the Supreme Court's mostrecent assessment under the Establishment Clause was last term in Galloway, 134 S. Ct. 1811. County of Allegheny had dicta responding to a criticism ofthe 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 theLemon v. Kurtzman test and toward an assessment ofhistory 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 notviolate 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 believetheywouldpose anEstablishmentClauseproblemhere. Id at 671. Andunderthe analysis ofGalloway, the historical, secular use ofholiday lights and decorations and the fact that they are passive andnotcoercive further indicatethata Courtwouldlikely concludethattheydo notviolate the Establishment Clause.
You also askwhether a commissioners court is authorized underTexas 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 forthebenefit ofcountyresidents." TEX. Loe. Gov'TCODE§ 381.004(b)(6), (c)(l), (3).
Even ifstatutorily authorized, however, an expenditure ofcounty funds is subject to the constitutional prohibition against gratuitous donations ofpublic 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 RiskPool

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 ofa figure deified by only one faith or creed. To the contrary, the Court instructed that the content ofthe prayer is not ofconcern tojudges, provided there is no indication that the prayer opportunity has been exploited to proselytize oradvance any one, orto disparage any other, faith orbelief." (citation and quotation marks omitted)).The Honorable Billy W. Byrd

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v. Tex. Workers' Comp. Comm 'n, 74 S.W.3d 377, 383 (Tex. 2002) (explaining that article III, section 52(a)prohibits gratuitouspaymentofpublic 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 BrazosRiverAuth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966). The Texas Supreme Courtenumerated athree-parttestin Texas MunicipalLeaguethatdetermines whether an expenditure serves apublicpurpose,requiringthatthepolitical subdivisionmakingthe expenditure (1) ensure thatthe 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, subjecttojudicialreview, whetheran expenditure, be itforholiday lights and decorations orfor countyliteracyprograms, 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 bythe commissioners court, subjecttojudicialreview).The Honorable Billy W. Byrd

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SUMMARY
Under section 381.004 of the Local Government Code, a commissioners courtmay expendcountyfunds onholidaylights 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 ofthe 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 ofTexas

Assistant Attorney General, Opinion Committee