THE ATTORNEY GENERAL 

; OF TEXAS 

Honorable Lisa L. Peterson 

Nolan County Attorney 

P. 0. BOX 1201 

Sweetwater, Texas 79556 

Opinion No. JM-1240 

Re: Authority of county 

employees to use eguipment to transport agricultural commodities for 

a community action organization (RQ-2024) 

Dear Ms. Peterson: 

You ask whether the county may authorize the use of its 

employees and equipment to transport agricultural commodities made available through the United States Department of 

Agriculture (USDA) for a non-profit organization that has 

been designated a community action agency. 

People for Progress, Inc. (PPI), a non-profit organization funded largely by grants, has been designated by the 

Department of Human Services (DHS) to distribute surplus 

commodities which DHS receives from the USDA in Nolan 

County. YOU relate the following facts relative to the 

distribution of such commodities. 

[PPI] is responsible for transporting the 

commodities from a central distribution point 

to the county, and otherwise complying with 

the DHS regulations. Funds are available 

though DHS to reimburse the local agencies 

for all expenses incurred in transportation, 

storage, and distribution, even to rental and 

depreciation of typewriters and other office 

equipment. (Source: Texas Department of 

Human Resources Publication No. EFAP-85-0, 

1985) Until recently, PPI contracted with a 

private carrier for the transportation of the 

commodities. The carrier isnow unavailable 

and the County has been asked to provide 

transportation. 

p. 6594 
Honorable Lisa L. Peterson - Page 2 (JM-1240) 

Section 33.001 of the Human Resources Code addresses 

the matter of the distribution of federal surplus commodities, as follows: 

(a) The department [DHS] is the state 

agency designated to cooperate with the 

federal government in administering the 

distribution of federal surplus commodities 

and other resources. 

(b) The department may cooperate with a 

city or county in any manner necessary for 

the proper operation of this program. 

Section 33.003 of the Human Resources Code provides for 

distribution districts and agents. Section 33.003 states: 

(a) The department may establish distribution districts and employ distributing 

agents or may make other arrangements necessary to provide for the efficient distribution of commodities and food stamps. 

We do not have the benefit of having the agreement 

between DHS and PPI before us. However, we understand your 

question to be whether the county has authority to authorize 

the use of its employees and equipment to transport the 

commodities rather than whether the county is under any 

obligation to participate under the agreement. 

You suggest that the use of county employees and 

equipment may be violative of the constitutional provisions 

prohibiting a commissioners court from granting money or any 

other thing of value to any individual, association or 

corporation. See Tex. Const. arts. III, § 52: XI, f, 3. 

While you recoaze that DHS may make arrangements with the 

county for distribution of the commodities, you note that 

DHS elected to make arrangements with PPI as its distributing agent. Under these circumstances, you also raise the 

question of whether there is any statutory authority for the 

county to participate in the program. 

The commissioners court has the powers expressly 

conferred upon it by the constitution and the legislature, 

as well as the implied powers necessary to exercise powers 

expressly conferred. Canales V. Lauahlin, 214 S.W.Zd 451 

(Tex. 1948). Article III, section 52, and article XI, 

section 3, of the Texas Constitution prohibit a county from 

p. 6595 
I 

Honorable Lisa L. Peterson - Page 3 (JM-1240) 

donating money or any other thing of value to a corporation. 

See Attorney General Opinion JM-1199 (1990). 

Section 11.003 of the Human Resources Code expressly 

provides that counties and municipalities are not relieved 

from their responsibilities by virtue of the assistance 

rendered by DHS. Section 11.003 provides: 

No provision of this title [Hum. Res. Code 

title 21 is intended to release the counties 

and municipalities in this state from the 

specific responsibilities they have with 

regard to the support of public welfare, 

child welfare, and relief services. Funds 

which the counties and . . . muniG&nalitie S may 

aonronriate for the SUDDO t of those Droarams 

may be administered throu:h the dSDartmSnt’S 

local or reaional offices. and if administered in that manner must be devoted exclusively to the nroarams in the countv or 

municinalitv m kina 

(Emphasis added.; 

the aonronriation. 

You direct our attention to Attorney General Opinions 

M-812 (1971) and JM-431 (1986). Attorney General Opinion 

JM-431 concluded that there was neither constitutional nor 

statutory authority for a county commissioner to expend 

county funds or utilize county-paid personnel to collect aid 

for foreign victims of a natural disaster. Attorney General 

Opinion M-812 concluded that counties are authorized to 

expend county funds for carrying out the food stamp program 

where the county has contracted with the State Department of 

Public Welfare pursuant to then article 695c, V.T.C.S. (now 

codified as various sections of title 2, Human Resources 

Code). You reason that in light of the foregoing opinions, 

the use of county man-hours and equipment to transport 

commodities where DHS has a contract with a private agency 

for such purpose would be an abuse of the use of public 

funds. 

It is well established that a county may contract with 

a private entity to perform services that it might have 

performed itself. Attorney General Opinions JM-716 (1987) ; 

JM-65 (1983); H-127 (1973). Section 6 of article 2351, 

V.T.C.S., states that the commissioners court shall provide 

for the support of residents in the county who are unable to 

support themselves. Section 122.001 of the Health and 

Safety Code provides that the commissioners court of a 

p. 6596 
Honorable Lisa L. Peterson - Page 4 (JM-1240) 

county may appropriate and spend money from the general 

revenues for public health and sanitation in the county. It 

is within the discretion of the county to make 

for public health in the county. 

expenditures 

The commissioners court 

may make reasonable decisions under section 122.001 to spend 

county funds to protect the public health, 

judicial review for abuse of discretion. 

subject to 

General Opinion JM-1199. 

&.g Attorney 

Matters such as whether the local 

non-profit corporation has the resources and facilities at 

its disposal to meet the needs of residents for commodities 

to meet basic health requirements 

relevant consideration. 

would appear to be a 

Title IV of chapter 33 of the Human Resources Code 

(Acts 1985, 69th Leg., ch. 150, eff. Aug. 26, 1985), relative to "Emergency Food Assistance to Families and Individuals" states in the purpose clause and legislative findings: 

'Sec. 1. Purpose. It is the intent of 

the legislature that every Texan legitimately 

in need of emergency food assistance receive 

as raDidlv as Dossible throuah the 

pooDerative efforts of both the Dublic and 

private sectors . 

'Sec. 2. Legislative Findings. 

islature finds that: 

The Leg- 

. . . . 

’ (10) In 1984, over 500,000 Texans in the 

civilian labor force were unemployed and not 

receiving umemployment insurance benefits. 

Manv of these * . familie s and individuals reDort 

havina difficulty aettina an adeouate SUDD~Y 

f 

&" 

r for 

Still others do not qualify to receive 

food stamps benefits. 

. . . . 

'(13) Responses to a statewide survey 

conducted by the Senate Interim Committee on 

Hunger and Nutrition among food banks indicated that food banks face significant 

difficultv in obtainina a sufficient number 

of freezers, coolers, trucks, and other 

eouiDment to handle the increasina volume of 

t 

P. 6597 
Honorable Lisa L. Peterson - Page 5 (JM-1240) 

food that th Y distribute throuahout the 

state. (Emphazis added.) 

Whether the findings of the 69th Legislature relative 

to people in need of adequate food reflect conditions that 

may exist in Nolan County is not a matter within our knowledge. Whether local conditions are such that the Nolan 

County Commissioners could reasonably assist PPI in distributing food for the needy is a fact question for the commissioners court to resolve in the first instance. In the 

event that it is determined that such a need exists, the 

legislature has evidenced its intent that DHS and a county 

cooperate in such a program. Any assistance that the-county 

provides must be subject to controls, contractual or otherwise, to insure that the public purpose is carried out. 

SUMMARY 

Nolan County is not relieved of its 

statutory authority to make expenditures for 

public health or its responsibility to provide for the support of residents who are 

unable to support themselves because the 

Department of Human Services has designated a 

non-profit organization to distribute agricultural commodities made available through 

the United States Department of Agriculture. 

Whether the local conditions are such that 

the commissioners court could reasonably use 

county employees and equipment to aid the 

non-profit corporation in the distribution of 

adequate food to the needy is a fact question 

for the commissioners court to resolve in the 

first instance. In the event such a need 

exists, the legislature has evidenced its 

intent that those in need of emergency food 

assistance receive help through the cooperative effort of the Department of Human 

Services and the county. 

Attorney General of Texas 

MARYRELLER 

First Assistant Attorney General 

p. 6598 
Honorable Lisa L. Peterson - Page 6 (JM-1240) 

MU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 6599