# THE AYITORNEP GENERAL OFTEXAS Amwm~. **T.!SLAS 78** **’ 711** 

October 15, 1973
The Honorable Jimmie D. Oglesby County Attorney Permian Building 317West Texas Midland, Texas 78701

Dear Mr. Oglesby: Opinion No. H- 127 Re: Use ofFederal Revenue Sharing Funds to contract with aprivate non-profit corporation for the creation and maintenance of a rdcreation center for the indigent aged You have asked our opinion as towhether a county may use federal revenue sharing funds for purposes authorized under the Federal statute
“but not authorized under the State Constitution or statutes. ” You state that thecommissioners court has been approached by a group of interested citizens who have asked that federal revenue sharing funds be contributed toward the creation and maintenance ,ofa recreation center for the aged. The center will be operated by aprivate non-profit corporation which is to charge small annual dues to those who can afford to pay and will provide social and recreational services to all senior citizens, whether they be indigent or not. The facts would seem to raise two questions: (1)Is the suggested use one which would be authorized under the Federal law and (2) Is it in fact one which is authorized under the State constitution and statutes. The State and Local Fiscal Assistance Act of 1972 (31 U.S.C., 51221) authorizes the county, as a local government, to,use revenue sharing funds to create, maintain and operate a recreation center for the aged. Section 1222 provides:

“(a) Ingeneral -- Funds received by units of

local government under this subchapter may be used only for priority expenditures. For purposes ofthis chapter, the term ‘priority expenditures’ means only--

p. 613The Honorable Jimmie D. Oglesby, page 2 (H-127)

“(1) ordinary and necessary maintenance and operating expenses for -- I’
.. . *

“(E) recreation . . . .

.. **., .**  **. .**  **.** l’(C) social services for the poor or aged.
. . .I’ The rules and regulations published by the Office of Revenue Sharing inthe Federal Register of Tuesday, April 10. 1973 (Volume 38, No. 68,: pp. 9132-9143), likewise approve the use of revenue sharing funds for such purposes (31 C.F. R., $51.31), and th 1 e egislative history ofthe act is replete with references to the basic purpose ofthe legislation as providing “additional help for the states and localities in aform which will give them greater flexibility inthe use of the funds.
. . .‘I (Senate Report No. 92-1050, August 16, 1972). Pursuant to The State and Local Fiscal Assietance Act, the Secretary ofthe Treasury has issued a regulation [31C.**F.** R. $51.40(c)] providing that a government which receives entitlement funde under the Act. shall provide for the expenditure ofthose funds inaccordance with the law and procedures applicable tothe expenditure ofits own revenues. Funds received under the State and Local Fiscal Assistance Act may notbe used for apurpose not authorized by that Act or by the Constitution and statutes of Texas. However, it is our opinion that the creation and maintenance ofa recreation center for **the**aged may be authorized under state law. We recognize that the county and its governing body, the commissioners court, can exercise only such power as the Constitution and statutes ofthe State ofTexas have specifically conferred upon itand that the commissioners court does not have any general authority over county business. Canales v, Laughlin, 214S.W. 2d 451, (Tex. 1948); Clark v. Finley, 54 S.W. 343, 347 (Tex. 1889); Article 5, §18. Texas Constitution.

p. 614The Honorable Jimmie D. Oglesby, page 3 (H-127)

The general grant ofpowers to the commissioners courts is found inArticle 2351, Vernon’s Texas Civil Statutes. Itdoes not authorize the construction or maintenance of recreational facilities per se. Itdoes authorize the commissioners to “provide and keep
. . . all necessary public buildings, ” and directs them to “provide for the support ofpaupers. ” We find authorization inArticle 1015c-1, V. T. C. S., which, after defining a governing body as including a county commissioners court, provides

“Sec. 3. Any government unit may establish,

provide, acquire; maintain, construct, equip, operate, and supervise recreational facilities and programs. . . .‘I The Act specifically provides that the costs and expenses of carrying outthe provisions quoted above may be paid from the general revenues of the county or from other revenue, including grants, and authorizes joint action by two or Moore governmental units inthe maintenance ofthe facility. This has been held to authorize a county, for instance, to establish and maintain apublic golf course onland owned by a city. Attorney General Opinion M-804 (1971). Itis our opinion, therefore, that the county may, itself, construct andmaintain a recreational facility for the use ofthe public and primarily for the use ofthe aged, under reasonable regulations. Itmay use federal revenue sharing funds for these purposes. The only remaining question is whether the Constitution or statutes prohibit a county from achieving these purposes through an agreement with aprivate non-profit corporation. Section 52 ofArticle 3ofthe Constitution of Texas provides in subsection (3): “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 ofthe State to lend its credit or to grant

p. 615The Honorable Jimmie D. Oglesby. Page 4 (H-127)
public money or anything ofvalue inaid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company. ” The current construction ofthis provision,is that it does not prohibit the Legislature from authorizing a county, city or other political corporation or subdivision to spend its funds with private corporations for the achievement ofpublic purposes, See, for example, State v. City ofAustin, 331S.W. 2d 737 (Tex. 1960) and Bullock v. Calvert, 480 S.W. 2d 367 (Tex. 1972). Itis not unusual for political subdivisions to contract with private corporations to perform services or functions which the governmental unitmight have provided itself. For instance, inAttorney General Opinion C-246 (1964), itwas held, after avery thorough discussion ofthe law, that a commissioners court could contract with aprivate entity for the care of indigent aged in aprivate facility. InAttorney General Opinion C-334 (1964), itwas held that ahospital district could pay private hospitals for the care of indigent patients. InAttorney General Opinion M-843 (1971). itwas held that Potter County could contract with a‘private non-profit institution for the care and supervision ofjuvenile delinquents. Other examples might be cited butwe deem the foregoing amply sufficient to support our conclusion that a county may contract with aprivate non-profit corporation for the purpose ofcreating and maintaining a recreational center designed for aged persons under the same terms and conditions that the county itself could create a.nd maintain such a center. SUMMARY A county ‘may accept and use Federal revenue sharing funds to contract with aprivate non-profit corporation to construct, operate and maintain a recreationalfacility designed primarily for the aged.



# I/ Attorney General of Texas

p. 616The Honorable Jimmie D. Oglesby, page 5 (H-127)

APPROVED:

p. 617