@ffice of tije 2Utornep Qheral 

&date of Qexae 

DAN MORALES October 25.1993 

ATTORNEY GENERAL 

Honorable Nathan B. Bheinlander Opiion No. DM-268 

comal county Attorney 

150NorthSeguin,Suite318 Be: Whether House Bii 2087 violates 

New Braunfels, Texas 78130-5113 article JII, section 52 of the Texas Consti- 

,tution (lQ592) 

Dear Mr. Rheinhder: 

You ask whether House Bii 2087 violates article Ill, section 52 of the Texas 

Consthution. House Big 2087, which was recently enacted by the legislature, see Acts 

1993, 73d Leg., ch. 237 (eff Aug. 30, 1993), amends section 263.152 of the Local 

Government Code. Chapte-r 263, subchapter D of the Local Government Code governs 

the disposition of salvage or surplus property by a commissioners court of a county. As it 

did prior to amendment, section 263.152 authorizes a commissioners court to sell such 

property by competitive bid or auction, Local Gov’t Code 8 263.152(a)(l), or to o&r the 

property as a trade-in for new property, id. 5 263.152(a)(Z). Section 263.152(a)(3) 

spedicfdly authorizes a court to 

order any of the property to be destroyed or otherwise disposed of as 

worthless ifthe commissioners court undertakes to sell that property 

under Subdivision (1) and is unable to do so because no bids are 

made. 

Id. 5 263.152(a)(3). Section 263.155 of the Local Government Code requires a 

conunissioners court to keep records of property disposed of pursuant to this provision for 

one year. 

House Bii 2087 amended section 263.152 by adding subsection (c) which 

provides as follows: 

The commissioners court may dispose of property under 

Subsection (a)(3) by donating the property to a civic or charitable 

organimtion located in the county. 

You are concerned that this provision runs afoul of article III, section 52 of the Texas 

Constitution which provides in pertinent part: 

jT]he Legislature shall have no power to authorize any 

county. . . of the State to lend its credit or to grant public money or 

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Honorable Nathan B. Rheinlander - Page 2 (DM-268) 

thing of value in aid of, or to‘ any hrdividt& association or 

corporation whatsoever. 

Tex. Const. art. III, 5 52(a). As explained below, we believe that House Bii 2087 on its 

face does not run afoul of this provision. 

First, article III, section 52 prohibits the legislature from autborising a county to 

“grant . . a thing of value.” House Bii 2087 authorizes county commissioners to donate 

“salvage” or “surplus” property only. Under the relevant subchapter of the Local 

Government Code, “salvage property” means: 

personal property, other than items routinely discarded as waste, that 

because of use, time, accident, or any other cause is so worn, 

damaged, or obsolete that it has no value for the purpose for which it 

was oliginally intended. 

Local Goti Code 8 263.i51(1). “Surplus property” means property that is not Currently 

needed by its owner, is not required for the owtiet’s foreseeable needs, and possesses some 

usehlness for the purpose for which it was intended. Id. 8 263.151(2). Obkusly, 

“salvage” or “surplus” property is generally property which is of little or no use to the 

county. Furthermore, House Bii 2087 authorizes a county commissioners court to donate 

such property only if it has tried and been unable to sell the property because no bids have 

been made. For this reason, the property is also of no value to the county for resale 

purposes. Assuming that an item of property is of no use or resale value to the county, we 

do not believe that article III, section 52 prohibits a county from donating it to a civic or 

charitable organization. Of course, the determination whether a particular item of 

property is truly of no use or resale value to the county would involve the resolution of 

factual issues and therefore is not amenable to the opinion process. 

Even if an item of salvage or surplus property is of some nominal use or value to 

the county, we do not believe that disposing of it by donating it in accordance with House 

Bii 2087 will run afbul of article III, section 52. if certain conditions are met. In Attorney 

General Opiion MW-373 (1981). this ofllce considered whether the University of Texas 

could provide office space, utilities, and telephone service to the University of Texas Law 

School Foundation, a nonprofit corporation. This office concluded that the university had 

the statutory authority to provide the foundation with these items as “terms and 

conditions” attached to the foundation’s donations under section 65.31(e) of the Education 

Code, and them considered whether this arrangement would violate article III, section 51, 

the legislative counterpart of section 52(a). Attorney General Opiion MW-373 at 8-l 1. 

The opinion stated that the constitutional prohibition 

requires that a grant by the university to the foundation must serve a 

public purpose, appropriate to the kction of a university, and that 

adequate consideration must flow to the public. . In addition, the 

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Honorable Nathan B. Rheiniander - Page 3 (DM-268) 

university must maintain some wntrols over the foundation’s 

activities, to ensure that the public purpose. is actually 

achieved. . If these wnditions are met, the grant by the public 

entity is not unwnstitutional. 

Id. at 9. 

We believe that it is possible that the donation of salvage or surplus property 

pursuant to House Bill 2087 wuld serve a public purpose and be acwmpanied by 

adequate consideration. For example, the donation of a large piece of surplus county 

equipment to an organktion which agreed to haul it could serve the public purpose of 

disposing of the property. In addition, by relieving the county of the expemes it would 

incur in disposing of the item, such as transportation costs and disposal fses, the 

agreement to haul it could constitute adequate consideration. Again, whether the 

donation of a particular item of salvage or surplus property pursuant to House Bill 2087 

meets these constitutional requirements is a question of fact. 

Given the potential wnstitutional pitfalls, county wmmissioners should take 

special care to ensure that the donation of property pursuant to the new law does not run 

afoul of article III, section 52 of the Texas Constitution. Fii, the wunty commissioners 

should ensure that the property meets the definition of “salvage” or “surplus” property set 

forth in section 263.151 of the Local Government Code. Second, the county 

wmmissioners should make a good faith effort to se4 the property by competitive bid or 

auction pursuant to subsection (a)(l) of section 263.152. Finally, if the property has even 

some very nominal value to the wunty, the county wmmissioners should ensure that the 

donation serves a public purpose and is accompanied by adequate consideration. 

SUMMARY 

House Bill 2087, which amends Local Govemment Code section 

263.152 to authorize a county wmmissioners wurt to donate to 

civic or charitable organizations salvage and surplus property that it 

has been unable to sell by competitive bid or auction, does not on its 

he. violate article III, section 52 of the Texas Constitution. The 

donation of a particular item may run afoul of this wnstitutional 

prohibition if the property is of value to the county and it is not 

donated for a public purpose for adequate consideration. 

DAN MORALES 

Attorney General of Texas 

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Honorable Nathan B. Rheinhder - Page 4 (DM-268) 

WILL PRYOR 

Fii Assistant Attorney General 

MARYKELLER 

Deputy Attorney Oemeral for Lit&ion 

RENEAHICKS 

State Solicitor 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Pmpared by Mary R Grouter 

AssistrntAttO~OUKMl 

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