JIMMATTOX Attorney General

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# TheAttorney General ofTexas
August 18, 1986

Honorable Rem Guerra Criminal District Mtorney Hidalgo County Courthouse Edinburg, Texas "8539 Opinion No. JM-533 Re: Whether acounty clerk may deliver the services of his office oncredit DearMr. Guerra: Youhave subm::tted the following question:

Does it violate article III. sections 50 and 52, of the Texas Constitution for the county clerk of Hidalgo County, Texas to maintain apolicy of allowing the general public, including attorneys, title ccmpanies. individuals, partnerships, and corporat:.ons, to maintain credit accounts for paying f,ses due the county clerk? Stated in the convsrsez, must the county clerk adopt acash only policy onall fees except the filing of lawsuits? The provisions of the Texas Constitution you cite, sections 50 and52of article 'III, aswell as article XI, section 3, prohibit the "lending of credit" by the state or its subdivisions. section 50 prohibits lending the credit of the state, andsection 52prevents the legislature from authorizing political subdivisions to lend their credit -- thereby :.nhibiting counties indirectly. Article XI, section 3, is a direct prohibition against the lending of its credit by a county. With exceptions not pertinent here, article III, section 52, reads: [T]he Le@lature shall have nopower to authorize

any county, city, town or other political corporation or :subdivision of the State to lend its credit or to grant public money or thing of value in aid of. or to any individual, association or corporatj.on whatsoever, or tobecome astockholder in such corporation, association or company. (Emphasis, added).

p. 2455Honorable Rene Guerra - Pagr 2 (ai-533)

‘7 Article XI, section 3, reads::

Theother Nocounty, city, or other municipal corporation

shall hereafter bt!come asubscriber to the capital of anyprivate corporation or association, or make any appropriation ,ordonation to the same, or in anywise loan its ,credit; but this shall not be -- construed to in any way affect any obligation heretofore undertaken pursuant to law. (Emphasis added). provision, section 50of article III, declaresi TheLegislatum shall have nopower to give or to lend, or to auxhorize the giving or lending. of the credit of the State in aid of, or to any person, associat:ion or corporation, whether municipal or othe::,, or to pledge the credit of the State in anymannm:whatsoever, for the payment of the liabilities, present or prospective, of any individual, association of individuals, municipal or other corpcration whatsoever. (Emphasis added). In each of these provtrions, the phrases “lend its credit,” “loan its credit,” and “lending #ofthe credit” appear to have the same meaning. The meaning of 1:h.esection 50 language was considered in Braden, The Constitution ~jf the State of Texas: An Annotated and Comparative Analysis (1977);volume 1at page 225, where it wassaid:

Section 50states that the legislature maynot

‘give’ the credit of the state to anybody, ‘lend’ the credit of the state to anybody, or ‘pledge’ the credit of thlt state for anybody.

. . . This is an involved and somewhat imprecise way of saying that the state may not aid anybody by lending himmone:r; by provtding him land, goods, or services on cl,edit; or by guaranteeing payment to a third party-z aids anybody by lending him moneyor providing himland, goods, or services on credit. (Emphasis added). See Attorney General 0pin:ton MW-461 (1982). The Supreme Court of Texas similarly concluded in City of Cleburne v. Brown, 11 S.W. 404 (Tex. 1889) that the article XI, section 3, language specifying that a municipality could not in anywise “loan its credit” prevented a city from accepting, in lieu a:E cash, corporate bonds in payment for transferring its waterworks to acorporation. In construing the meai:Lng of particular words in a part of the Constitution of Texas, such as article III, section 52, resort maybe

p. 2456, Bonorable Rene Guerra - Pag, 3 (JM-533)

had to other sections of the instrument for the sense in which the words are used. Comm'nApp. 1928). State v. Gillette's Estate, 10 S.W.2d 984 (Tex. In the-tight of the 9 'of Cleburnq holding, we believe the proscriptions of article III, section 52, and Iarticle XI, section 3, meanthat county officers are not authorized -- andcannot be authorized -- to deliver county services to individuals, associations or corporations on t,redit unless some other provision of the constitution authorizes it IOdoso. . You have noted the provisions of Rule 142of the Texas Rules of Civil Procedure, authorizing the clerk to require security for costs from the plaintiff before iissuing anyprocess, but specifying that the clerk "shall file the'petitlon andenter the sameonthe docket." The emphasized provision, we tz;lieve, is necessary to comply with the commandof article I, sectim 13. of the Constitution of Texas that

[a]11 courts shall be open, and every person for and injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.



### r See Dillingham v. Putnam, 14 S.W. 303 (Tex. 1890). See also Union

Century Life Ins. Co. v. Chowning, 26 S.W. 982 

### (Tex.1894). cf. Nelson v. Krusen, 678S.W.2(r918 (Tex. 1984). Thus, the county clerk :nust file and docket apetition presented for filing without requir~ll: immediate payment therefor, because to refuse would deny the petttioner his constitutional right to open courts. Cf. LeCroy v. Hanlor!,

_ S.W.2d opinion delivered July 2, -986). (Tex. 1986) (No. C-4745, But the= is nowarrant to extend credit for county fees, fines and other charges not similarly impinging on constitutional rights and privileges. See Robinson v. State, 29 S.W. 788 (Tex Crim. App. 1895); Attorney General Opinions MW-461 (1982). S-42 (1953). Cf. Tex. R. Civ. Proc. 145 (affidavit of inability to give security). - SUMMARY County officers are not authorized -- and cannot beauthorixed -- to deliver county services to individuals, ,xasociations or corporations on credit unless sore provision of the Constitution of Texas authoriza!a it to doso. Very ruly yours 

# s/Y-JJbc

/c;, JIM MATTOX Attorney General of Texas

p. 2457Honorable ReneGuerra - Pag#z4 (JM-533)



### JACKHIGHTOWER First Assistant Attorney General MARYKELLER Executive Assistant Attornq General RICKGILPIN Chairman, Opinion Ccmnittee Prepared byBruce Youngblood Assistant Attorney General .



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