# The Attorney General of Texas

June 13, 1985 JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12549 Austin, TX. 79711-2549 5121475-2501 Telex 9101974-1397 Telecopier 5121475-0266 Honorable CarlosValdez Nueces County Attomey County Courthouse,Raom 206 78401 Corpus Christi,Tems OpinionNo. JM-324
Re: Uay a county fund an educational campaign to discourage public litter, and related questions

714 Jackson. Suite 700 Dallas. TX. 75202-4506 2141742-0944 Dear Mr. Valdez:
Your office advises that the Nueces County Commissioners Court has been asked to I~artially fund a nonprofit corporationthat conducts 4824 Alberta Ave., Suite 160 area-wide educationalprograms for the abatementof litter and trash, El Paso, TX. 79905-2793 and which on occasion also organizesvolunteers for specific cleanup 9151533.3494 activities, and fox the distribution of litter and refuse recepticles in the area. You ask if the county may legally supply funds to the 1001 Texas. Suite 700 organization for suc:hpurposes. Houston, TX. 77002-3111 713/223-5886

606 Broadway, Suite 312 Lubbock, TX. 79401-3479 8061747-5239

4309 N. Tenth. Suite B McAlle”, TX. 79501-1695 5,2/692-4547 Article III, section 52 of the Texas Constitution reads in pertinentpart:

(a) I$:cept as otherwise provided by this section, ,theLegislature shall have no Tower to authorize any county, city, town or other politica:.corporation or subdivision of the State to lend j.tscredit or to grant public money or thing of value in aid of, or to any individual, associat::on or corporation whatsoever, or to become a stockholder-insuch corporation,association or company. 200 Main Plaza. Suite 400 San Antonio, TX. 78205-2797 512/2254191 The only exceptions "othewise provided" allow the lending of credit for certainpurpomg upon a vote of residents. (A tax to serviceany An Equal OppOrtUnitY/ indebtedness assumed must be established.) Those purposes, however, Affirmative Action Employer are limited to improvement. construction,maintenance or operation of waterways, bodies of water, or roads and turnpikes. None of the exceptionspurport 1:o permitgrants of money; theymake exceptiononly for "lending of credit" in certain situations. And none make exception expressl:rfor purposes of the control or abatement of trash or litter.

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Inasmuch as countiespos~!ss only thosepowers given them by the Constitution of Texas or st,atutesenacted pursuant thereto, Tex. Const. art. V, 918(b); Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). and inasmuch as thz&slature is prohibited by article III. section 52 of theTexas Constj.t.ution from authorizinga county tomake a gratuitous e of funds to a corporation for any purpose, the Nueces County Cormnissioners Court may not make an unrestricted grant to the nonprofit corporationfor thepurpose of funding its operations in whole or in part. See Tex. Const. art. XI, 53; Attorney General Opinions JM-103 (1983);%32!1 (1981);R-1189 (1978);H-397 (1974). Notwithstanding the above, a county is not prevented by article III. section 52 or article XI, section 3, of the Texas Constitution fromusing a nonprofit corpomtion as an instrumentalityto accomplish a proper county purpose so lmng as it retains, by contract or other means, sufficient control of the matter to assure that the public purpose will be served. See .Attomey General Opinion JM-103 (1983). If an educational progracior the abatement of litter and trash cleanup activities, and the placement of receptacles for litter and refuse, is a program which t‘lecounty itselfmight lawfully conduct, it can contract in good fait‘1to pay a nonprofit corporation for its help in accomplishing that purpose. See Attorney General Opinion JM-65 (1983). -

We believe theLitter AbatementAct, coupledwith the declaration in section 1.07 of article 4414b.V.T.C.S., that the

commissioners court of any county shall have the authority to appropriateand expendmoney from the general revenues ojiits county for and in behalf ofpublichealth and sanitationwithin its county, furnishesample authority for the commissionerscourt of Nueces County to conduct a public educaticnal campaign designed to abate littering in the county. The Texas Litter AbatenlentAct, article 4477-9a. V.T.C.S., was enacted in 1981 to takeeffect in 1982. Acts 1981, 67th Leg., ch. 741 at 2710. It makes it a crilneto dispose of trash, junk, garbage, refuse, unsightly matter, or other solid waste on a public highway, right-of-way, or on other prblic or private property without written consent, or into any inland or coastal waters of Texas. And the provision is enforceableby z.

law enforcement o!ificerof this state or of a political subdivision of this state or a health officer of a municipality authorized by law to regulate matters of sanitation and public health.
. . .

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V.T.C.S. art. 4477-9a. $2.Ol(ii). Another section of art:;cle4477-9a makes it illegal to dump untreated or unprocessed litter or refuse within three hundred yards of a state highway, even if At is done by a municipal corporation or by the owner of the land,or tlysomeonewith the owner's consent. Id. $2.04(c). A county or distr1c.t attorneymay bring suit to preventx restrain a violation of the neiction. Id. 52.04(g). In our opinion, theseprovisions clearly implypower incounty officials to discourage littering and, in fact, make it the duty of the county to prevent littering. The possibility of a ntbxusbetween public health and litter, trash, refuse, rubbish, junk 'KCgarbage is not doubted. See Attorney General Opinions JM-65 (1983);H-1280 (1978). Cf. Pricey City of Junction, 711 F.2d 582 (5th ~Cir.1983). We believe, therefore -- particularly if the commissLoners court finds as a fact that a campaign against litter would prevent a deterioration of public health, or serve to improve il.-- that the expenditureof county funds for the purpose of preventing public or private litter is authorized by the ststutes of this stat!?.. A contract with a private nonprofit corporationwhereby the count)' provides funds in return for the aid of the organization in accomplishi,ng thatpurposewould notbe prohibited so long as the contractualprT{isions assure receiptby the county of an adequate quid pro quo designed to further that end. Cf. Attorney - GeneralOpinionH-1123 (1978). 6,UHMARY -- A publicly funLe,d contract with a private nonprofit corporation to aid Nueces County in preventing public or private litter is not prohibited so long as the contractual provisions assure receipt by the county of an adequate quid pro quo designed to s,ccomplish thatpurpose.

JIM MATTOX AttorneyGeneral of Texas
TOM GREEN FirstAssistantAttorney General
DAVID R. RICRARDS ExecutiveAssistantAttorney General

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ROBERT GRAY SpecialAssistantAttorneyGen,eral
RICK GILPIN Chairman,Opinion Committee Preparedby BruceYoungblood AssistantAttorney General
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible Colin Carl SusanGarrison Tony Guillory JimMoellinger JenniferRiggs Bruce Youngblood

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