DAN MORALES

Al-rORNEY GENERAL 

# QIXfice

of tfy 2Wmwp &ate ofQexae 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 asfollows:

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 alocal travel agency to have aplane ticket delivered to one ofthe 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 ajudge 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 isnot 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 inpertinent 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.

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While the commissioners court is statutorily empowered to act only where expressly authorized, the courts ofthis state have allowed the exercise ofbroad authority, express or implied, nexssary to achieve specitic goals authorized by state Jaw. 35 DAVIDBROOKS, COUNTY ANDSPECIAL

DISTIUCT

LAW55.11 (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 onothergroun&, 282 S.W. 339 (1926), rev’d onothergrounk, 288 SW. 165 (Tex. Comm’n App. 1926,jtufgm’r adopfed) (defining the scope ofthe term “county business”)t; Rodgers v. County 

### ofTaylor, 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 Srmupheld).
Article 49.25 ofthe Code of Criminal Procedure provides for the office ofcounty medical examiner. The commissioners court is vested with the express authority to establishandmaintaintheofficeofmedimllexaminer. Furthermore, the court “shall appoint the medical examiner [who mustbe aphysician], who shah serve atthe 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 islogical 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 forthe position ofmedical 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 ofthe Texas Constitution provides inpertinent part:

pqhe Lagislature shall have no power to authorize any wttnty, city, town or other political corporation or subdivision ofthe 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

OFTHE STATE OFTEXAS:

AN**ANNUTATED** ANDCOMPARATIVE ANALYSIS 232 (1977) (explaining article ID, sections 51 and 52 of Texas Constitution). This provision ismandatory. Texas&N.OR. Co. v. Galwston Comfy, 161 S.W.2d 530 (Tex.

Glennv.Dalhs CountyBoisD!4rcIslandLeer Dist.,215 S.W. 131,145.

p. 1683Honorable Gerald Alan Joy - Page 3 (DM-317)

Civ. App.-Galveston 1942), af ’d, 169 S.W.2d 713 (Tar. 1934). Its purpose is to prevent the making ofa grant, loan, or application as amete charity or gratuity, however, this section does not invalidate an expenditure that incidentally benefits aprivate interest if itis made for the direct accomplishment ofalegitimate publicpurpose. 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.” SeeDavis v.City

### of

Taylor, 67 S.Wfd 1033, 1034 (Tex. 1934) (quoting 6MCQUUL.EN, ~NM~NI~IPAL CORFORA~ONS 52532, at 292 (3d ed. 1991) (stating that “what isapublic purpose cannot be answered by any precise definition tiuther than to state that ifan object isbeneficial to the inhabitants and directly connected with the local government it will be considered apublicpurpose”). The determination that apublic purpose isbeing 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 gwhether aparticular grant ofpublic 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 payfor 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. at2. 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 circumstances the commissioners court is vested witb the authority to pay the travel and related expenses ofaprospective employee. Although such an individual isaprivate citizen rather than apublic setvrmtofthe 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 ofvalue to an individual in violation of article ID, section 52 ofthe Texas Constitution.s To the extent that Attorney General Qpiion M-223 isin wntlict with this decision, itisoverruled.

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SUMMARY
Article III, se&ion 52 of the Texas Constitution requires that expenditures by awunty befor 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) isoverruled to the extent that itwntlicts with this decision.

DAN MORALES Attorney General ofTexas
JORGE VEGA Fii Assistant Attorney General
SARAH J. SHIRLEY Chair. Opiion Committee Prepared by Toya C. Cook Assistant Attorney General