The Attorney General of Texas 

December 18, 1978 

JOHN L. HILL 

Attorney General 

Honorable Marion E. Williams, Jr. 

Bee County Attorney 

Bee County Courthouse 

Beeville, Texas 78102 

Opinion No. H-12 8 8 

Re: Authority of the county to 

pay a CETA prime contractor 

when it is subsequently discovered that the activities for 

which reimbursement were made 

were unauthorized. 

Dear Mr. Williams: 

You describe the facts as follows: Bee County, through the Bee County 

Community Action Agency, has a contract for the receipt of federal funds 

under the Comprehensive Employment and Training Act (CETA), 29 U.S.C. §§ 

801-822, with the Coastal Bend Consortium which acts as the prime sponsor. 

Bee County used a portion of these funds to pay for the repairs on someone’s 

home who, it was later discovered, was not an eligible recipient of CETA 

funds. Under the contract with the consortium, any misappropriation of funds 

by the county renders the county, rather than the consortium, liable to pay 

the amount misappropriated. You ask whether the county has authority to 

pay this amount in light of article 3, section 52 of the Texas Constitution. 

You also ask if the county auditor or county commissioners can be held 

personally liable for the misappropriation of the funds. We note that the 

question does not involve any payment to the ineligible individual, but instead 

relates to the liability of one governmental body to another. 

Article 3, section 52 provides, in pertinent part: 

The Legislature shall have no power to authorize any 

county. . . to lend its credit or grant public money or 

thing of value in aid of, or to any individual, 

association or corporation whatsoever. . . . 

Payment of a valid claim by a county is not gratuitous and does not 

violate article 3, section 52. Harris County v. Dowlearn, 489 S.W.2d 140 (Tex. 

Civ. App. - Houston [14th Dist.] 1972, writ ref’d n.r.e.) (compensation of 

individual pursuant to Texas Tort Claims Act does not violate article 3, 

section 52); s Angelina County v. Kent, 374 S.W.2d 313 (Tex. Civ. App. - 

P. 5082 
Honorable Marion E. Williams, Jr. - Page 2 (~-12881 

Beaumont 1963, no writ) (county must pay architect in accordance with contract); 

Wyatt Metal & Boiler Works v. Fannin County, 111 S.W.2d 787 (Tex. Civ. App. - 

Texarkana 1937, writ dism’d) (county may be held liable on theory of unjust 

enrichment); Attorney General Opinion H-1186 (19781 (state agencies may enter into 

conciliation agreements providing back wages to persons who assert a valid 

employment discrimination claim under the Civil Rights Act of 1964). 

Bee County was legally authorized to enter into the contract under which it 

was responsible for the proper disbursement of CETA funds. Attorney General 

Opinion H-1212 (1978). You state that under the facts the county is clearly liable. 

Such liability is necessary for the county to be authorized to pay the claim. 

Attorney General Opinion V-653 (1948). We cannot determine in the opinion process 

whether the county is in fact liable, and we do not understand you to be asking us 

to do so. We do believe, however, that if the county is liable under the terms of a 

valid contract, then article 3, section 52 does not bar the payment of the county’s 

obligation. 

Your second question concerns whether the county auditor or county 

commissioners can be held personally liable for misappropriation of county funds. 

Both the county auditor and the commissioners court are responsible for the 

proper use of CETA funds. Attorney General Opinion H-1212 (1978). However, the 

general rule is that public officers are not liable when acting within the scope of 

their duties in a matter that involves the exercise of discretion or judgment unless 

they acted willfully, corruptly, maliciously or in bad faith. Campbell v. Jones, 264 

S.W.2d 425 (Tex. 1954); ,’ 489 S.W.2d 706 (Tex. 

Civ. App. - Corpus Chr , 267 S.W.2d 187 

(Tex. Civ. App. - Austin 1954, writ ref’d n.r.e.1; Welch v. Kent, 153 S.W.2d 284 

(Tex. Civ. App. - Beaumont 1941, no writ); Ross v. Gonzales, 29 S.W.2d 437 (Tex. 

Civ. App. - San Antonio 1930, writ dism’d). See generally Tex. Jur.2d Municipal 

Corporations S 225, at 602-E. It is possible that a public officer might be held 

liable on a lesser standard if the duty was purely ministerial. See Hartford 

Accident & Indemnity Co. v. Templeman, 18 S.W.2d 936 (Tex. Civ. APP. - 

Galveston 1929, no writ). Whether the county auditor or county commissioners 

could be held personally liable in a particular instance would depend on factual 

determinations that cannot be resolved in the opinion process. 

SUMMARY 

Article 3, section 52 of the Texas Constitution does not bar 

payment by a county of a valid contract claim. Whether the 

county auditor or county commissioners could be held 

personally liable for misappropriated CETA funds would 

depend on the resolution of certain factual issues. 

P. 5083 
Honorable Marion E. Williams, Jr. - Page 3 (H-1288) 

Yery t,ruly yo urs, 

&L<L2G I 

APPROVED: 

,> ’ Attorney General of Texas 

,’ l, 

DAVID y.. YNDALL, First,-Assistant 

5’ 

&..;;~ /’ $f’ 

L 

C. ROBERT HEAT& Chairman 

Opinion Committee 

jsn 

P. 5084