- OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

November 6,200l 

The Honorable Tim Cone 

Criminal District Attorney 

Upshur County Justice Center 

405 North Titus Street 

Gilmer, Texas 75644 

Opinion No. JC-0432 

Re: Whether Upshur County may pay the City of 

Gilmer for half the cost of golf towels given to 

members of the legislature in connection with 

Upshur County Day (RQ-0401-JC) 

Dear Mr. Cone: 

On behalf of the Upshur County Commissioners Court and the Upshur County Auditor, you 

ask whether the county may reimburse the City of Gilmer for half of the cost of golf towels given 

to legislators in connection with Upshur County Day. Upshur County may not reimburse the City 

of Gilmer for half the city’s cost for the golf towels already given to legislators by the city. 

Several officials from Upshur County and the City of Gilmer, its county seat, attended 

Upshur County Day in Austin.’ See Tex. H.R. 419,77th Leg., R.S. (2001) (resolution recognizing 

April 11,2001, as Upshur County Day at the State Capitol). During this trip, golf towels prepared 

at the direction of the City of Gilmer and the Gilmer Industrial Foundation and inscribed with a fivecolor City of Gilmer logo were given as gifts to legislators.2 The City of Gilmer sought 

reimbursement from the county in the amount of $443.77, half of the cost of the towels. See Request 

Letter, note 1, at 1. You question whether this payment would be an authorized expenditure of 

public funds. 

The issue before us is whether Upshur County may reimburse the city for an expenditure it 

made in the past. Thus, we need not consider whether Upshur County could have decided in 

advance to spend public funds for this purpose. See generally Bland v. City of Taylor, 37 S.W.2d 

291 (Tex. Civ. App.-Austin 193 l), afd, Davis v. City of Taylor, 6? S.W.2d 1033 (Tex. 1934) 

(authority of city to spend money to advertise itself and promote growth and development); Tex. 

Att’y Gen. Op. Nos. JC-02 12 (2000) (whether city may join with local school district in sending high 

*Letter from Honorable Tim Cone, Upshur County Criminal District Attorney, to Honorable John Comyn, 

Texas Attorney General (July 5,200l) (on file with Opinion Committee) [hereinafter Request Letter]. 

*Memo from Pam Long, Upshur County Auditor, to Honorable Tim Cone, Upshur County Criminal District 

Attorney (Apr. 16,200l) (on file with Opinion Committee) (attached to Request Letter). 
The Honorable Tim Cone - Page 2 (JC-0432) 

school musical groups to out-of state performances); JM-220 (1984) (authority of local governments 

to spend money for sesquicentennial celebration). 

The commissioners court exercises the county’s authority to contract and to determine how 

county funds will be spent. Canales v. Laughlin, 214 S.W.2d 45 1,455 (Tex. 1948); Anderson v. 

Wood, 152 S.W.2d 1084, 1085 (Tex. 1941); Weber v. Sachse, 591 S.W.2d 563, 565 (Tex. Civ. 

App.-Dallas 1979, writ dism’d). Its authority to spend public funds is subject to constitutional 

limits. A county may not “grant public money or thing of value in aid of, or to any individual, 

association or corporation whatsoever.” TEX. CONST. art. III, 0 52. A “corporation” within this 

provision includes municipal and political corporations. See San Antonio Indep. Sch. Dist. v. Bd. 

of Trs. of the San Antonio Elec. & Gas Sys., 204 S.W.2d 22,25 (Tex. Civ. App.-El Paso 1947, writ 

ref d n.r.e.) (city could not lend or donate public funds to school district, which was a separate 

municipal corporation). A county may not contribute its funds to another local government, unless 

it is to cany out a county purpose. See Bexar County Hosp. Dist. v. Crosby, 327 S.W.2d 445 (1959); 

State ex rel. Grimes County Taxpayers Ass ‘n v. Tex. Mm. Power Agency, 565 S.W.2d 258, 266 

(Tex. Civ. App.-Houston [ 1 st Dist.] 1978, writ dism’d). 

The Gilmer City Council, in deciding to buy golf towels to give to legislators, presumably 

determined that a public purpose of the city would be served by the expenditure, but the 

commissioners court was not involved in this decision and did not determine whether an expenditure 

for this purpose would serve a county purpose. The city carried out its purpose by giving the towels 

away in connection with Upshur County Day, and the transaction has run its course. A transfer of 

funds from Upshur County to Gilmer at this point would not contribute to the original purpose of 

the transaction, but would only replenish the city’s treasury for part of the city’s expenditure for this 

purpose. The “reimbursement” to Gilmer would amount to an unconstitutional donation of county 

funds to the city, in violation of article III, section 52 of the Texas Constitution. 

Article III, section 53 of the Texas Constitution also bars Upshur County from making 

payment to the city. Article III, section 53 provides that a county or municipal corporation has no 

authority to grant extra compensation to a public servant or contractor after service has been 

rendered. After the county has entered into a contract and work under it has begun, this provision 

bars a county from paying the contractor more that it agreed in the contract to pay him. See SheZby 

County v. Gibson, 44 S.W. 302 (Tex. Civ. App.-1898, writ ref d). If a county attempts to enter into 

a contract but lacks authority to do so, or fails to comply with applicable laws, this constitutional 

provision bars the county from paying a claim based on the alleged contract. See Harlingen Indep. 

Sch. Dist. v. C.H. Page & Bro., 48 S.W.2d 983,986 (Tex. Comm’n App. 1932, judgm’t adopted). 

In this case, the towels were produced at the direction of the City of Gilmer and the Gilmer 

Industrial Foundation, and Upshur County was not a party to this agreement. The Upshur County 

Commissioners Court did not contract to pay $443.77 or any other amount in exchange for having 
The Honorable Tim Cone - Page 3 (JC-0432) 

a specific number of golf towels prepared, and thus there is no valid contract under which the county 

could make payment for the towels. Because the city’s request for “reimbursement” is not based on 

a valid contract between the city and Upshur County, article III, section 53 bars Upshur County from 

making payment to the city. Upshur County may not reimburse the City of Gilmer for any of the 

city’s cost for the golf towels given to legislators by the city in connection with Upshur County Day. 
The Honorable Tim Cone - Page 4 (JC-0432) 

SUMMARY 

Article III, sections 52 and 53 of the Texas Constitution bar 

Upshur County from reimbursing the City of Gilmer for half the 

city’s cost for golf towels given to legislators in connection with 

Upshur County Day. 

N CORNYN 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee