### THE ATTOHSEY GESERAL OF TEXAS

October26,1987

Honorable John L.Barnhill Opinion No. JR-815 Crosby County Attorney County Courthouse Re: Obligation ofacounty Crosbyton, Texas 79332 under article 2351(11), V.T.C.S., to provide for the relief ofpaupers

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 aproperty right cognizable under the due process clause ofthe 14th Amendment to the United States Constitution.

The due process clause restrains the government from depriving a person of aliberty or property interest without adequate procedural safeguards. &g Board of Reaents v.Roth, 408U.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 ofpaupers and such idiots and lunatics as cannot be admitted into the lunatic asylum, residents oftheir 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 aproperty interest protected by

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the 14th Amendment, aplaintiff would have to show that he isentitled to some specific benefit under state law:

Tohave aproperty interest inabenefit, a person clearly must have more than an abstract need ordesire for it. He must have more than aunilateral expectation of it. . . . It is apurpose ofthe ancient institution of property to protect those claims upon which people rely intheir daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to~ahearing toprovide
anopportunity for a'person .to vindicate those claims.

Board ofReaents v. Roth, 408 U.S. at 577 (1972). A key tothe determination of whether state law creates a property right is whether state lawguarantees soecific benefits. One court phrased the issue aswhether a state statutory scheme substantially limits the state*= discretion orpermits itto act "atwill." Punikaia v. Clark, 720 F.2d 564, 566 (9thCir. 1983), cert. denied 469 U.S. 816 (1984). Another court stated:

[Vliewed functionally, 'property' iswhat is securely and durably yours under state (oras aldberq federal) law, as distinct from what you hold subject to so many conditions astomake your interest meager, transitory, oruncertain.

Reed v.Villaae of Shorewood, 704 F.2d 943, 948 (7th Cir. 1983). Another key to the determination of whether a property right exists iswhether people have relied onthe provision of certain benefits. Board ofReaents v. Roth, 400 U.S. at 577.

Article 2351(11) has given rise to several lawsuits in federal district courts inwhich 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

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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 inwhich plaintiffs had sought adetermination that articles 2351(11) itself created anentitlement. Mireles

. Crosbv Co&V, 724 F.2d 431 (5thCir. 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 tothat inSteDhens, 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
onewho dies without estate sufficient to defray the cost ofmedical services rendered isnotw m apauper within the statute. **HillaCV COUntV**  **v. ValleV**  **BaDtiSt IiOSDital,**  29 S.W.2d 456, 457 (Tex. civ. App.1930). What services acounty isto provide and whether itmust provide them atno 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 ofresident indigents to support remains uncertain.

Mireles at 433. You are asking us to resolve the state law issue raised inWireles and SteDhPnS, that is,whether article 2351(11) itself creates aproperty right, and, if so, the nature ofthat right.

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Aversion ofwhat isnow article 2351(11) was adopted by the Texas legislature in1876, 8Tex. Gen. Laws at 887 (1876). See also 1Tex. Gen. Laws at 1201 (1836)(similar statute adopted by congress ofRepublic ofTexas). The various versions ofthe statute have been worded ina 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 toprovide support for paupers. &&Bonahon and iso S 8n 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 itrequires certain expenditures, but
anumber 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 todetermine 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 asa directive to counties to take some action toprovide for indigents, but ithas never been interpreted as itself requiring a particular level of care for adefined group ofpersons.

The conclusion that article 2351(11) itself requires
noparticular level ofwelfare services is supported by the action ofthe 69th Legislature inregard to indigent health care. For many years article 2351(11) was interpreted asrequiring counties toprovide health care for indigents. Monah n Countv, 3Tex. 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 asart. 4438f, V.T.C.S. Seaen rally Analysis to S.B. 1, 69th Leg. (1985), on%ile iz BillLegislative Reference Library. That act established requirements

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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 ofthe poor inTexas lived incounties 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 toprovide guidelines governing counties' obligation to support paupers in areas other than health care. The legislature's failure to adopt standards governing provision ofgeneral welfare services by counties at the time it adopted standards governing provision ofhealth care services is an indication that the legislature was content to allow the counties to continue to exercise their discretion indetermining the nature and extent ofthe welfare services they provide in
areas other than health care.

We conclude, therefore, that the legislature did not intend article 2351(11) torequire counties toprovide any particular level ofwelfare services. Furthermore, the loo-year-old practice ofallowing counties todefine the nature and extent of their obligations under article 2351(11) cannot have created legitimate expectations of any particular level ofwelfare benefits apart from those benefits that counties have chosen toprovide. 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 todefine its obligations under article 2351(11). Wedo not think that the 14th Amendment isthe appropriate remedy for such aproblem.

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

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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 apolitical subdivision topromulgate standards that themselves might create aproperty right, the state law alone does not create aproperty 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 inthe 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 mere1y requires the promulgation of standards for the issuance of a malt-beverage license. It does not itself outline standards which, ifmet, would lead to the issuance ofamalt-beverage license. Thus, Section 5A-502 does not create the concrete expectation necessary for the creation of aconstitutionally protectible property interest. 3, at 1180-81; m ,purham, Shaml P iac, 620 F.2d 118, 12:-21. (6th Cizf 1980).

Ifanordinance, which outlined standards for the issuance ofamalt-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 inafootnote that the plaintiffs might have a cause of action in aGeorgia court for aviolation of section 5A-502 because ofthe 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.

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Your question raises a similar issue. Article 23X(11) requires counties tomake some provision for paupers. The legislature, however, does not provide guidelines and has left itto the counties to determine the nature and extent oftheir provision for paupers. As the Scoaains court noted, acounty will probably create property interests if itpromulgates guidelines orcreates expectations by itsactions. Bydoing nothing --even if it is inviolation of state lawby doing nothing --a county creates no expectations and thus noproperty rights enforceable under the due process clause. &8 Rotunda, Nowak &Young, Treatise on Constitutional Law: Substance and Procedure 517.5, V.2 (1986) (ifaperson has no claim of entitlement, there need not be anyprocess atall): 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 acounty police force ofnot less than six patrolmen did not create entitlement to any specified level of law enforcement protection). We donot address whether a cause of action could bebrought against a county for failure toprovide in anyway atall for the support of paupers.

You submitted with your request apetition presented to Crosby County asking Crosby County toprovide support to farm workers. The petition suggests that inthe past Crosby County has provided certain types of support to indigents. Whether Crosby County has created property interests bygenerating legitimate expectations of support isafact question that we cannot address inthe opinion process. &88 Quinn v. Svracuse Model Neiahborhood Corooration, 613 F.2d 438, 448 (2dCir. 1980) (longstanding pattern ofpractice can establish anentitlement).

You also askwhether article III, section 52, of the Texas Constitution affects a county's obligation to provide financial assistance topaupers. Article III, section 52, prohibits the donation ofpublic funds to individuals:
(a)Except as otherwise provided by this

section, the Legislature shall have nopower to authorize any county, city, town orother political corporation or subdivision of the State to lend its credit ortogrant public money or thing ofvalue inaid of, orto any individual, association or corporation whatsoever . . . .

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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;:;;). InBarrinaton v. Cokinos, Opinion 338 S.W,2d 133 (Tex.

,the court wrote:


### Wln expenditure for the direct accomplishment ofalegitimate public . . purpose isnot 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 isaproper public purpose. The Texas Constituion itself makes clear that the support ofpaupers isapublic purpose. &B Tex. Const. art. XVI, 58 (allowing counties toprovide a poor house and farm). See also Housing Ath . . Haqinb vof iv ofDalla 71,8y1jTex. :9:0) (provid:nG' otham, hiusing for 143 S.W.Zd low-income families serves apublic purpose). Therefore, expenditure by acounty~for the support of paupers does not violate article III, section 52, ofthe Texas Constitution. We do not address the propriety of any particular expenditure for the support ofpaupers.

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 ofthe 14th Amendment to the United States Constitution.

Very truly yo r , I M *,

JIM MATTOX Attorney General ofTexas

WARYKELLER Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

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RICK GILPIN Chairman, Opinion Committee
Prepared by Sarah Woelk Assistant Attorney General

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