OPFlCE OF THE ATTORNEY GENERAL STATE OF TEXAS 

JOHN CORNYN 

July 14, 1999 

The Honorable James Warren Smith, Jr. 

Frio County Attorney 

500 East San Antonio Street, Box 1 

Pearsall, Texas 78061-3100 

Opinion No. JC-0080 

Re: Whether under article III, section 52 or 

article XI, section 3 of the Texas Constitution a 

county may pay registration fees for a county 

official or county employee to attend a state 

association conference, either mandatory or 

voluntary, and related questions (RQ-1226) 

Dear Mr. Smith: 

You ask three questions about the constitutionality of various uses of county funds in 

light of article III, section 52 and article XI, section 3 of the Texas Constitution. You ask first 

whether a county constitutionally may pay for registration “at the different elected officials state 

associations . . to attend either mandated or elective conferences” and for the officials lodging 

while they attend the conferences. Letter from Honorable James Warren Smith, Jr., Frio County 

Attorney, to the Attorney General of Texas (Nov. 23, 1998) (on file with Opinion Committee) 

[hereinafter “Request Letter”]. You ask second whether a county constitutionally may pay in 

advance for public notices placed in the local newspaper. Id. at 2. You ask third whether a county 

may pay the salaries of county officials and employees prior to the regularly scheduled pay day. Id. 

With the possible exception of the payment of county officials’ and employees’ salaries in advance 

of services rendered, we believe the commissioners court reasonably may find that the expenditures 

satisfy the constitutional requisites. 

Your questions are premised upon the prohibitions of article III, section 52(a) and article XI, 

section 3 of the Texas Constitution. Both provisions restrict a county’s grants of public funds and 

loans of credit: 

(a) Except as otherwise provided by this section, the Legislature 

shall have no power to authorize any county . to lend its credit or 

to grant public money or thing ofvalue in aid of, or to any individual, 

association or corporation whatsoever. 

TEX. CONST. art. III, 5 52(a). 
The Honorable James Warren Smith, Jr. - Page 2 (JC-0080) 

No county . shall hereafter make any appropriation or 

donation to [a private corporation or association] or in anywise loan 

its credit. 

Id. art. XI, $ 3. 

Each of these constitutional provisions restricts the use of public money to the 

accomplishment of public purposes. As the Texas Court of Civil Appeals described article III, 

section 52, “[tlhe clear purpose of this constitutional provision is to prevent the gratuitous 

application of funds to private use. The constitution does not, however, invalidate an expenditure 

which incidentally benefits a private interest if it is made for the direct accomplishment of a 

legitimate public purpose.” Brazoria County Y. Perry, 537 S.W.2d 89, 90-91 (Tex. 

Civ. App.-Houston [lst Dist.] 1976, no writ) (citations omitted); accord Tex. Att’y Gen. Op. Nos. 

JC-0011 (1999) at 2, JM-1229 (1990) at 5 (quoting Brazoria County, 537 S.W.2d at 90-91). Article 

XI, section 3’s purpose is the same. See Tex. Att’y Gen. Op. No. JM-1194 (1990) at l-2 (listing 

many constitutional provisions that prohibit grant of public funds and lending of public credit to 

private individuals or organizations); see also 2 GEORGE D. BFUDEN ET AL., THE CONSTITLJ~ON OF 

THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 676-77 (1977) (discussing 

article XI, section 3). 

This office has determined that a grant or loan of credit to a private entity contravenes the 

constitution only if it serves no public purpose or if the governing body fails to attach conditions to 

the payment to ensure that the public purpose will be accomplished. See Tex. Att’y Gen. Op. No. 

JC-0011 (1999) at 2-3. In Attorney General Opinion JM-1229 this office concluded that a lending 

of credit violates the constitution unless it accomplishes a public purpose and is accompanied by 

conditions to ensure that the loan will be used for the public purpose. See Tex. Att’y Gen. Op. No. 

JM-1229 (1990) at 6. “The determination that a particular extension of credit meets the 

constitutional requirements is in the first instance within the sound discretion ofthe governing body, 

subject to judicial review.” See id. at 6-7. This office also has determined that a lending of credit 

for constitutional purposes does not include a“mere extension of credit by deferred collection of fees 

in a sale of goods or services.” Tex. Att’y Gen. Op. No. DM-382 (1996) at 14. The constitutionality 

of a direct grant of public funds is analyzed the same as a lending of credit. See Edgewood Zndep. 

Sch. D&t. v. Meno, 917 S.W.2d 717,740 (Tex. 1995); Tex. Att’y Gen. Op. No. JC-0011 (1999) at 

2-3. With this understanding of the two constitutional provisions you cite, we consider your 

questions. 

You first ask about the county’s payment of registration fees and lodging expenses so that 

county officials may attend state conferences, attendance at which may be mandated by statute or 

optional. You are concerned that the payment of county funds to an official’s state association may 

be a lending of credit to the association and that the payment ofcounty funds to a hotel or motel may 

be a lending of credit to a corporation. 
The Honorable James Warren Smith, Jr. - Page 3 (JC-0080) 

The payments about which you ask are “grant[s] [of] public money” to private entities, in 

the words of article III, section 52, or “appropriation[s]” to private entities, in the words of article 

XI, section 3. Thus, in accordance with Attorney General Opinion Jh4-1229, we must consider 

whether a commissioners court reasonably may find that these expenditures serve a valid public 

purpose and that the county has attached appropriate conditions to the expenses to ensure that the 

public purpose is accomplished. See Tex. Att’y Gen. Op. No. Jh4-1229 (1990) at 6. 

We believe that a county commissioners court reasonably may find that funding officials’ 

or employees’ registration for various conferences and hotel accommodations while the official or 

employee attends the conference serves a public purpose, regardless of whether attendance at the 

conference is mandatory or optional. See Tex. Att’y Gen. LO-97-077, at 3 (stating that membership 

and participation in private professional association may benefit public employer). You contend that 

the county officials’ or employees’ attendance at the various conferences accomplishes a public 

purpose because the training and education the elected officials and county employees obtain at these 

conferences “increase their competency in their public positions.” Request Letter, supra, at 3. 

Analogously, the Texas Court of Civil Appeals has recognized that paying an employee’s 

certification-course expenses “represent expenditures for the direct accomplishment of a legitimate 

public purpose.” Brazoria County, 537 S.W.2d at 91. Nevertheless, whether a particular 

expenditure will serve a public purpose is a determination for the commissioners court, not this 

office, to make and is subject to review by a court. 

We have not been informed whether the county commissioners court conditions use of the 

county funds on accomplishment of a public purpose. The commissioners court must ensure that 

the payment is “premised upon some basis of fact.” See Tex. Att’y Gen. Op. No. H-992 (1977) at 

2. The commissioners court might, for example, require the requesting official or employee to 

submit with the request for Iimding a copy of the agenda or to describe the subject matter of the 

conference. The substance and adequacy of the conditions are matters for the commissioners court, 

not this office, to determine and are, again, subject to review by a court. 

You next ask whether a county constitutionally may pay for public notices to be printed in 

the local newspaper before the notices are published. You explain that the county publishes notices 

on behalf of litigators in some instances and on its own behalf in other instances. See Request Letter, 

supra, at 2. In all instances, however, you indicate that the local publisher refuses to print the notices 

until payment is received: 

Our district and county clerks often have to publish notices on behalf 

of litigators but without specifically stating to the newspaper 

publisher that the billing for these notices should be submitted to the 

attorneys so requesting publication. The county and district clerks as 

well as the county auditor (who also submits notices to be published 

in local newspaper soliciting competitive bids . ) know what bills 

that they are to pay the publisher from the county’s general fund. 
The Honorable James Warren Smith, Jr. - Page 4 (X-0080) 

The publisher now refuses to publish any more COUNTY NOTICES 

UNTIL ALL notices submitted by the clerks and the auditor are paid 

even though it was plainly designated to the publisher which bills 

were strictly the county’s and those which were submitted by the 

attorneys to the clerks (in conjunction with the attorneys’ lawsuits) 

and which clerks, in turn, submitted to the publisher for publication. 

And, furthermore, from this time on, the publisher WILL NOT 

PUBLISH WHAT WILL BE CLEARLY COUNTY NOTICES 

WITHOUT BEING PAID IN ADVANCE. 

Id. 

With respect to both ofthese situations, the important inquiry is whether the proposed county 

expenditure will serve a public purpose and whether the county has attached sufficient conditions 

to the expenditure to ensure that the money achieves a public purpose. The county commissioners 

court is the proper arbiter of these issues, although its decision is subject to review by an appropriate 

court. 

Third, you ask whether, at the county commissioners court’s direction, the county clerk, 

county treasurer, and county auditor may cosign warrants for county officials’ and employees’ 

salaries before the regularly scheduled payday. See id. You ask about two different situations. In 

the first, the regularly scheduled payday falls on a holiday. In this scenario, the county pays its 

officials and employees before the holiday, on the last workday of the pay period. In the second 

situation, the county pays officials and employees in advance for services that have not yet been 

rendered. We conclude that the payment is constitutionally permissible in the first situation, but that 

payment in advance in the second situation is constitutionally questionable. 

In the first situation, where officials and employees are paid after they have rendered all 

services for which they will be compensated, the county, as employer, does not gratuitously grant 

public funds nor lend public credit. The county has received the full measure of services it is due 

in consideration of the salaries. Cj: TEX. GOV’T CODE ANN. 5 662.010 (Vernon Supp. 1999) 

(restricting holiday payment to state employee whose first day is day after holiday or whose last day 

is day before holiday). Consequently, neither article III, section 52 nor article XI, section 3 applies, 

and the county need not articulate a public purpose for the preholiday payment. 

In the second situation, the county may unconstitutionally be granting public funds to a 

private individual with no public purpose. An advance of salary is a loan, a grant of public money 

to an individual. See Hill County v. Bryant & Huffman, 264 S.W. 520,522 (Tex. Civ. App.-Waco 

1924) affd inpertinentpart, 16 S.W.2d 513,516 (Tex. 1929); Tex. Att’y Gen. Op. Nos. JIM-1 194 

(1990) at 2, H-74 (1973) at 10. As this office suggested in Attorney General Opinion H-74, typically 

“[a] person’s salary . is his to do with as he wishes. It cannot be advanced to him by the agency 

because the advance would then constitute a personal loan to him of public funds to be used for 

private purposes.” Tex. Att’y Gen. Op. No. H-74 (1973) at 10. Under article III, section 52 of the 
The Honorable James Warren Smith, Jr. - Page 5 (X-0080) 

Texas Constitution, a commissioners court may not grant an advance of salary solely to benefit an 

individual. See Grimes v. Bosque County, 240 S.W.2d 5 11,5 14 (Tex. Civ. App.-Waco 195 1, writ 

ref d n.r.e.). 

Nevertheless, it is for the commissioners court to determine whether, in a particular situation, 

early payment of salaries serves a public purpose. The commissioners court also must determine that 

the early payment is sufficiently conditioned to ensure that the public purpose will be accomplished. 

The commissioners court’s determinations may be subject to judicial review. 
The Honorable James Warren Smith, Jr. - Page 6 (JC-0080) 

SUMMARY 

Neither article III, section 52 nor article XI, section 3 of the 

Texas Constitution precludes a county commissioners court from 

paying a county official’s or county employee’s registration fee to 

attend a conference, or for lodging while the official or employee 

attends the conference, so long as the commissioners court 

determines that the expenditures will serve a public purpose and 

attaches conditions to the expenditure to ensure the accomplishment 

of the public purpose. Likewise, neither article III, section 52 nor 

article XI, section 3 prohibits a county from paying a publisher in 

advance to publish public notices in the local newspaper, so long as 

the county commissioners court determines that the expenditure 

serves a public purpose and attaches sufficient conditions to the 

expenditure. A county commissioners court may pay officials and 

employees’ salaries before the regularly scheduled payday if the 

county has received all services it is due in consideration of the 

payment. But the county may not, under article III, section 52 and 

article XI, section 3 of the Texas Constitution, pay officials and 

employees’ salaries in advance of the services being rendered unless 

it finds that some public benefit will derive from doing so and that the 

early payment is sufficiently conditioned to ensure that the public 

purpose will be accomplished. 

Yo very truly, 

4 ( G-k cn 

Y-- 

JOHN CORNYN 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General