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## Qexae DAN MORALES October 25.1993 ATTORNEY GENERAL HonorableNathan 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 dispositionof salvageor surplusproperty by a commissionerscourt of a county. As it did prior to amendment, section 263.152 authorizes a commissionerscourt to sell such property by competitivebid or auction, Local Gov’tCode 8 263.152(a)(l), or to o&r the property as a trade-in for new property, id. 5263.152(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 commissionerscourt undertakes to sell that property under Subdivision (1) and is unable to do so because no bids are made. Id.5263.152(a)(3).

Section 263.155 of the Local Government Code requires a conunissionerscourt to keep records of property disposedof pursuant to this provisionfor 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 Constitutionwhichprovidesin pertinentpart:

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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thing of value in aid of, or to‘ any hrdividt& association or corporation whatsoever. Tex. Const. art. III, 5 52(a). As explainedbelow, we believethat House Bii 2087 on its face does not run afoul ofthis provision. First, article III, section 52 prohibitsthe legislaturefrom autborising a county to
“grant
. . a thing of value.” House Bii 2087 authorizes county commissionersto donate

“salvage” or “surplus” property only. Under the relevant subchapter of the Local GovernmentCode, “salvageproperty” 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 obsoletethat it has no value for the purpose for which it was oliginallyintended. Local Goti Code 8 263.i51(1). “Surplusproperty” means property that is not Currently needed by its owner, is not requiredfor the owtiet’ s foreseeableneeds, 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 commissionerscourt to donate such property only if it has tried and been unableto sellthe property because no bids have been made. For this reason, the property is also of no value to the county for resale purposes. Assumingthat an item of property is of no use or resalevalue to the county, we do not believethat 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 amenableto the opinionprocess. Even if an item of salvage or surplus property is of some nominal use or value to the county, we do not believethat disposingof it by donating it in accordancewith House Bii 2087 will run afbul of articleIII, section 52. if certain conditionsare met. In Attorney General Opiion MW-373 (1981). this ofllce consideredwhether the University of Texas could provide office space, utilities, and telephone service to the University of Texas Law SchoolFoundation, a nonprofitcorporation. This officeconcludedthat the university had the statutory authority to provide the foundation with these items as “terms and conditions”attached to the foundation’ s donationsunder section 65.31(e) of the Education Code, and themconsideredwhether this arrangementwould 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 constitutionalprohibition

requires that a grant by the universityto the foundationmust 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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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 relievingthe 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 constitutionalrequirementsis a question offact. 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 definitionof “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 nominalvalue to the wunty, the county wmmissioners should ensure that the donation serves a publicpurpose and is accompaniedby adequate consideration. 

### SUMMARY House Bill 2087, whichamendsLocal 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 unableto sellby competitivebid 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 publicpurpose for adequate consideration.

DAN MORALES Attorney General of Texas

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WILLPRYOR Fii AssistantAttorney General MARYKELLER Deputy Attorney Oemeral for Lit&ion RENEAHICKS State Solicitor MADELEINEB. JOHNSON Chair, Opiion Committee Pmpared by Mary R Grouter AssistrntAttO~OUKMl

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