_r OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN C~RNYN 

December 3’2001 

The Honorable David M. Motley 

Kerr County Attorney 

Kerr County Courthouse, Suite BA-103 

700 Main Street 

Kerrville, Texas 78028 

Opinion No. JC-0439 

Re: Whether statutes cited in various contracts 

under which Kerr County has transferred funds to 

certain nonprofit entities authorize the County to 

make the transfers (RQ-039%JC) 

Dear Mr. Motley: 

You question Kerr County’s authority to transfer county funds to various nonprofit 

organizations, each of which “serve[s] children’s needs.“’ You state that Kerr County (the 

“County”) “has been annually funding several non-profit entities” in accordance with contracts that 

specify the amount of funds, the nonprofit entity’s obligations to the County, “the performance 

standards[,] and the right to inspect financial records to ensure compliance with the contract.“2 A 

county may exercise those powers explicitly or implicitly conferred upon it by statute. See Tex. 

Att’y Gen. Op. No. JC-0171 (2000) at 1. Article III, section 52 of the Constitution bars a transfer 

of county funds to a private entity unless the transfer serves a public purpose of the county and the 

transfer is subject to adequate controls, contractual or otherwise, to ensure that the public purpose 

is accomplished. See TEX. CONST. art. III, 8 52; Tex. Att’y Gen. Op. No. JC-0335 (2001) at 6. You 

doubt that these expenditures serve any “public purpose tied to [a county’s] express or implied 

powers, ” with the possible exception of the County’s authority under section 8 1.027 of the Local 

Government Code to “provide for the support of paupers, residents of [the] county, who are 

unable to support themselves.” Request Letter, supra note 1, at 4; see TEX. Lot. GOV’T CODE ANN. 

9 81.027 (Vernon Supp. 2001). 

We conclude that, with respect to the nonprofit organizations and contracts to which you 

refer, the statutes cited in the contracts generally appear to provide the County with sufficient 

authority to make the expenditures of public funds, with a few exceptions. We assume that the Kerr 

County Commissioners Court has determined, with respect to each of the expenditures you mention, 

that the expenditure serves a public purpose and that adequate controls are in place to ensure that the 

public purpose will be accomplished. Whether a particular expenditure of public funds serves a 

public purpose is typically an issue for the commissioners court to resolve in the first instance. See 

‘See Letter from Honorable David M. Motley, Kerr County Attorney, to Honorable John Comyn, Texas 

Attorney General at 2 (June 22,200l) (on file with Opinion Committee) [hereinafter Request Letter]. 

21d. 
The Honorable David M. Motley .- Page 2 (JC-0439) 

Tex. Att’y Gen. Op. Nos. JC-0239 (2000) at 4 (stating that public officeholder must determine in 

first instance whether particular office closure serves public purpose); DM-3 17 (1995) at 4 

(concluding that whether county commissioners court may expend county funds to pay travel 

expenses of applicant for pathologist position is determination for commissioners court in first 

instance); Tex. Att’y Gen. LO-96-028, at 3 n.2 (suggesting that commissioners court may determine 

in first instance whether travel allowance and in-kind reimbursement for county commissioner serves 

public purpose). 

A county commissioners court may exercise only those powers that the state constitution and 

statutes confer upon it, either explicitly or implicitly. See Tex. Att’y Gen. Op. No. JC-0171 (2000) 

at 1. Moreover, a county commissioners court exercises powers and jurisdiction only over “county 

business” as conferred by law. TEX. CONST. art. V, 5 18(b). A commissioners court thus does not 

have power to accomplish something that is not county business. See id.; Tex. Att’y Gen. Op. No. 

JC-0036 (1999) at 6. The phrase “county business” has been broadly construed “to encompass 

matters of general concern to county residents.” Tex. Att’y Gen. Op. No. JC-0036 (1999) at 6. 

Article III, section 52 and article XI, section 3 of the Texas Constitution proscribe gratuitous 

transfers of public funds to private entities. See TEX. CONST. art. III, 5 52; id. art. XI, 5 3. A county 

is not prohibited from contracting with a private nonprofit corporation to provide services that the 

county is authorized to provide so long as the county receives adequate consideration. See Tex. 

Att’y Gen. Op. No. JC-0335 (2001) at 7. The constitution limits a county’s authority to grant public 

funds to a private nonprofit corporation to only those situations where the grant serves a public 

purpose that the county is authorized to accomplish and is subject to adequate controls, “contractual 

or otherwise, to ensure that the public purpose is accomplished.” Id.; see TEX. CONST. art. III, 5 52; 

id. art. XI, 8 3; see also id. art. VIII, 8 3 (directing that taxes be collected “for public purposes 

only”). A transfer for a public purpose is constitutionally permissible even if a private interest 

benefits incidentally. See Barrington v. Cokinos, 338 S.W.2d 133,139 (Tex. 1960). A contract that 

imposes on the nonprofit organization an obligation to perform a function that benefits the public 

may provide adequate control. See Key v. Comm ‘rs Court ofMarion County, 727 S.W.2d 667,669 

(Tex. App.-Texarkana 1987, no writ) (per curiam). 

You are particularly concerned about the County’s authority to transfer county funds to six 

organizations: Court Appointed Special Advocates (CASA); Hill Country Crisis Council; Kids’ 

Advocacy Place; K’Star; Big Brothers and Sisters; and Families & Literacy, Inc. Request Letter, 

supra note 1, at 3-4. We have received and examined copies of the County’s contracts with each of 

these entities, although we do not construe them because of the fact issues involved. See Tex. Att’y 

Gen. Op. Nos. JC-0395 (2001) at 2; JC-0032 (1999) at 4; DM-383 (1996) at 2; DM-192 (1992) at 

10. We will summarize what we perceive to be the pertinent features of each of the contracts at 

issue. 

1. The County cites, in its contract with CASA, its authority under section 

264.006 of the Family Code. See CASA Contract at 1 (on file with Opinion 

Committee); see infra p. 5 (discussing section 264.006, Family Code). Under 

the contract, CASA, in consideration of $3,000 from the County, is bound 
The Honorable David M. Motley - Page 3 (JC-04 39 > 

to provide “guardians ad litem for use in” appropriate court cases relating 

to children, in accordance with a court order; and provides “family studies 

and . . . such other information gathering services” as the county courts 

request. CASA Contract at 2. 

2. The County cites as authority for its contract with Hill Country Crisis 

Council section 8 1.007 of the Family Code and section 5 1 .Ol 1 of the Human 

Resources Code. See Hill Country Crisis Council Contract at 1 (on file with 

Opinion Committee); see infra p. 7 (discussing section 8 1.007, Family Code 

and section 5 1 .Ol 1, Human Resources Code). The Hill Country Crisis 

Council, in consideration of $5,000 from the County, provides “[iIntake and 

referral services for qualified persons seeking family violence protective 

orders from the [county] attorney’s office; and . . . maintain[s] a ‘batterer’s 

intervention and treatment program’ designed to counsel and treat those 

who commit acts of family violence.” Hill Country Crisis Council Contract 

at l-2. 

3. The County cites as authority for its contract with Kids’ Advocacy Place 

sections 264.402 and 264.403 of the Family Code. See Kids’ Advocacy 

Place, Inc. Contract at 1 (on file with Opinion Committee); see infra pp. 5, 

6 (discussing sections 264.402 and .403, Family Code). Kids’ Advocacy 

Place, in consideration of $3,000 from the County, provides a facility where 

“children who are the victims of sexual and/or physical abuse and their nonoffending family members can go for evaluation, intervention, and 

counseling”; provides a forum for agencies and County professionals who 

work with abused children to “gather and work together in assisting victims 

and their families”; provides “a resource center for training and education in 

the area of child abuse and victimization”; provides a “warm, non-threatening 

environment in which the victims of child abuse and victimization and their 

families can work with law enforcement or protection services” to prepare for 

court appearances; and provides a location where local law enforcement 

agencies and others “may obtain evidence to be used to investigate and 

prosecute those accused of child abuse and neglect.” Kids’ Advocacy Place 

Contract at l-2. 

4. The County cites as authority for its contract with K’Star section 264.006 of 

the Family Code. See K’Star Contract at 1 (on file with Opinion Committee); 

see infra p. 5 (discussing section 264.006, Family Code). K’Star, in 

consideration of $5,000 from the County, provides short-term emergency 

shelter for youth “in need” or “at risk”; food, clothing, counseling, and 

education to youth “in need” or “at risk”; and facilities for residential 

placement of youth in need of protection or other assistance. K’ Star Contract 

at 1. 
The Honorable David M. Motley - Page 4 (JC-043% 

5. The County cites as authority for its contract with Big Brothers and Sisters 

section 264.006 of the Family Code. See Big Brothers and Sisters Contract 

at 1 (on file with Opinion Committee); see infra p. 5 (discussing section 

264.006, Family Code). Big Brothers and Sisters, in consideration 

for $3,000, provides to county residents “positive adult role models to 

children . . . from single-parent families” and “additional support to singleparent families by giving supplemental community resource referrals.” Big 

Brothers and Sisters Contract at 1. 

6. The County cites as authority for its contract with Families & Literacy, Inc. 

section 264.006 of the Family Code; county courts’ “authority under various 

provisions of the Texas Family Code to order family studies, order parent 

education, and pursue other matters designed to aid the courts in the exercise 

of their duties regarding the welfare of children”; and article 42.12, section 

1 l(c) of the Code of Criminal Procedure. See Families & Literacy, Inc. 

Contract at 1 (on file with Opinion Committee); see infra pp. 6’7 (discussing 

section 264.006, Family Code; section 107.05 1, Family Code; and article 

42.12, Code of Criminal Procedure). Families & Literacy, Inc. provides, in 

consideration of $2,000 from the County, “parent/family education for use 

by the [county] courts in appropriate cases relating to . . . juvenile 

delinquency”; family study courses to “improve individual interpersonal 

relationships of various family members involved in the” county courts; and 

information to county court judges necessary to assess a defendant’s 

educational skill level and to evaluate and place appropriate conditions upon 

a defendant’s supervision. Families & Literacy, Inc. Contract at 2. 

Your letter to this office lists none of the statutes that the contracts themselves cite. Without 

referencing these statutes, you suggest that the County has no express or implied authority to make 

the transfers, unless the authority fits under the County’s authority to provide for indigent residents 

under section 8 1.027 of the Local Government Code. See generally Request Letter, supra note 1; 

cf. also Act of May 8, 2001, 77th Leg., R.S., ch. 254, 4 1, 2001 Tex. Sess. Law Serv. 463 (to be 

codified as TEX. Lot. GOV’T CODE ANN. 8 38 1.004(b)(6), (f)) (purporting to authorize county to 

contribute county funds to comprehensive literacy program or children’s advocacy center “[t]o 

stimulate business and commercial activity in a county”). Section 8 1.027 simply authorizes a county 

commissioners court “to provide for the support of paupers, residents of their county, who are unable 

to support themselves.” TEX.LOC. GOV’TCODEANN. 8 81.027(Vemon Supp. 2001). You aver that, 

using its authority under section 8 1.027, a county might fund these six organizations in “two possible 

scenarios”: “Certain children could be classified as paupers under the right factual scenario. A 

pauper child might be one who has parents who are unable to provide necessary resources for him 

or one who does not have parents at all.” Request Letter, supra note 1, at 4. While we agree that 

the County’s authority to provide for paupers may encompass the authority to provide funds to these 
The Honorable David M. Motley - Page 5 (JC-0439) 

organizations in certain circumstances, we believe that the County has other, more direct statutory 

authority, such as that cited in the contracts. 

Section 264.006 of the Family Code, which is cited as authority for four of the contracts, 

expressly empowers a county to “provide for services to and support of children in need of 

protection and care without regard to the immigration status of the child or the child’s family.” TEX. 

FAM. CODE ANN. 8 264.006 (Vernon Supp. 2001); see Hill Country Court-Appointed Special 

Advocates (“CASA”) Contract, K’Star Contract, Big Brothers and Sisters Contract, Families & 

Literacy, Inc. Contract (all on file with Opinion Committee). Unlike section 8 1.027 of the Local 

Government Code, which pertains only to indigent county residents, section 264.006 of the Family 

Code does not tie providing services and support of children to those who are indigent but to those 

“in need of protection and care.” See TEX. FAM. CODE ANN. 8 264.006 (Vernon Supp. 2001); see 

TEX. Lot. GOV’T CODE ANN. 8 8 1.027 (Vernon Supp. 2001); Request Letter, supra note 1, at 4. You 

do not contend that section 264.006 is unconstitutional, and, indeed, we must presume, without 

“clear and certain” evidence to the contrary, that it is constitutional and that providing services to 

children in need of protection and care is “county business.” Salvatierra v. VIA Metro. Transit 

Auth., 974 S.W.2d 179, 182 (Tex. App.-San Antonio 1998, pet. denied); see Gen. Sews. Comm ‘n 

v. Little-TexInsulation Co., 39 S.W.3d 591,598 (Tex. 2001); McKinney v. Blankenship, 282 S.W.2d 

691,697 (Tex. 1955); Rooms With a View, Inc. v. Private Nat ‘1 Mortgage Ass ‘n, 7 S.W.3d 840,845 

(Tex. App.-Austin 1999, pet. denied), cert. denied sub nom. Nat ‘I Ass ‘n of Remodeling Indus. v. 

Rooms With a View, Inc., 531 U.S. 826 (2000); see also TEX. GOV’T CODE ANN. 5 3 11.021(l) 

(Vernon 1998) (stating that legislature is presumed to have intended to comply with state and federal 

constitutions). 

We conclude that section 264.006 authorizes the County to transfer funds to CASA, K’Star, 

Big Brothers and Sisters, and Families & Literacy, Inc. to the extent these nonprofit organizations 

provide services to and support children who need protection and care, as section 264.006 

contemplates. We assume that the County has determined that each of these contractual transfers 

of public funds serves the public purpose authorized by section 264.006 and that each transaction 

is adequately controlled by the County to ensure that the public purpose is accomplished. Whether 

in any particular case the County has adequate controls in place, which may include receiving 

adequate consideration from the nonprofit entity, is a question for the county commissioners court 

to determine in the first instance. See Tex. Att’y Gen. Op. No. JM-1039 (1989) at 7 (concluding that 

county commissioners court may determine adequacy of consideration in contract with water 

district). 

The County’s contract with Kids’ Advocacy Place, Inc. relies upon the County’s authority 

under sections 264.402 and 264.403 of the Family Code. Under these sections, a county may 

execute with representatives of the Texas Department of Protective and Regulatory Services, with 

county and municipal law enforcement agencies that investigate child abuse, with the county or 

district attorney’s office which routinely prosecutes child-abuse cases, and with any other interested 

governmental entity a memorandum of understanding to establish and participate in a children’s 

advocacy center. See TEX. FAM. CODE ANN. § 5 264.402, -403 (Vernon 1996). A center’s duties relate 
The Honorable David M. Motley - Page 6 (JC-0439) 

to intervening in cases of suspected child abuse and to coordinating the various governmental entities 

that may be involved in investigating or prosecuting a child-abuse case: 

A center shall: 

(1) assess victims of child abuse and their families to 

determine their need for services relating to the investigation of child 

abuse; 

(2) provide services determined to be needed under 

Subdivision (1); 

(3) provide a facility at which a multidisciplinary team 

appointed under Section 264.406 can meet to facilitate the efficient 

and appropriate disposition of child abuse cases through the civil and 

criminal justice systems; and 

(4) coordinate the activities of governmental entities relating 

to child abuse investigations and delivery of services to child abuse 

victims and their families. 

Id. 8 264.405. In the memorandum of understanding, all participating entities agree to cooperate in, 

among other things, “developing a . . . team approach to investigating child abuse” and “reducing, 

to the greatest extent possible, the number of interviews required of a victim of child abuse.” Id. 

8 264.403(b). You do not contend that sections 264.402 and 264.403 are unconstitutional, and we 

consequently presume that they are consistent with the constitution. 

We conclude that sections 264.402 and 264.403 authorize the County to transfer county 

funds to Kids’ Advocacy Place, Inc. to accomplish the statutory purposes. We assume that the 

County has executed the requisite memorandum of understanding, that the County has determined 

that the expenditure to Kids’ Advocacy Place, Inc. serves the public purpose authorized by sections 

264.402 and 264.403, and that the County has determined that it has in place sufficient controls to 

ensure that the public purpose will be accomplished. 

We have already determined that, to the extent the County’s transfer of funds to Families & 

Literacy, Inc. provides for “services to and support of children in need of protection and care,” 

section 264.006 of the Family Code authorizes the County to make the transfer. The County’s 

contract with Families & Literacy, Inc. cites authority in addition to section 264.006, however. See 

Families & Literacy, Inc. Contract at 1. First, the contract cites county courts’ authority “under 

various provisions of the Texas Family Code to order family studies, order parent education, and 

pursue other matters designed to aid the courts in the exercise of their duties regarding the welfare 

of children.” See id. While the contract does not list particular sections of the Family Code, we 

note, as an example, that section 107.05 1 of the Family Code permits a court with jurisdiction in a 

suit affecting the parent-child relationship to order “a social study into the circumstances and 
The Honorable David M. Motley - Page 7 (JC-043% 

condition of the child and of the home of any person requesting managing conservatorship or 

possession of the child.” TEX. FAM. CODE ANN. 5 107.051(a) (Vernon Supp. 2001). Second, the 

contract cites county courts’ authority under article 42.12, section 11 (c) of the Code of Criminal 

Procedure, which directs a county court judge who places a capable defendant on community 

supervision to require the defendant to attain a specified level of educational skill. Families & 

Literacy, Inc. Contract at 1; see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 1 l(c) (Vernon Supp. 

2001). 

The County’s contract with the Hill Country Crisis Council cites, as authority for the 

county’s contracting power, section 8 1.007 of the Family Code, which makes the county or district 

attorney’s office responsible to file for County residents applications for protective orders in 

situations involving family violence, as well as section 5 1 .O 11 of the Human Resources Code, which 

authorizes the Department of Human Services to finance family-violence shelters with public grants. 

See TEX.FAM. CODEANN. 0 81.007(a) (V emon Supp. 2001); TEX.HUM.RES.CODEANN. 0 51.011(a) 

(Vernon 2001); Hill Country Crisis Council Contract; see also Act ofMar. 29,2001,77th Leg., R.S., 

ch. 6’9 5’2001 Tex. Sess. Law Serv. 8,9 (to be codified as an amendment to TEX. HUM. RES. CODE 

ANN. 8 5 1.003) (authorizing Department of Human Services to contract for services with family 

violence centers). 

To the extent the contracts with Families & Literacy, Inc. and Hill Country Crisis Council 

rely on statutes other than section 264.006 of the Family Code, the statutes cited do not provide 

express authority for the County’s transfer of funds. Nor, in our opinion, do these statutes implicitly 

authorize a county to grant public funds for the purposes set forth in the contracts. Nevertheless, as 

we have already determined, section 264.006 of the Family Code appears to authorize a transfer of 

funds to Families & Literacy, Inc., at least to the extent that the organization provides services to and 

supports children who need protection and care. See TEX. FAM. CODE ANN. tj 264.006 (Vernon Supp. 

2001); supra at p. 5. Additionally, we believe that section 264.006 authorizes the County to transfer 

funds to Hill Country Crisis Council to the extent Hill Country Crisis Council provides services to 

and supports children who need protection and care. See TEX. FAM. CODE ANN. 8 264.006 (Vernon 

supp. 2001). 
The Honorable David M. Motley - Page 8 (JC-0439) 

SUMMARY 

Under article III, section 52 of the Texas Constitution, a 

county may not grant public funds to a private nonprofit organization 

unless the county commissioners court determines that the grant 

serves a public purpose that the county is authorized to accomplish 

and the county adequately controls the transfer to ensure that the 

public purpose is accomplished. See TEX. CONST. art. III, 5 52; see 

also id. art. XI, 8 3. Section 264.006 of the Family Code, which 

authorizes a county to provide services and support to children who 

need protection and care, empowers a county to transfer funds to a 

nonprofit organization that provides services and support to such 

children. Likewise, sections 264.402 and 264.403 of the Family 

Code authorize a county to participate in and provide funds to a childadvocacy center in accordance with a memorandum of understanding. 

A county may grant funds to a nonprofit entity to accomplish a 

statutorily authorized purpose, provided that the county determines 

the transaction will achieve a public purpose and that adequate 

controls are placed on the expenditure to ensure that the public 

purpose is accomplished. 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General, Opinion Committee