Ms. Christina Moreno 

Bandera County Auditor 

Post Office Box 563 

Bandera, Texas 78003 

Dear Ms. Moreno: 

KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

May 23, 2016 

Opinion No. KP-0091 

Re: Whether article III, section 52 of the 

Texas Constitution prohibits a county from 

providing financial assistance to a nonprofit 

organization (RQ-0079-KP) 

You ask whether a county may "enter into an agreement with Boys and Girls Club without 

violating Article III, Section 52 of the Texas Constitution."1 You explain that the Boys and Girls 

Clubs of Bandera County have "requested financial assistance," and you question whether the 

county has statutory authority to provide such funding. Request Letter at 2. 

Article III, subsection 52(a) of the Texas Constitution provides: 

Except as otherwise provided by this section, the Legislature shall 

have no power 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 corporation whatsoever .... 

TEX. CONST. art. III, § 52(a). The purpose of this provision is "to prevent the gratuitous grant of 

[public] funds to any individual, corporation, or purpose whatsoever." Byrd v. City of Dallas, 6 

S.W.2d 738, 740 (Tex. 1928). Spending public funds for a legitimate public purpose to obtain a 

clear public benefit, however, is not an· unconstitutional grant of public funds. See Edgewood 

Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995). Furthermore, an expenditure to 

directly accomplish a legitimate public purpose is constitutional even though it incidentally 

benefits a private interest See Tex. Att'y Gen. Op. No. GA-0078 (2003) at 5 (concluding that the 

incidental benefit to private attorneys would not render the provision of online legal research 

services at a county law library unconstitutional). 

The Texas Supreme Court has articulated a three-part test to determine whether a transfer 

of funds from a public entity to a private entity satisfies the limitations of article III, subsection 

1Letter from Ms. Christina Moreno, Bandera Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. 

(Nov. 24, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter"). 
Ms. Christina Moreno - Page 2 (KP-0091) 

52(a). See Tex. Mun. League Intergov 'ti Risk Pool v. Tex. Workers' Comp. Comm 'n, 74 S.W.3d 

377, 384 (Tex. 2002). The entity making the transfer must (1) ensure that the transfer is to 

"accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds 

to ensure that the public purpose is accomplished and to protect the public's investment; and 

(3) ensure that the political subdivision receives a return benefit." Id. 

Related to the first prong, which requires that the monetary transfer serve a public purpose, 

you ask whether a specific statute "would allow Bandera County to fund Boys and Girls Club of 

Bandera County." Request Letter at 2. A prior opinion of this office addressed a county's 

provision of funding to specific nonprofit corporations that provided various services to residents 

of the county. See Tex. Att'y Gen. Op. No. JC-0439 (2001). That opinion addressed, among other 

things, whether a county could provide $3,000 to Big Brothers and Sisters in exchange for the 

services that it provided to children from single-parent families in the county. Id. at 4. The opinion 

noted that section 264.006 of the Family Code expressly empowers a county commissioners court 

to "provide for services to and support of children in need of protection and care." TEX. FAM. 

CODE § 264.006; see Tex. Att'y Gen. Op. No. JC-0439 (2001) at 5. This office concluded that 

"section 264.006 authorizes the County to transfer funds to ... Big Brothers and Sisters" to the 

extent that the organization provides services to and support for children who need protection and 

care. Tex. Att'y Gen. Op. No. JC-0439 (2001) at 5. 

Attached to your request, you provide a document from the Boys and Girls Clubs of 

Bandera County that describes some of the services they provide, including, among others, afterschool programs for grade-school children to obtain homework assistance and supervision.2 Under 

particular facts, the provision of after-school care for children from low-income families could be 

a statutorily-authorized service for children in need of protection and care. Fact finding is beyond 

the scope of an attorney general opinion, and we therefore are unable to determine whether, in fact, 

an organization is providing the services authorized by a particular statute. See Tex. Att'y Gen. 

Op. No. GA-0106 (2003) at 7 ("This office cannot find facts or resolve fact questions in an attorney 

general opinion."). However, to the extent that the Boys and Girls Clubs of Bandera County 

provide services and support to children in the county in need of protection and care, section 

264.006 of the Family Code could serve as authority for Bandera County to provide financial 

assistance to the organizations in furtherance of a statutory public purpose of the county, so long 

as the additional constitutional requirements are met. 

In addition to serving a public purpose, a county transferring public funds to a private entity 

must retain public control over the funds to ensure that the public purpose is accomplished and to 

protect the public's investment. See Tex. Mun. League Intergov 'ti Risk Pool, 74 S.W.3d at 384. 

Depending on the specific transfer of funds at issue, a contractual agreement outlining 

requirements that the receiving entity must comply with in exchange for the funds may provide 

sufficient control over the funds. See Key v. Comm 'rs Ct. of Marion Cty., 727 S.W.2d 667, 669 

(Tex. App.-Texarkana 1987, no writ) (noting that the transfer at issue did not involve a 

contractual agreement for services to retain formal control). A county transferring public funds to 

2See generally Request Letter attachment from Boys & Girls Clubs of Bandera Cty. (on file with the Op. 

Comm.). 
Ms. Christina Moreno - Page 3 (KP-0091) 

a private entity must also ensure that the county receives a return benefit. See Tex. Mun. League 

Intergov 'ti Risk Pool, 74 S.W.3d at 384. The return benefit received by the county need not be 

monetary, but could instead be the accomplishment of a county's public purpose. See Tex. Att'y 

Gen. Op. No. GA-0076 (2003) at 7. The determination of whether a particular expenditure satisfies 

the three-part test is for the commissioners court to make in the first instance, subject to judicial 

review for an abuse of discretion. Tex. Att'y Gen. Op. No. GA-0843 (2011) at 2; see also Comm 'rs 

Ct. of Titus Cty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997) (recognizing a district court's supervisory 

control over a commissioners court that abuses its discretion). 
Ms. Christina Moreno - Page 4 (KP-0091) 

SUMMARY 

A county entering into an agreement with Boys and Girls 

Clubs to provide the organizations funding will not violate article 

III, subsection 52(a) of the Texas Constitution as long as the county 

(1) ensures that the transfer is to accomplish a public purpose of the 

county, not to benefit private parties; (2) retains public control over 

the funds to ensure that the public purpose is accomplished and to 

protect the public's investment; and (3) ensures that the county 

receives a return benefit. 

To the extent that the Boys and Girls Clubs of Bandera 

County provide services and support to children in need of 

protection and care, section 264.006 of the Family Code authorizes 

Bandera County to provide financial assistance to the organizations 

in furtherance of a statutory public purpose of the county, so long as 

the other constitutional requirements are met. 

JEFFREY C. MATEER 

First Assistant Attorney General 

BRANTLEY STARR 

Deputy First Assistant Attorney General 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

Very truly yours, 

~?~ KEN PAXTON 

Attorney General of Texas