### THE ATTORNEY GENERAL ; OF TEXAS

Honorable Lisa L. Peterson Nolan CountyAttorney P. 0. BOX 1201 Sweetwater,Texas 79556 OpinionNo. JM-1240

Re: Authority of county employees to use eguipment to transport agricultural commodities for
a community action organization (RQ-2024)

DearMs. Peterson:

You askwhether the countymay authorize the use of its employees and equipment to transport agricultural commoditiesmade available through the United States Department of Agriculture (USDA)for a non-profit organization that has been designated a communityaction agency. People for Progress, Inc. (PPI),a non-profit organization funded largely by grants,has been designated by the Departmentof Human Services (DHS)to distribute surplus commoditieswhich 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 centraldistributionpoint 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 typewritersand other office equipment. (Source: Texas Department of Human Resources Publication No. EFAP-85-0, 1985) Until recently, PPI contractedwith a private carrier for the transportation of the commodities. The carrier isnow unavailable and the County has been asked to provide transportation.

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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 departmentmay cooperatewith a city or county in any manner necessary for the proper operation of thisprogram.
Section 33.003 of the Human Resources Code provides for distributiondistricts and agents. Section 33.003 states:

(a) The departmentmay establish distribution districts and employ distributing agents or may make other arrangements necessary to provide for the efficient distribution of commoditiesand food stamps.

We do not have the benefit of having the agreement between DHS and PPI beforeus. However,we understand your question to be whether the countyhas authority to authorize the use of its employees and equipment to transport the commodities rather thanwhether the county is under any obligation to participateunder the agreement.

You suggest that the use of county employees and equipmentmay be violative of the constitutional provisions prohibiting a commissionerscourt fromgrantingmoney 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 DHSmay make arrangementswith the county for distribution of the commodities, you note that DHS elected to make arrangementswith PPI as its distributing agent. Under these circumstances,you also raise the question of whether there is any statutoryauthority for the county to participate in the program.
The commissioners court has the powers expressly conferredupon itby the constitutionand the legislature,
aswell 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 Constitutionprohibit a county from

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

donatingmoney 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 renderedby DHS. Section 11.003provides:

No provision of this title [Hum.Res. Code title 21 is intendedto release the counties and municipalities in this state from the specific responsibilities they have with regard to the support of public welfare, childwelfare, and relief services. Funds which the counties and . . . muniG&nalitie **S** may aonronriate for the **SUDDO t**  of those **Droarams** may be administeredthrou:h the dSDartmSnt’S local or reaional offices. and if administered in thatmanner must be devoted exclusively to the nroarams in the countv or municinalitv m kina (Emphasisadded.; the aonronriation.

You direct our attention toAttorney General Opinions M-812 (1971)and JM-431 (1986). Attorney General Opinion JM-431 concluded that there was neither constitutional nor statutoryauthority for a county commissioner to expend county funds or utilize county-paidpersonnel to collect aid for foreignvictims of a naturaldisaster. Attorney General OpinionM-812 concluded that counties are authorized to expend county funds for carrying out the food stamp program where the countyhas contractedwith the State Department of PublicWelfare 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 commoditieswhere DHS has a contractwith a private agency for suchpurpose would **be** an abuse of the use of public funds.

It iswell establishedthat a countymay 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 commissionerscourt shall provide for the support of residents in the countywho are unable to support themselves. Section 122.001 of the Health and Safety Code provides that the commissioners court of a

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countymay appropriateand spend money from the general revenues forpublic health and sanitation in the county. It iswithin the discretion of the county tomake forpublic health in the county. expenditures The commissioners court may make reasonabledecisionsunder 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 corporationhas the resourcesand facilities at itsdisposal 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 (Acts1985, 69th Leg., ch. 150, eff.Aug. 26, 1985), relative to "EmergencyFood Assistance to Families and Individuals" states in the purpose clause and legislative findings:

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

the legislaturethat 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 500,000Texans in the civilian labor forcewere unemployed and not receiving umemployment insurance benefits. Manv of these *

.

familie

s and individualsreDort havina difficultyaettina an adeouate **SUDD~Y**
**f** &" r for

Still othersdo not qualify to receive food stampsbenefits.

. . . . '(13) Responses to a statewide survey conductedby the Senate InterimCommittee on Hunger and Nutrition among foodbanks indicated that food banks face significant difficultv in obtainina a sufficient number of freezers, coolers, trucks, and other eouiDment to handle the increasinavolume of t

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food that th Y distribute throuahout the state. (Emphazisadded.)

Whether the findingsof the 69th Legislature relative to people inneed of adequate food reflect conditions that may exist inNolan County is not a matter within our knowledge. Whether local conditions are such that the Nolan County Commissionerscould reasonablyassist PPI indistributing food for the needy is a fact question for the commissioners court to resolve in the first instance. In the event that it isdetermined that such a need exists, the legislaturehas evidenced its intent that DHS and a county cooperate in such a program. Any assistance that the-county providesmust 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 responsibilityto provide for the support of residents who are unable to support themselves because the Department of Human Serviceshas designated a non-profit organization to distribute agricultural commodities made available through the United States Departmentof Agriculture. Whether the local conditions are such that the commissionerscourt 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 commissionerscourt 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 assistancereceivehelp through the cooperative effort of the Department of Human Services and the county.

Attorney General of Texas

MARYRELLER FirstAssistantAttorney General

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MU MCCREARY ExecutiveAssistant Attorney General

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General

RENEA HICKS SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby Tom G. Davis AssistantAttorney General

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