DAN MORALES 

Al-rORNEY GENERAL 

QIXfice of tfy 2Wmwp 

&ate of Qexae 

January 19,1995 

General 

Honorable Gerald Alan Joy 

Potter County Auditor 

601 South Taylor 

Amarillo, Texas 79101 

Opinion No. DM-3 17 

Re: Whether a county may pay travel 

expenses of an applicant for the position of 

county forensic pathologist (RQ-712) 

Dear Mr. Joy: 

You ask whether the commissioners court of Potter County is authorized to 

“spend public funds” to pay for the transportation and related travel srpenses of an 

applicant for the position of forensic pathologist for the purpose of traveling to be 

interviewed. You explain the situation as follows: 

Since 1991 the County has employed a forensic pathologist to 

perform autopsies in questionable deaths. . . . The last one resigned 

effective March 31,1994. . Prior to and since the last resignation, 

the County Judge and the Commissioners have contacted and been 

contacted by a number of candidates for the position. In April, the 

County Judge, in a good faith effort to hold down County expenses, 

arranged with a local travel agency to have a plane ticket delivered to 

one of the candidates with the expectation that the County would pay 

for it. He knew that it would be cheaper to fly the doctor up 

here. than for a judge and another official to fly down them for an 

interview. 

We understand your query to raise the question of whether article IR, section 52 of the 

Texas Constitution precludes the commissioners court from spending public tbnds to pay 

the travel expenses of a candidate for a county position. We conclude that under certain 

circumstances such an expenditure is not prohibited. 

We begin our analysis by determining the scope of authority with which the 

commissioners court is vested. Commissioners courts may exercise only such powers as 

the constitution or the statutes have specifically conferred upon them. Gmules v. 

Laughlin, 214 S.W.2d 451 (Tex. 1948); Starr Cotmy v. (herra, 297 S.W.2d 379 (Tex. 

Civ. App.-San Antonio 1956, no writ). Article V, section 18(b) of the Texas Constitution establishes the commissioners court and provides in pertinent part that 

[t]he County Commissioners . shall exercise such powers and 

jurisdiction over all county business, as is conferred by this 

Constitution and the laws of the State, or as may be hereafter 

prescribed. 

p. 1682 
Honorable Gerald Alan Joy - Page 2 (DM-317) 

While the commissioners court is statutorily empowered to act only where expressly 

authorized, the courts of this state have allowed the exercise of broad authority, express or 

implied, nexssary to achieve specitic goals authorized by state Jaw. 35 DAVID BROOKS, 

COUNTY AND SPECIAL DISTIUCT LAW 5 5.11 (Texas Practice 1989); see Glenn v. Da&s 

Cam@ Bois D’Arc Island Levee Dist., 275 S.W. 137 (Tex. Civ. App.-Dallas 1923), 

reh’ggranted on other groun&, 282 S.W. 339 (1926), rev’d on other grounk, 288 SW. 

165 (Tex. Comm’n App. 1926, jtufgm’r adopfed) (defining the scope of the term “county 

business”)t; Rodgers v. County of Taylor, 368 S.W.2d 794 (kx. CN. App.-Eastland 

1%3, writ ref’d n.r.e.). See generally Pritchard & Abott v. McKenna~ 350 S.W.2d 333 

(Tar. 1961) (implied authority to contract with private appraisal Srm upheld). 

Article 49.25 of the Code of Criminal Procedure provides for the office of county 

medical examiner. The commissioners court is vested with the express authority to 

establishandmaintaintheofficeofmedimllexaminer. Furthermore, the court “shall 

appoint the medical examiner [who must be a physician], who shah serve at the pleasure of 

the commissioners court.” Code Grim. Pm. art. 49.25 5s 1, 2; 36 BROOKS, supra, 

$26.9. Although the commissioners court is vested only with the express authority to 

establish and appoint to such office, we believe that it is logical to presume that the court 

is vested witb certain implied authority necessary to achieve this specific goal, i.e., the 

authority to interview quahtied applicants for the position of medical examine-r. 

We now consider whether the authority to interview and appoint includes the 

authority to pay for the travel expenxs of a candidate for such an appointment. Article 

Ill, section 52 of the Texas Constitution provides in pertinent part: 

pqhe Lagislature shall have no power to authorize any wttnty, city, 

town or other political corporation or subdivision of the State to lend 

its credit or to grant public money or thing of value in aid of, or to 

any individual, assockion or corporation whatsoever. . . 

See also Tex. Const. art. ID, 5s 50, 51. See generaZ@ 1 GEORGE D. BRALEN, TIE 

~~T~NSTITUTION OF THE STATE OF TEXAS: AN ANNUTATED AND COMPARATIVE ANALYSIS 

232 (1977) (explaining article ID, sections 51 and 52 of Texas Constitution). This 

provision is mandatory. Texas & N.OR. Co. v. Galwston Comfy, 161 S.W.2d 530 (Tex. 

Glenn v. Dalhs County Bois D!4rc IslandLeer Dist., 215 S.W. 131,145. 

p. 1683 
Honorable Gerald Alan Joy - Page 3 (DM-3 17) 

Civ. App.-Galveston 1942), af’d, 169 S.W.2d 713 (Tar. 1934). Its purpose is to 

prevent the making of a grant, loan, or application as a mete charity or gratuity, however, 

this section does not invalidate an expenditure that incidentally benefits a private interest if 

it is made for the direct accomplishment of a legitimate public purpose. Brawria Comfy 

v. Peny, 537 S.W.2d 89, 90-91 (Tex. Civ. App.-Houston [lst Dist.] 1976, no writ); 

Harris county v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App.-Houston [14th Dist] 1972, 

writ ref’d n.r.e.); see Attorney Generai Opinions JM-1229, at 3-5, JM-1209, at 1, 

JM-1199, at 1 (1990); 1 BRADEN, supra, at 233. 

We note that no fixed rule delineates exactly what constitutes a “public purpose.” 

See Davis v. City of Taylor, 67 S.Wfd 1033, 1034 (Tex. 1934) (quoting 6 MCQUUL.EN, 

~NM~NI~IPAL CORFORA~ONS 5 2532, at 292 (3d ed. 1991) (stating that “what is a public 

purpose cannot be answered by any precise definition tiuther than to state that if an object 

is beneficial to the inhabitants and directly connected with the local government it will be 

considered a public purpose”). The determination that a public purpose is being served by 

an expenditure of finds or an extension of credit rests in the first instance with the 

governmental entity’s discretion, subject to judicial review. Attorney General Qpinion 

N-1229 at 6-7. In detenninin g whether a particular grant of public funds or extension of 

credit serves a legitimate public purpose, the governmental body must also ensure that 

there are sutlkient controls over such expenditure to tixther the stated purpose. Attorney 

General QpiionDM-256 (1993) at 3. 

In Attorney’ General Qpiion M-223 (1%8), this office considered whether a 

county hospital district was authorized to spend public funds to pay for the travel expemes 

assockted with the recruitment and interviewing of prospective employees. It was concluded that while the hospital district was statutorily authorized to make expenditures on 

behalf of its efforts to recruit personnel, there was no such authority to pay the travel 

expense of prospective employees. Id. at 2. We now depart from our former decision, 

which we believe was based on an overly rigid interpretation of article IlI, section 52, and 

conclude that in certain circumstan ces the commissioners court is vested witb the 

authority to pay the travel and related expenses of a prospective employee. Although such 

an individual is a private citizen rather than a public setvrmt of the wunty or agent thereof, 

such an expenditure may constitute “county business” if it tirrthers the county’s public 

purpose of making the most eflicient use of public funds during the in&view process. 

Thus, in certain kxmstances the payment of any and ail travel expemes of an applicant 

for the position of county forensic pathologist does not wnstitute the granting of public 

money or thing of value to an individual in violation of article ID, section 52 of the Texas 

Constitution.s To the extent that Attorney General Qpiion M-223 is in wntlict with this 

decision, it is overruled. 

p. 1684 
Honorable Gerald Alan Joy - Page 4 (DM-3 17) 

SUMMARY 

Article III, se&ion 52 of the Texas Constitution requires that 

expenditures by a wunty be for a public purpose. The determination 

that such purpose is being served by an expenditure of public timds 

or an extension of credit rests with the governmental entity’s 

discretion, subject to judicial review. Jn some cases, article JIJ, 

section 52 may not preclude a county from paying the travel 

expenses of an applicant for the position of wunty forensic 

pathologist. Attorney General Opinion M-223 (1968) is overruled to 

the extent that it wntlicts with this decision. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair. Opiion Committee 

Prepared by Toya C. Cook 

Assistant Attorney General