THE ATTOHSEY GESERAL 

OF TEXAS 

October 26, 1987 

Honorable John L. Barnhill Opinion No. JR-815 

Crosby County Attorney 

County Courthouse Re: Obligation of a county 

Crosbyton, Texas 79332 under article 2351(11), 

V.T.C.S., to provide for 

the relief of paupers 

Dear Mr. Barnhill: 

You ask several-questions about the obligation of a 

county under article 2351(11), V.T.C.S., to provide 

support for paupers. Your first question is whether 

article 2351(11) creates a property right cognizable under 

the due process clause of the 14th Amendment to the United 

States Constitution. 

The due process clause restrains the government from 

depriving a person of a liberty or property interest 

without adequate procedural safeguards. &g Board of 

Reaents v. Roth, 408 U.S. 564 (1972). Property interests 

are not created by the constitution; rather they stem from 

an independent source such as state law or local 

ordinances. Id. at 577; see Johnston v. Shaw, 556 F. 

Supp. 406 (N.D. Tex. 1982): You ask whether article 

2351(11) creates property rights.~ 

Article 2351(11) provides that each commissioners 

court shall: 

Provide for the support of paupers and 

such idiots and lunatics as cannot be 

admitted into the lunatic asylum, residents 

of their county, who are unable to support 

themselves. A county is obligated to 

provide health care assistance to eligible 

residents only to the extent prescribed by 

the Indigent Health Care and Treatment Act. 

See also Tex. Const. art. XVI, 58 (county u provide for 

care of indigent inhabitants). In order to show that 

article 2351(11) created a property interest protected by 

p. 3857 
Honorable John L. Barnhill - Page 2 (~~-815) 

the 14th Amendment, a plaintiff would have to show that he 

is entitled to some specific benefit under state law: 

To have a property interest in a benefit, a 

person clearly must have more than an 

abstract need or desire for it. He must 

have more than a unilateral expectation of 

it. . . . It is a purpose of the ancient 

institution of property to protect those 

claims upon which people rely in their daily 

lives, reliance that must not be arbitrarily 

undermined. It is a purpose of the 

constitutional right to ~a hearing to provide 

an opportunity for a'person .to vindicate 

those claims. 

Board of Reaents v. Roth, 408 U.S. at 577 (1972). A key 

to the determination of whether state law creates a 

property right is whether state law guarantees soecific 

benefits. One court phrased the issue as whether a state 

statutory scheme substantially limits the state*= 

discretion or permits it to act "at will." Punikaia v. 

Clark, 720 F.2d 564, 566 (9th Cir. 1983), cert. denied 469 

U.S. 816 (1984). Another court stated: 

[Vliewed functionally, 'property' is what 

is securely and durably yours under state 

(or as aldberq federal) law, as distinct 

from what you hold subject to so many 

conditions as to make your interest meager, 

transitory, or uncertain. 

Reed v. Villaae of Shorewood, 704 F.2d 943, 948 (7th Cir. 

1983). Another key to the determination of whether a 

property right exists is whether people have relied on the 

provision of certain benefits. Board of Reaents v. Roth, 

400 U.S. at 577. 

Article 2351(11) has given rise to several lawsuits 

in federal district courts in which plaintiffs have sued a 

Texas county claiming that article 2351(11) creates an 

entitlement to financial assistance from the county and 

that the county may not deprive persons of that 

entitlement without procedural due process. In Johnston 

v. Shaw, 556 F. Supp. 406 (N.D. Tex. 1982), the court 

considered whether article 2351(11), together with 

eligibility standards established by Lubbock County, 

created an entitlement. The court determined that article 

2351(11) h conjunction with the Lubbock County guidelines 

p. 3858 
Honorable John L. Barnhill - Page 3 (JR-815) 

created a constitutionally protected property interest. 

& at 412. The court expressed doubt, however, as to 

whether article 2351(11) alone created an entitlement. 

Id. 

In 1984 the Fifth Circuit issued two opinions in 

cases in which plaintiffs had sought a determination that 

articles 2351(11) itself created an entitlement. Mireles 

. Crosbv Co&V, 724 F.2d 431 (5th Cir. 1984); SteDhens 

. Bowie County 724 F.2d 434 (5th Cir. 1984). In both 

cases the Fifth'Circuit held that the district court had 

properly invoked the doctrine of abstention. See 

aenerallv R ilroad Commission of Texas v. Pullman, 

U.S. 496 (:941). 

312 

The court in Wireles, using language 

virtually identical to that in SteDhens, wrote: 

The district court properly invoked the 

abstention doctrine because it is unclear 

whether article 2351, 511, alone, can be the 

basis for ~a.finding of a constitutionally 

cognizable property interest. The language 

of the statute is broad and has been 

construed only twice by the Texas courts, 

once holding that the support obligation 

includes 'proper care, attention, and 

treatment during sickness,' Wonahon and 

Sisson v. Van Zandt Countv, 3 Tex.Civ.Cas. 

240 (Ct. App. 1886), and later stating that 

one who dies without estate sufficient to 

defray the cost of medical services rendered 

is not w m a pauper within the statute. 

HillaCV COUntV v. ValleV BaDtiSt IiOSDital, 

29 S.W.2d 456, 457 (Tex. civ. App.1930). 

What services a county is to provide and 

whether it must provide them at no cost or 

at a reduced rate remains unsettled. 

Moreover, there * no authoritative 

statement from ti: state courts or 

legislature defining who may qualify as a 

pauper. Thus, the second pullman factor is 

present: the scope and extent of the 

entitlement of resident indigents to support 

remains uncertain. 

Mireles at 433. You are asking us to resolve the state 

law issue raised in Wireles and SteDhPnS, that is, whether 

article 2351(11) itself creates a property right, and, if 

so, the nature of that right. 

p. 3859 
Honorable John L. Barnhill - Page 4 (X4-815) 

A version of what is now article 2351(11) was adopted 

by the Texas legislature in 1876, 8 Tex. Gen. Laws at 887 

(1876). See also 1 Tex. Gen. Laws at 1201 (1836)(similar 

statute adopted by congress of Republic of Texas). The 

various versions of the statute have been worded in a way 

that indicates that counties are required, not merely 

authorized, to support paupers. Eft Tex. Const. art.XVI, 

§8 (counties peay provide for care for its indigent 

inhabitants). Also, several cases have stated that 

article 2351(11) requires counties to provide support for 

paupers. &&Bonahon and S is 8 o n v. Van Zandt County, 3 

Tex. Civ. Gas. 240, 241-42 (Ct. App. 1886); citv f 

Wichita Falls v. Travelers Insurance Co 

174 (Tex. Civ. App. - Fort Worth 194,;. 

137 S.W.2d 17: 

.Most attorney 

general opinions that have discussed article 2351(11) have 

considered whether it authorizes certain expenditures 

rather than whether it requires certain expenditures, but 

a number of those opinions have stated that article 

2351(11) places a mandatory duty on counties. Attorney 

General Opinions O-2217 .(1940); O-2474 (1940); S-126 

(1954); C-246 (1964); C-293 (1964); M-605 (1970); M-680 

(1970); MW-33 (1979); WW-533 (1982) JW-65 (1983). A 

number of those opinions make clear, however, that it is 

left to the discretion of each county to determine how to 

meet its obligation to the poor. m Attorney General 

Opinions O-2217 (1940); C-246 (1964); WW-533 (1982); see 

&&G Attorney General Opinions WW-683 (1959); H-892 

(1976). Rut see Attorney General Opinion WW-33 (1979) 

(county liable for treatment of indigent at joint 

city-county hospital). In other words, section 2351(11) 

has been interpreted by this office as a directive to 

counties to take some action to provide for indigents, but 

it has never been interpreted as itself requiring a 

particular level of care for a defined group of persons. 

The conclusion that article 2351(11) itself requires 

no particular level of welfare services is supported by 

the action of the 69th Legislature in regard to indigent 

health care. For many years article 2351(11) was 

interpreted as requiring counties to provide health care 

for indigents. Monah n 

Countv, 3 Tex. CieCas. 241: 

d Sisson 

(C:" App. 18136):. 

Van Zandt 

Because of 

various problems created by the legislature's past failure 

to establish specific standards for indigent health care, 

the 69th Legislature enacted the Indigent Health Care and 

Treatment Act. Acts 1985, 69th Leg., 1st C.S., ch. 1, 51, 

at 2, codified as art. 4438f, V.T.C.S. S e aen rally 

Analysis to S.B. 1, 69th Leg. (1985), on %ile iz 

Bill 

Legislative Reference Library. That act established requirements 

p. 3860 
Honorable John L. Barnhill - Page 5 (JM-815) 

for county provision of indigent health care, and it 

authorized the Department of Human Services to establish 

more specific guidelines. Art. 4438f, 82.03 (eligibility 

provisions): 53.01 (required health care services). The 

legislature also amended article 2351(11) to clarify that 

the Indigent Health Care and Treatment Act, rather than 

article 2351(11), governed county responsibility for 

indigent health care. Acts 1985, 1st C.S., ch. 1, 94, at 

33. The bill analysis to the Indigent Health Care and 

Treatment Act acknowledges that fin the past the 

law -- that is, article 2351(11) -- did not provide 

guidelines governing counties8 obligation to provide 

indigent health care. Before the enactment of the 

Indigent Health Care Act, the bill analysis states, 40 

percent of the poor in Texas lived in counties without any 

clearly defined responsibilities for indigent health care. 

The Indigent Health Care and Treatment Act was intended to 

remedy that situation. Id. The legislature did not, 

however, enact legislation to provide guidelines governing 

counties' obligation to support paupers in areas other 

than health care. The legislature's failure to adopt 

standards governing provision of general welfare services 

by counties at the time it adopted standards governing 

provision of health care services is an indication that 

the legislature was content to allow the counties to 

continue to exercise their discretion in determining the 

nature and extent of the welfare services they provide in 

areas other than health care. 

We conclude, therefore, that the legislature did not 

intend article 2351(11) to require counties to provide any 

particular level of welfare services. Furthermore, the 

loo-year-old practice of allowing counties to define the 

nature and extent of their obligations under article 

2351(11) cannot have created legitimate expectations of 

any particular level of welfare benefits apart from those 

benefits that counties have chosen to provide. Thus, we 

do not believe that article 2351(11) itself creates 

property rights cognizable under the 14th Amendment. It 

has been suggested, however, that the 14th Amendment may 

be invoked to require a county to define its obligations 

under article 2351(11). We do not think that the 14th 

Amendment is the appropriate remedy for such a problem. 

In 1984 a federal district court in Georgia 

considered a similar issue. coaa * Or 

Supp. 1320 (N.D. Ga.), effi9 t47 ?zdv146? (:itl?gci~: 

1984). The plaintiffs in Scoaains argued that a Georgia 

law that required counties to set standards governing the 

p. 3861 
Honorable John L. Barnhill - Page 6 (JM-815) 

issuance of malt-beverage licenses created a property 

right enforceable under the 14th Amendment. The court 

rejected that argument, holding that even where state flaw 

requires a political subdivision to promulgate standards 

that themselves might create a property right, the state 

law alone does not create a property right: 

GA. CODE ANN. §5A-502 (Harrison 1981) also 

does not create a protectible 

interest. Section 

property 

5A-502 outlines the 

state-law procedural requirements that 

govern the decision to grant or deny a 

malt-beverage license. 

is that the 

One such requirement 

'governing authority [of a 

county] shall set forth ascertainable 

standards in the local licensina ordinance 

upon which all decisions pertaining to 

[malt-beverage] permits or licenses shall be 

based. . . .' & S5A-502(b)(l) (emphasis 

added). Section 5A-502 does not create a 

protectible property interest because it 

mere1 y requires the promulgation of 

standards for the issuance of a 

malt-beverage license. It does not itself 

outline standards which, if met, would lead 

to the issuance of a malt-beverage license. 

Thus, Section 5A-502 does not create the 

concrete expectation necessary for the 

creation of a constitutionally protectible 

property interest. 

3, at 1180-81; 

m ,purham, 

Shaml 

P iac, 620 F.2d 118, 12:-21. (6th Cizf 

1980). 

If an ordinance, which outlined standards 

for the issuance of a malt-beverage license, 

was promulgated pursuant to section 

the plaintiffs 

5A-502, 

would probably possess a 

protectible property interest. 

Scoaains v. Moore, 579 F. Supp. at 1325 (N.D. Ga.), aff'd 

747 F.2d 1466 (11th Cir. 1984). The Scoaains court 

pointed out in a footnote that the plaintiffs might have a 

cause of action in a Georgia court for a violation of 

section 5A-502 because of the county's 

ulgate the 

failure to promrequired standards but that a violation of 

section 5A-502 does not necessarily mean that federal due 

process guarantees have been violated. Id. at 1326 n. 9. 

p. 3862 
Honorable John L. Barnhill - Page 7 (JM-815) 

Your question raises a similar issue. Article 

23X(11) requires counties to make some provision for 

paupers. The legislature, however, does not provide 

guidelines and has left it to the counties to determine 

the nature and extent of their provision for paupers. As 

the Scoaains court noted, a county will probably create 

property interests if it promulgates guidelines or creates 

expectations by its actions. By doing nothing -- even if 

it is in violation of state law by doing nothing -- a 

county creates no expectations and thus no property rights 

enforceable under the due process clause. &8 Rotunda, 

Nowak & Young, Treatise on Constitutional Law: Substance 

and Procedure 517.5, V.2 (1986) (if a person has no claim 

of entitlement, there need not be any process at all): see 

m Weber v. Citv of Sachse, 591 S.W.Zd 563, 568 (Tex. 

Civ. App. 1979, no writ)(state law reguiring'county to 

fund a county police force of not less than six patrolmen 

did not create entitlement to any specified level of law 

enforcement protection). We do not address whether a 

cause of action could be brought against a county for 

failure to provide in any way at all for the support of 

paupers. 

You submitted with your request a petition presented 

to Crosby County asking Crosby County to provide support 

to farm workers. The petition suggests that in the past 

Crosby County has provided certain types of support to 

indigents. Whether Crosby County has created property 

interests by generating legitimate expectations of support 

is a fact question that we cannot address in the opinion 

process. &88 Quinn v. Svracuse Model Neiahborhood 

Corooration, 613 F.2d 438, 448 (2d Cir. 1980) (longstanding pattern of practice can establish an entitlement). 

You also ask whether article III, section 52, of the 

Texas Constitution affects a county's obligation to 

provide financial assistance to paupers. Article III, 

section 52, prohibits the donation of public funds to 

individuals: 

(a) Except as otherwise provided by this 

section, the Legislature shall have no power 

to authorize any county, city, town or other 

political corporation or subdivision of the 

State to lend its credit or to grant public 

money or thing of value in aid of, or to any 

individual, association or corporation 

whatsoever . . . . 

p. 3863 
Honorable John L. Barnhill - Page 8 (m-815) 

That provision does not mean, however, that a political 

subdivision may not make any expenditure that benefits a 

private individual. Attorney General H-912 

2;:;;). In Barrinaton v. Cokinos, 

Opinion 

338 S.W,2d 133 (Tex. 

, the court wrote: 

Wln expenditure for the direct 

accomplishment of a legitimate public . . 

purpose is not rendered unlawful by the fact 

that a privately owned business may be 

benefited thereby. 

u. at 140. The question, then, is whether support of 

paupers is a proper public purpose. The Texas Constituion 

itself makes clear that the support of paupers is a public 

purpose. &B Tex. Const. art. XVI, 58 (allowing counties 

to provide a poor house and farm). See also Housing 

A th . . v of i v of Dalla H aqinb 

71,8y1jTex. :9:0) (provid:nG' 

otham, 

hiusing for 

143 S.W.Zd 

low-income 

families serves a public purpose). Therefore, expenditure 

by a county~for the support of paupers does not violate 

article III, section 52, of the Texas Constitution. We do 

not address the propriety of any particular expenditure 

for the support of paupers. 

SUMMARY 

Article 2351(11), which provides that 

commissioners courts shall provide for the 

support of paupers, does not by itself 

create property rights cognizable under the 

due process clause of the 14th Amendment to 

the United States Constitution. 

Very truly yo r , I 

M *, 

JIM MATTOX 

Attorney General of Texas 

WARYKELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

p. 3864 
Honorable John L. Barnhill - Page 9 (JM-815) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 3865