### ATTORNEYGENERALOFTEXAS GREG ABBOTT

February 27,2004

The Honorable Matt Bingham Opinion No. GA-01 58 Smith County Interim Criminal District Attorney 100 North Broadway, 4th Floor Re: Whether a county may place on countyTyler, Texas 75702 owned vehicles a decal, trademark, or logo advertising aprivate business in exchange for money from the business (RQ-0095-GA)
Dear Mr. Bingham: On behalf of Smith County (the “County”), your predecessor asked whether a county may place on a county-owned vehicle a decal, trademark, or logo advertising a private business in exchange for money from the business.’ He explained that the County Sheriff has proposed apolicy under which the County would accept money from private businesses to purchase law enforcement vehicles in exchange forplacing advertisements for those businesses on certain external areas ofthe vehicles. See Request Letter, supra note 1,at 1.

Under [the] program, once alocal business makes adonation for the purchase of a “Police Package Vehicle” for the use of the Sheriffs Office, [the] County would purchase a vehicle according to the normal bidding process for county purchases. The County would then imprint the business’ decal, logo, ortrademark on the vehicle for aperiod not less than three years. At the end ofthe three year period, [the] County would be free to remove the advertisements with no further obligations to the donor. However, should the vehicle be wrecked or otherwise taken out of service prior to the expiration of the three year period, [the] County would be obligated to identically mark areplacement vehicle for the remainder ofthe three year period. Id. According to the request letter, the sheriffs office would have the authority to approve the form and substance of all advertisements, and the County would adopt a policy limiting the size and placement of the advertisements. See id. at 2. Advertisements could be placed on only three locations on the vehicle-one on each rear quarter panel and one on the rear trunk lid-and the size

‘See Letter from Honorable Jack Skeen, Jr., Smith County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (Aug. 15,2003) (on file with Opinion Committee) [hereinafter Request Letter].The Honorable Matt Bingham - Page 2 (GA-0158)

of the ads would be strictly limited. See id. at l-2. No more than one advertisement would be allowed per location, but there might be an advertisement on each location. See id. at 2. “[Tlhe advertisements would not be allowed to cover, obliterate, orconceal any law enforcement markings on the vehicle.” Id. at 2. At some points, the request letter refers to the money that would be received from aprivate business as a donation, see id. at 1, and at other points, the request letter suggests that the money would be a lease payment, see id. at 3. This office cannot determine the precise nature of the transaction because of the fact issues involved. See Tex. Att’y Gen. Op. Nos. GA-0078 (2003) at 2 (stating that this office does not construe particular contracts), JC-0443 (2001) at 1(stating that whether aparticular donation is in fact arefund is a fact question that an opinion cannot resolve); see also Bullock v. Citizens Nat ‘IBank, 663 S.W.2d 923, 924 (Tex. App.-Austin 1984, no writ) (stating that acourt must examine all the facts to ascertain whether aparticular transaction is a sale or a lease). Nevertheless, “a donation is nothing more nor less than a gratuity-that which is bestowed without receipt or expectation of anything in return”-it is not something “yielded up pursuant to contract and inreturn for avaluable consideration.” Barrington v. Cokinos, 339 S.W.2d 330,334 (Tex. Civ. App.-Beaumont), aff ’d, 338 S.W.2d 133, 141 (Tex. 1960). Section 72 1.004 ofthe Transportation Code requires acounty to print the county’s name on its motor vehicles: (a) The office having control of a motor vehicle or piece of

heavy equipment owned by a . . .county shall have printed on each side ofthe vehicle or equipment the name ofthe

.. .county, followed by the title of the department or office having custody of the vehicle or equipment. (b) The inscription must be in a color sufficiently different from the body of the vehicle or equipment so that the lettering is plainly legible. (c) The title of the department or office must be in letters plainly legible at a distance of not less than 100 feet. TEX. TRANSP.CODEANN. 8721.004 (Vernon 1999). A county commissioners court may exempt from these requirements “an automobile when used to perform an official duty by a . . . sheriffs office,” id. 8721.005(b)(l)(B) (Vemon Supp. 2004), an exemption that was apparently intended not to permit asheriff to print more information on the vehicles, but to permit a sheriffs department to use unmarked vehicles. See Act of May 11, 1959, 56th Leg., RX, ch. 235, 9 1, 1959 Tex. Gen. Laws 531,532 (“Provided

...that the provisions ofthis Section shall not apply to automobiles used by..

. sheriffs’ departments, which shall be unmarked at the discretion of the sheriff.

. . .“). Attorney General Letter Opinion 97- 112 construed section 72 1.004 to provide an exclusive list of the information that a county could print on its vehicles. See Tex. Att’y Gen. LO-97-l 12, atThe Honorable Matt Bingham - Page 3 (GA-0158)

l-2. The requestor asked whether a county vehicle could be inscribed with an elected official’s name. See id. at 1. Reasoning that “effect and meaning [must] be given to [a statute’s] every sentence, clause, phrase, and word” and that section 721.004 “does not specifically permit the inscription of an elected county official’s name on acounty-owned vehicle,” the opinion concluded that “there is no authority to inscribe a county official[‘]s name on the vehicle.” Id. at l-2. The opinion thereby construed section 721.004(a) to provide that acounty must print “on each side of’ acounty-owned vehicle only “the name ofthe

. . .county, followed by the title ofthe department or office having custody of the vehicle.” Id.; see TEX.TRANSP.CODEANN. 8 721.004(a) (Vernon 1999). Your predecessor suggested that Letter Opinion 97-l 12 incorrectly construes section 721.004. See Request Letter, supra note 1, at 2. He proposed, instead, that section 721.004 sets “minimum standards foridentification ofcounty vehicles” and does not provide an “exhaustive list.” Id. at 3. Despite the letter opinion’s conclusion, your predecessor stated, “county law enforcement and emergency vehicles routinely include such items as 911 emergency emblems, crime stoppers decals, and vehicle numbers on the vehicles.” Id. Moreover, although section 721.002 of the Transportation Code similarly requires state-owned motor vehicles to “have printed on each side

. . .the word ‘Texas,’ followed by the title ofthe state agency having custody of the vehicle,” TEX. TRANSP.CODEANN. 9721.002(a) (Vernon 1999), your predecessor stated that the phrase “State Trooper” is printed on each side and the rear trunk portions of Texas Department of Public Safety vehicles. See Request Letter, supra note 1,at 3. In our opinion, Letter Opinion 97-l 12 incorrectly concludes that section 721.004 provides an exclusive list ofthe items that may be printed on acounty-owned vehicle. The section does not, on its face, indicate that it is exclusive. See TEX.TRANSP.CODEANN. 8721.004 (Vernon 1999). While itistrue that acourt must give “effect and meaning

. ..to [a statute’s] every sentence, clause, phrase, and word,” itis also true that acourt must presume that “every word excluded from astatute” was “excluded for a purpose.” Cameron v. Terre11& Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). Consequently, a court should insert additional words into a statute “[olnly when it is necessary to give effect to the clear legislative intent.” Office oftheAttorney Gen. v.Lee, 92 S.W.3d 526,529 (Tex. 2002) (quoting Cameron, 618 S.W.2d at 540). We believe the legislature intended section 721.004 to ensure that a county-owned vehicle generally is identifiable as such, but the legislature did not intend to exclusively list what acounty could print on its car. The act by which the legislature originally adopted the substance of section 721.004 indicates that the legislature was concerned about insufficiently marked county-owned vehicles that members ofthe public could not identify as county-owned. See Act ofMay 11, 1959,56th Leg., R.S., ch. 235, 0 2, 1959 Tex. Gen. Laws 531,532 (“The fact that there isno present provision compelling identification of.

. .countyowned vehicles asthere is for state-owned vehicles creates an emergency. . . .“). The substance of section 72 1.002, which provides for inscriptions on state-owned vehicles, was similarly adopted so that members ofthe public could identify the cars: “The fact that motor vehicles owned by the State of Texas are being driven upon the streets of towns and cities and upon public highways with inscriptions so nearly the color of the body of the car that such inscriptions are visible for avery short distance creates an emergency. ...” See Act approved May 26,193 1,42d Leg., R.S., ch. 219, 82,193l Tex. Gen. Laws 373,373. Because inserting the word “only” isnot necessary to effectuateThe Honorable Matt Bingham - Page 4 (GA-0158)

aclear legislative intent, Attorney General Letter Opinion 97-l 12incorrectly construes the statute, and we overrule this construction. We need not revisit here, however, the opinion’s ultimate conclusion: “An elected official may not inscribe his or her name on a county-owned motor vehicle.” Tex. Att’y Gen. LO-97-l 12, at 2 (Summary). Accordingly, section 721.004 lists the minimum types of identifying marks that must be printed on acounty-owned vehicle that isnot exempt under section 721.005, but itdoes not provide an exclusive list. Other marks may be placed on the vehicles, but if the other marks obscure the identifying marks or make identification difficult for the public, section 721.004’s intent has been violated. Thus, nonrequired inscriptions may not obscure the identifying marks required by section 72 1.004 or make the vehicle’s county-owned status difficult to ascertain. Moreover, the commissioners court exercises ultimate authority over the content, design, or placement of any particular decal. The sheriffs vehicles belong to the county, which acts through its commissioners court. SeeJackv. State, 694 S.W.2d 391,397 (Tex. App.-San Antonio 1985, writ ref dn.r.e.); Tex. Att’y Gen. Op. No. JC-02 14 (2000) at 5. Nevertheless, we conclude that a county may not place on a county-owned vehicle an advertisement for aprivate business. Texas law iswell-established on this point: A commissioners court’s authority is limited to those powers conferred either expressly or by necessary implication from the constitution and laws ofthis state. See Guynes v. Galveston County, 861 S.W.2d 861,863 (Tex. 1993) (citing Canales v.Laughlin, 214 S.W.2d 45 1,453 (Tex. 1948)); Tex. Att’y Gen. Op. No. GA-0085 (2003) at 2 (quoting Guynes, 861 S.W.2d at 863); see also TEX. CONST.art.V, 8 18(b); Jack, 694 S.W.2d at 397 (citing Childress County v. State, 92 S.W.2d 1011, 1016 (Tex. 1936); Wilson v. Calhoun County, 489 S.W.2d 393,397 (Tex. Civ. App.-Corpus Christi 1972, writ ref d. n.r.e.)). A county’s authority to convey its property, by sale, lease, or exchange, is strictly circumscribed by statute. Chapter 263 of the Local Government Code provides generally for a county’s sale or lease of property. TEX.LOC.GOV’T CODEANN. ch. 263 (Vernon 1999 & Supp. 2004). Acounty has specific general authority to sell or lease itsreal property (1) atapublic auction, see id. $ 263.001(a) (Vernon 1999); (2) through a sealed-bid procedure, see id. 9 263.007(a), (f) (Vernon Supp. 2004); or (3) under a contract with abroker, see id. 9263.008(b). Conveyances of certain types of real property must occur in accordance with particular statutes, however. For example, a county’s sale or lease of abandoned seawall or highway property must comply with section 263.002 ofthe Local Government Code, and airport land must be leased in compliance with section 263.05 1. See id. $9 263.002, .05 1 (Vernon 1999); see also TEX. GOV’T CODEANN. $3 1477.070(a), .119 (Vernon 2000) (authorizing a county to “sell, deliver, and distribute” certain water or natural gas to amunicipality, political subdivision, or private entity). A county may sell, exchange, destroy, or donate its salvage or surplus property only in accordance with chapter 263, subchapter D of the Local Government Code. See TEX.Lot. GOV’T CODEANN. 9263.152(a) (Vernon Supp. 2004). But no statute authorizes a county to lease its personal property. We must consequently conclude that acounty has no authority to place decals advertising private businesses on county-owned vehicles in exchange for apayment from the business.The Honorable Matt Bingham - Page 5 (GA-0158)

SUMMARY Section 721.004 ofthe Transportation Code provides alist of the minimum types of identifying marks that must be printed on a nonexempt county-owned vehicle. Attorney General Letter Opinion 97- 112’s construction of section 721.005 is overruled. Inscriptions other than those described in section 72 1.004 may be printed on acounty-owned vehicle, but they may not obscure the required identifying marks or make identification of the vehicle difficult.A county has no authority to place decals advertising private businesses on county-owned vehicles inexchange for apayment from the business.

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee