                              @ffice of tije 2UtornepQheral
                                      &date of Qexae
DAN MORALES                          October 25.1993
 ATTORNEY
      GENERAL
     Honorable Nathan B. Bheinlander            Opiion No. DM-268
     comal county Attorney
     150NorthSeguin,Suite318                    Be: Whether House Bii 2087 violates
     New Braunfels, Texas 78130-5113            article JII, section 52 of the Texas Consti-
                                               ,tution (lQ592)

        Dear Mr. Rheinhder:

                You ask whether House Bii 2087 violates article Ill, section 52 of the Texas
        Consthution. House Big 2087, which was recently enacted by the legislature, see Acts
        1993, 73d Leg., ch. 237 (eff Aug. 30, 1993), amends section 263.152 of the Local
        Government Code. Chapte-r263, subchapter D of the Local Government Code governs
        the disposition of salvage or surplus property by a commissionerscourt of a county. As it
        did prior to amendment, section 263.152 authorizes a commissioners court to sell such
        property by competitive bid or auction, Local Gov’t Code 8 263.152(a)(l), or to o&r the
        property as a trade-in for new property, id.5 263.152(a)(Z).      Section 263.152(a)(3)
        spedicfdly authorizes a court to
                  order any of the property to be destroyed or otherwise disposed of as
                  worthless ifthe commissionerscourt undertakes to sell that property
                  under Subdivision (1) and is unable to do so because no bids are
                  made.
        Id.5 263.152(a)(3).     Section 263.155 of the Local Government Code requires a
        conunissioners court to keep records of property disposed of pursuant to this provision for
        one year.

               House Bii 2087 amended section 263.152 by adding subsection (c) which
        provides as follows:
                      The commissioners court may dispose of property under
                  Subsection (a)(3) by donating the property to a civic or charitable
                  organimtion located in the county.
        You are concerned that this provision runs afoul of article III, section 52 of the Texas
        Constitution which provides in pertinent part:
                      jT]he Legislature shall have no power to authorize any
                  county. . . of the State to lend its credit or to grant public money or




                                                 p. 1402
Honorable Nathan B. Rheinlander - Page 2         (DM-268)




          thing of value in aid of, or to‘ any hrdividt& association or
          corporation whatsoever.

Tex. Const. art. III, 5 52(a). As explained below, we believe that House Bii 2087 on its
face does not run afoul of this provision.

        First, article III, section 52 prohibits the legislature from autborising a county to
“grant . . a thing of value.” House Bii 2087 authorizes county commissioners to donate
“salvage” or “surplus” property only. Under the relevant subchapter of the Local
Government Code, “salvageproperty” means:
          personal property, other than items routinely discarded as waste, that
          because of use, time, accident, or any other cause is so worn,
          damaged, or obsolete that it has no value for the purpose for which it
          was oliginally intended.
Local Goti Code 8 263.i51(1). “Surplus property” means property that is not Currently
needed by its owner, is not required for the owtiet’sforeseeable needs, and possesses some
usehlness for the purpose for which it was intended. Id.8 263.151(2).             Obkusly,
“salvage”or “surplus”property is generally property which is of little or no use to the
county. Furthermore, House Bii 2087 authorizes a county commissionerscourt to donate
such property only if it has tried and been unable to sell the property because no bids have
been made. For this reason, the property is also of no value to the county for resale
purposes. Assumingthat an item of property is of no use or resale value to the county, we
do not believe that article III, section 52 prohibits a county from donating it to a civic or
charitable organization. Of course, the determination whether a particular item of
property is truly of no use or resale value to the county would involve the resolution of
factual issues and therefore is not amenableto the opinion process.

        Even if an item of salvage or surplus property is of some nominal use or value to
the county, we do not believe that disposing of it by donating it in accordance with House
Bii2087will run afbul of article III, section 52. if certain conditions are met. In Attorney
General Opiion MW-373 (1981). this ofllce considered whether the University of Texas
could provide office space, utilities, and telephone service to the University of Texas Law
School Foundation, a nonprofit corporation. This office concluded that the university had
the statutory authority to provide the foundation with these items as “terms and
conditions”attached to the foundation’sdonations under section 65.31(e) of the Education
Code, and themconsidered whether this arrangement would violate article III, section 51,
the legislative counterpart of section 52(a). Attorney General Opiion MW-373 at 8-l 1.
The opinion stated that the constitutional prohibition
           requires that a grant by the university to the foundation must serve a
           public purpose, appropriate to the kction of a university, and that
           adequate consideration must flow to the public. . In addition, the




                                           p. 1403
Honorable Nathan B. Rheiniander - Page 3 (DM-268)




          university must maintain some wntrols over the foundation’s
          activities, to ensure that the public purpose. is actually
          achieved. . If these wnditions are met, the grant by the public
          entity is not unwnstitutional.
Id.at9.

       We believe that it is possible that the donation of salvage or surplus property
pursuant to House Bill 2087 wuld serve a public purpose and be acwmpanied by
adequate consideration. For example, the donation of a large piece of surplus county
equipment to an organktion which agreed to haul it could serve the public purpose of
disposing of the property. In addition, by relieving the county of the expemes it would
incur in disposing of the item, such as transportation costs and disposal fses, the
agreement to haul it could constitute adequate consideration. Again, whether the
donation of a particular item of salvage or surplus property pursuant to House Bill 2087
meets these constitutional requirements is a question of fact.

        Given the potential wnstitutional pitfalls, county wmmissioners should take
special care to ensure that the donation of property pursuant to the new law does not run
afoul of article III, section 52 of the Texas Constitution. Fii, the wunty commissioners
should ensure that the property meets the definition of “salvage”or “surplus”property set
forth in section 263.151 of the Local Government Code. Second, the county
wmmissioners should make a good faith effort to se4 the property by competitive bid or
auction pursuant to subsection (a)(l) of section 263.152. Finally, if the property has even
some very nominal value to the wunty, the county wmmissioners should ensure that the
donation serves a public purpose and is accompaniedby adequate consideration.

                                  SUMMARY
               House Bill 2087, which amends Local Govemment Code section
          263.152 to authorize a county wmmissioners wurt to donate to
          civic or charitable organizations salvage and surplus property that it
          has been unable to sell by competitive bid or auction, does not on its
          he. violate article III, section 52 of the Texas Constitution. The
          donation of a particular item may run afoul of this wnstitutional
          prohibition if the property is of value to the county and it is not
          donated for a public purpose for adequate consideration.




                                                    DAN      MORALES
                                                    Attorney General of Texas




                                        p. 1404
Honorable Nathan B. Rheinhder - Page 4   (DM-268)




WILL PRYOR
Fii Assistant Attorney General

MARYKELLER
Deputy Attorney Oemeralfor Lit&ion

RENEAHICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opiion Committee

Pmpared by Mary R Grouter
AssistrntAttO~OUKMl




                                     p. 1405
