Hon. Charles E. Hughes

CountyAttorney Bowie County Texarkana, Texas OpinionNo. C-779
Re: Whether the commissioners courtmay expend county funds to pay for telephone servicebetween the offices of the county and district clerks at the county seat and the Texarkana Telephone Exchange. Whether the District Clerk of Bowie County is authorized to establish andmaintain a full time branch office Dear Mr. Hughes: in the City of Texarkana.

In two letters to this officeyou have requested opinions in regard to the above referencedmatters. Two questions are involved,which may be stated as follows:

(1) May the CommissionersCourt of Bowie,County expend county funds to pay for telephone servicebetween the offices of the county and district clerks at the county seat and the Texarkana Telephone Exchange, thereby allowingmembers of the public as well as county officials tomake direct telephone calls, not subject to long distance charges,between Texarkana and the offices of the county and district clerks at the county seat in Boston, Texas?

(2) May the District Clerk of Bowie County establish andmaintain a full time branch office in the,City of Texarkana?

The following constitutionaland statutoryprovisions are applicable to discussion of your first question. Article XVI, Section 6, of the Texas Constitutionprovides:,

“sec. 6. No appropriation for private or individualpurposes shallbe made. A regular

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statement,under oath, and an account of the receipts and expenditures of all publicmoney shall be published annually,,in suchmanner as shallbe prescribedby law. Article 2351,Vernon's Civil Statutes,provides in part as follows:

"Each commissioners court shall: "1.
. . . "7. Provide and keep in repair court houses, jails and all necessarypublic buildings. 11'

. . . "10. Audit and settle all accounts against the county and direct their payment. "

. . . "15. Said court shall have all such other powers and jurisdiction,and shall perform all such other duties, asnare now ormay hereafter be prescribedby law.
part that:

Article 3899b,Vernon's Clvil Statutes,provides in

'Section 1. There shallbe allowed to County Judges, Clerks of the District and County Courts, Sheriffs, County Treasurers, Tax Assessors and Collectors, such books, stationery, including blank bail bonds and blank complaints,and office furniture as may be necessary for their offices, to be paid for on the order of the Commissioners Court out of the County Treasury; and suitable offices shall also be provided by the Commissioners Court for said officers at the expense of the county. And such books and stationeryas are necessary in the performance of their duties shall also be furnished Justices of the Peaceby said Commissioners Court. Provided all purchases hereinmust be approved by CommissionersCourt, andmust be made under the provisions of Article 1659, Revised Civil Statutes of Texas, 1925."

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Article XVI, Section 6, of the Texas Constitutionquoted above prohibits the expenditure of public funds for'private or individualpurposes. The fact that such private or individual purposesmay incidentallybe servedas a result of publicmoneys being spent on public purposesdoes not automaticallyplace the expenditureunder the ban of Article XVI, Section 6. The Supreme Court of Texas in the case of Barrington v. Cokinos, stated:

n .On the other hand an expenditure for the direct accomplishment of a legitimatepublic and municipal purpose is not renderedunlawful by the fact that a prfivately ownedbusinessmay be benefited thereby. 1960). 338 S.W.2d 133, 140 (Tex.

A county commissioners court clearlyhas the authority under those portions of Articles 2351 and 3899b, ~quotedabove, to provide telephone service for the clerks of the district and county courts. Whether or not such service shouldbe provided is a matter within the discretion of the commissionerscourt.

. . .The presumption is in favor of the validity of the act or order of the commissioners' court, its jurisdiction." when thematter is within cited). 15 Tex.Jur.2d 276, Counties El 47 (and cases

The fact that the proposed telephone service in this casewould cost $185.00 permonth as opposed to present long distance charges of $20.00per month would not in itselfbe sufficient to say that as amatter of law the commissioners court would be abusing its discretion If It decided on themore expensive service. Thia office cannot Interpose its judgment on a matter solelywithin the discretion of a commissioners court. The following statutoryprovisions are applicable to discussion of your second question. Article 1605,Vernon's Civil Statutes,provides in part that:

"The CountyJudge, Sheriff, Clerks of the District and of the County Courts, County Treasurer,Assessor and Collector of Taxes, County Surveyor and CountyAttorney of the several counties of this State, shall keep their offices at the coFfntyseats of their respective counties;

. . . Article 199 (5),Vernon's Civil Statutes,provides in part as follows:

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” .providedthat the District Clerk of Bowie County or his deputy shallwait upon said Courtwhen sitting at Texarkana, Texas, and shall be permitted to transfer all necessary books, minutes and records to Texarkana,Texas, while the Court is in session there; and likewise to transfer all neceS and papers from T'e Texas,,,at the end Texas. Article 199 

### ( in part as follows: sarybooks,minutes, records xarkana, Texas, to Boston, of each session in Texarkana,
102),, Vernon's Civil Statutes,provides

1, .providedthat the District Clerk of Bowie County or his deputy shall waitupon said Court when sittingat Texarkana, Texaa, and shallbe permitted to transfer all necessary books,minutes, records and papers to Texarkana, Texas, while the Court is in session there; and likewise to transfer all necessary books, minutes, records and papers from Texarkana, Texas, to Boston, Texas, at $he end of each session in Texarkana, Texas. Article 1605, Vernon's Civil Statutes, quoted above, 5s the general law regulating the location of the offices of the clerks of district courts. This Article provides that such offices shallbe located in the county seats of the respective counties. Article 199 (5) and Article 199 (102),Vernon's Civil Statutes,provide that the District Clerk of Bowie County or his deputy shall,,be permitted to wait upon a district colrt when such court is sittingat Texarkana, Texas, and furtherprovide that-the district clerk shallbe pe&fitted to transfer any necessarydocuments to Tex%rkana, Texas,
. . . while the court is In session there;

. . .

Article 139 (5) provides that the District Cturts of the 5th Judicial District shallhave the authority to
. . . sit at any time in Texarkana, Texas, to try, hear and determine any civil and criminalnonjury case, andmay hear and determine motions, argumentsand such other nonjury civil and criminal matters as may comebefore the Court;
. . . Article 199 (102) gives identicalauthorlty to the District Courts of the 102nd Judicial District. Those portions of Articles199 (5) and Article 199 (102)quoted above which allow the district clerk to "wait upon said Court when sittingat Texarkana, Texas,
. . .' cannot properly be interpretedas blanket exceptions to the provisions
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$f Article 1605, Vernon's Civil Statutes,which provide

. . .Clerksof District , . ,Courts,
. . . shallkeep that the their offices at the county seats of their respective counties;

. . .n The purpose of these provisions Is quite obviously to give authority to the district clerk to perform such of his functionsas are necessary and complementary to the performanceby the respective district courts of those functionswhich these courts may perform in Texarkanapursuant to the authoritygranted to these courtsby the provisions of Article 199 (5) and Article 199 (102) of Vernon's Civil Statutes. No other interpretation of these provisionswould be compatiblewith any accepted rules of statutory construction. SUMMARY It is within the discretion of the Commissioners Court of Bowie County to determine whether or not to expend county funds to pay for telephone servicebetween Texarkana and the offices of the county and distriat clerks at the county seat. The District Clerk of Bowie Countymay not establish andmaintain a full time branch office in the City of Texarkana.
Yours very truly, WAQGONER CARR Attorney General

LEBjr:ra:mkh By; Lewis E. Berry, Jr. Assistant
APPROVED: OPINION COMMITTEE
Pat Bailey, Chairman John Reeves Harold Kennedy Bob Flowers APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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