- 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: Onbehalf ofthe Upshur County Commissioners Court and the Upshur County Auditor, you ask whether the county may reimburse the City of Gilmer for half ofthe 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, asUpshur County Day atthe State Capitol). During this trip, golf towels prepared atthe direction ofthe City ofGilmer and the Gilmer Industrial Foundation and inscribed with afivecolor City of Gilmer logo were given as gifts to legislators.2 The City of Gilmer sought reimbursement from the county inthe amount of$443.77, half ofthe cost ofthe 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 iswhether 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 ofTaylor, 37 S.W.2d 291 (Tex. Civ. App.-Austin 193l), 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 mayjoin 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 toout-of state performances); JM-220 (1984) (authority oflocal 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 451,455 (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. ofTrs. ofthe 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 itisto cany out acounty purpose. SeeBexar County Hosp. Dist. v. Crosby, 327 S.W.2d 445 (1959); State ex rel. Grimes County Taxpayers Ass ‘nv. Tex. Mm. Power Agency, 565 S.W.2d 258, 266 (Tex. Civ. App.-Houston [1stDist.] 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 inthis decision and did not determine whether anexpenditure forthis purpose would serve acounty purpose. The city carried out itspurpose 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 atthis point would not contribute to the original purpose of the transaction, but would only replenish the city’s treasury forpart ofthe city’s expenditure forthis purpose. The “reimbursement” to Gilmer would amount to an unconstitutional donation ofcounty funds to the city, in violation of article III, section 52 ofthe Texas Constitution. Article III, section 53 of the Texas Constitution also bars Upshur County from making payment to the city. Article III, section 53provides that acounty 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 acontract and work under ithas begun, this provision bars acounty from paying the contractor more that it agreed inthe contract topay him. See SheZby County v. Gibson, 44 S.W. 302 (Tex. Civ. App.-1898, writ ref d). Ifacounty attempts to enter into acontract but lacks authority to do so, or fails to comply with applicable laws, this constitutional provision bars the county from paying aclaim based on the alleged contract. SeeHarlingen 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 atthe direction ofthe City of Gilmer and the Gilmer Industrial Foundation, and Upshur County was not aparty to this agreement. The Upshur County Commissioners Court did not contract to pay $443.77 or any other amount in exchange for havingThe Honorable Tim Cone - Page 3 (JC-0432)

aspecific number ofgolf towels prepared, and thus there isno valid contract under which the county could make payment for the towels. Because the city’s request for “reimbursement” isnot based on avalid contract between the city and Upshur County, article III, section 53bars Upshur County from making payment to the city. Upshur County may not reimburse the City of Gilmer for any ofthe city’s cost for the golf towels given to legislators by the city inconnection with Upshur County Day.The Honorable Tim Cone - Page 4 (JC-0432)



### SUMMARY Article III, sections 52 and 53 ofthe 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 ofTexas

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