     OPPlCE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

     JOHN      CORNYN




                                                  January 12,200l


The Honorable Chris D. Prentice                            Opinion No. E-0329
Hale County Attorney
Hale County Attorney’s Office                              Re: Whether a county commissioner may use
500 Broadway, Suite 80                                     county property to open and close graves in a
Plainview, Texas 79072                                     private cemetery (RQ-0275-JC)


Dear Mr. Prentice:

        You ask this office whether a county commissioner may use county property to open and
close graves in a private cemetery within his precinct at no charge.’ We conclude that he may not.

         As you explain the matter, for more than fifty years a county commissioner in Hale County
has used county labor and equipment to open and close graves in a private cemetery. See Request
Letter, note 1, at 1. The grave digging process takes a total of one hour to open and close a grave
using a county worker and the county backhoe. See id. at 3. You inform us that the county receives
no compensation for this service. See id. According to your knowledge, the county commissioners
court has not authorized the use of county labor and equipment for this purpose. See id. You have
advised the county commissioner to cease grave digging. See id. at 1. We agree with your
conclusion because a county commissioner is without authority to use public labor or equipment for
a private purpose.

        In essence, your question raises two issues. The first issue is whether a commissioners court
may use public funds or public equipment for a private purpose. The second issue raised by your
question is whether a county commissioner, acting apart from the commissioners court, may bind
a county.

           It is well established that public labor and materials may only be used for a public purpose.
See TEX.     CONST. art. III, 5 52(a); Exparte Conger, 357 S.W.2d 740,742 (Tex. 1962) (prohibiting




          ‘See Letter from Honorable Chris D. Prentice, Hale County Attorney, to Chair, Opinion Committee,   Office of
the Attorney General at 1 (Aug. 24,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Chris D. Prentice - Page 2         (X-0329)




county commissioners l?om using county equipment to clear brush from a private lot, benetitting the
landowner); Tex. Att’y Gen. LO-89-005, at 1 (stating that “[clounty funds may only be spent for
public purposes”). The Texas Constitution restricts a county’s use of public funds, stating that:

        (a) Except as otherwise provided by this section, the Legislature shall have no power
        to authorize any county        to lend its credit or to grant public money or thing of
        value in aid of, or to any individual, association or corporation whatsoever . . .

TEX. CONST.art. III, 5 52(a); see Tex. Att’y Gen. Op. No. JC-0080 (1999) at 1 (stating that article
III, section 52(a) “restricts the use of public money to the accomplishment of public purposes”).
Generally, a public purpose benefits the local population, not merely a select group of persons. See
35 DAVIDB. BROOKS,TEXASPRACTICE:COUNTYANDSPECIALDISTRICTLAW 5 12.7 (1989). A
commissioners court, as a body, must determine whether a particular use of county resources serves
a public purpose. See TEX.CONST.art. V, 4 18.

       However, a county may use county resources for a private cemetery in limited circumstances.
Section 713.028 of the Texas Health and Safety Code provides:

       (a) For purposes of historical preservation or public health, safety, or welfare, a
       commissioners court may use public funds, county employees, and county equipment
       to maintain a cemetery that has a grave marker more than 50 years old.

       (b) This section does not apply to a perpetual care cemetery or a cemetery maintained
       by a religious or fraternal organization.

TEX.HEALTH&SAFETYCODEANN.            5 713.028(a),@)(V emon 1992). Section713.028 oftheHealth
and Safety Code is inapplicable here. Section 713.028 of the Health and Safety Code specifically
addresses the “maintenance” of a cemetery, not the service of burying persons. See id. 5 713.028(a).
You inform us that the county commissioner uses county resources to open and close graves and
does not provide any other maintenance or upkeep to the private cemetery. See Request Letter,
supra note 1, at 1. We believe that the opening and closing of new graves does not, by itself,
constitute the “maintenance” of a cemetery. See IX OXFORDENGLISHDICTIONARY               225 (2d ed.
1989) (defining maintenance as “[t]he action of keeping in effective condition, in working order, in
repair. . ; the keeping up of’). Even assuming the statute were applicable, based on the information
provided, the commissioners court has not authorized the use of county resources under this statute.
Nor has it made a finding that the opening and closing of graves in a private cemetery constitutes
a public purpose.

       In addressing the second issue raised by your question, we note that apart from the
commissioners court, an individual commissioner has no authority to bind a county. See Tex. Att’y
Gen. Op. No. JM-1155 (1990) at 1. Article V, section 18 of the Texas Constitution provides the
commissioners court with jurisdiction over all “county business as is conferred by this Constitution
and the laws of the State, or as may be hereafter prescribed.” A county may only act through its
The Honorable Chris D. Prentice - Page 3          (X-0329)




commissioners court. See TEX. CONST. art. V, 5 18 (granting the commissioners court jurisdiction
over county ,business); see also Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993)
(noting the authority of the commissioners court). An individual county commissioner, like other
county officers, has only the powers expressly conferred by the Texas Constitution or statutes or
necessarily implied therefrom. See Tex. Att’y Gen. Op. No. JC-0131 (1999) at 2. An individual
commissioner may have certain powers as an ex officio road commissioner for his or her precinct.
See TEX. TRANSP. CODE ANN.5 252.003 (Vernon 1999). “Underthe direction of the commissioners
court, an ex officio road commissioner is responsible for the vehicles, tools, and machinery
belonging to the county and placed in the commissioner’s control by the court.” Id. 5 252.006(a).
However, the powers granted to a commissioner as an ex officio road commissioner pertain solely
to laying out, construction, and building of roads and bridges. See id. § 252.006(b). These powers
have no relationship to, and do not include the authority to use public equipment to dig or till graves
in a private cemetery. See id.

       In sum, a commissioners court, as a body, may authorize the use of county labor and
equipment solely for a public purpose. An individual commissioner, acting apart from the
commissioners court, may not use county labor and equipment to open and close graves in a private
cemetery.
The Honorable Chris D. Prentice - Page 4      (X-0329)




                                     SUMMARY

                     An individual county commissioner may not use county labor
              and equipment to open and close graves in a private cemetery. A
              commissioners court, acting on behalf of the county, may use county
              labor and equipment solely for a public purpose.




                                             Attorney General of Texas


 ANDY TAYLOR
 First Assistant Attorney General

 CLARK KENT ERVIN
 Deputy Attorney General - General Counsel

 SUSAN D. GUSKY
 Chair, Opinion Committee

 Polly McCann Pruneda
 Assistant Attorney General - Opinion Committee
