   OPFlCE   OF THE    ATTORNEY   GENERAL   STATE   OF TEXAS

   JOHN CORNYN




                                                    July 14, 1999



The Honorable James Warren Smith, Jr.                         Opinion No. JC-0080
Frio County Attorney
500 East San Antonio Street, Box 1                            Re:      Whether under article III, section 52 or
Pearsall, Texas 78061-3100                                    article XI, section 3 of the Texas Constitution a
                                                              county may pay registration fees for a county
                                                              official or county employee to attend a state
                                                              association   conference,   either mandatory    or
                                                              voluntary, and related questions    (RQ-1226)


Dear Mr. Smith:

         You ask three questions about the constitutionality         of various uses of county funds in
light of article III, section 52 and article XI, section 3 of the Texas Constitution.        You ask first
whether a county constitutionally may pay for registration “at the different elected officials state
associations    . . to attend either mandated      or elective conferences” and for the officials lodging
while they attend the conferences.       Letter from Honorable James Warren Smith, Jr., Frio County
Attorney, to the Attorney General of Texas (Nov. 23, 1998) (on file with Opinion Committee)
[hereinafter “Request Letter”]. You ask second whether a county constitutionally               may pay in
advance for public notices placed in the local newspaper. Id. at 2. You ask third whether a county
may pay the salaries of county officials and employees prior to the regularly scheduled pay day. Id.
With the possible exception of the payment of county officials’ and employees’ salaries in advance
of services rendered, we believe the commissioners court reasonably may find that the expenditures
satisfy the constitutional requisites.

        Your questions are premised upon the prohibitions of article III, section 52(a) and article XI,
section 3 of the Texas Constitution. Both provisions restrict a county’s grants of public funds and
loans of credit:

                         (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 ofvalue in aid of, or to any individual,
                     association or corporation whatsoever.

TEX. CONST. art. III, 5 52(a).
The Honorable       James Warren Smith, Jr. - Page 2        (JC-0080)




                             No county . shall hereafter       make any appropriation or
                    donation to [a private corporation or association] or in anywise loan
                    its credit.

Id. art. XI, $ 3.

         Each of these constitutional      provisions restricts the use of public money to the
accomplishment     of public purposes. As the Texas Court of Civil Appeals described article III,
section 52, “[tlhe clear purpose of this constitutional provision is to prevent the gratuitous
application of funds to private use. The constitution does not, however, invalidate an expenditure
which incidentally benefits a private interest if it is made for the direct accomplishment       of a
legitimate   public purpose.”       Brazoria County Y. Perry, 537 S.W.2d 89, 90-91 (Tex.
Civ. App.-Houston     [lst Dist.] 1976, no writ) (citations omitted); accord Tex. Att’y Gen. Op. Nos.
JC-0011 (1999) at 2, JM-1229 (1990) at 5 (quoting Brazoria County, 537 S.W.2d at 90-91). Article
XI, section 3’s purpose is the same. See Tex. Att’y Gen. Op. No. JM-1194 (1990) at l-2 (listing
many constitutional provisions that prohibit grant of public funds and lending of public credit to
private individuals or organizations); see also 2 GEORGED. BFUDEN ET AL., THE CONSTITLJ~ONOF
THE STATE OF TEXAS: AN ANNOTATEDAND COMPARATIVEANALYSIS 676-77 (1977) (discussing
article XI, section 3).

          This office has determined that a grant or loan of credit to a private entity contravenes the
constitution only if it serves no public purpose or if the governing body fails to attach conditions to
the payment to ensure that the public purpose will be accomplished.       See Tex. Att’y Gen. Op. No.
JC-0011 (1999) at 2-3. In Attorney General Opinion JM-1229 this office concluded that a lending
of credit violates the constitution unless it accomplishes a public purpose and is accompanied by
conditions to ensure that the loan will be used for the public purpose. See Tex. Att’y Gen. Op. No.
JM-1229 (1990) at 6. “The determination             that a particular extension of credit meets the
constitutional requirements is in the first instance within the sound discretion ofthe governing body,
subject to judicial review.” See id. at 6-7. This office also has determined that a lending of credit
for constitutional purposes does not include a“mere extension of credit by deferred collection of fees
in a sale of goods or services.” Tex. Att’y Gen. Op. No. DM-382 (1996) at 14. The constitutionality
of a direct grant of public funds is analyzed the same as a lending of credit. See Edgewood Zndep.
Sch. D&t. v. Meno, 917 S.W.2d 717,740 (Tex. 1995); Tex. Att’y Gen. Op. No. JC-0011 (1999) at
2-3. With this understanding        of the two constitutional provisions you cite, we consider your
questions.

         You first ask about the county’s payment of registration fees and lodging expenses so that
county officials may attend state conferences, attendance at which may be mandated by statute or
optional. You are concerned that the payment of county funds to an official’s state association may
be a lending of credit to the association and that the payment ofcounty funds to a hotel or motel may
be a lending of credit to a corporation.
The Honorable   James Warren Smith, Jr. - Page 3          (JC-0080)




        The payments about which you ask are “grant[s] [of] public money” to private entities, in
the words of article III, section 52, or “appropriation[s]” to private entities, in the words of article
XI, section 3. Thus, in accordance with Attorney General Opinion Jh4-1229, we must consider
whether a commissioners court reasonably may find that these expenditures serve a valid public
purpose and that the county has attached appropriate conditions to the expenses to ensure that the
public purpose is accomplished.     See Tex. Att’y Gen. Op. No. Jh4-1229 (1990) at 6.

          We believe that a county commissioners court reasonably may find that funding officials’
or employees’ registration for various conferences and hotel accommodations while the official or
employee attends the conference serves a public purpose, regardless of whether attendance at the
conference is mandatory or optional. See Tex. Att’y Gen. LO-97-077, at 3 (stating that membership
and participation in private professional association may benefit public employer). You contend that
the county officials’ or employees’ attendance at the various conferences accomplishes a public
purpose because the training and education the elected officials and county employees obtain at these
conferences “increase their competency in their public positions.”        Request Letter, supra, at 3.
Analogously,      the Texas Court of Civil Appeals has recognized that paying an employee’s
certification-course   expenses “represent expenditures for the direct accomplishment of a legitimate
public purpose.”      Brazoria County, 537 S.W.2d at 91. Nevertheless,           whether a particular
expenditure will serve a public purpose is a determination for the commissioners court, not this
office, to make and is subject to review by a court.

        We have not been informed whether the county commissioners court conditions use of the
county funds on accomplishment of a public purpose. The commissioners court must ensure that
the payment is “premised upon some basis of fact.” See Tex. Att’y Gen. Op. No. H-992 (1977) at
2. The commissioners       court might, for example, require the requesting official or employee to
submit with the request for Iimding a copy of the agenda or to describe the subject matter of the
conference. The substance and adequacy of the conditions are matters for the commissioners court,
not this office, to determine and are, again, subject to review by a court.

         You next ask whether a county constitutionally may pay for public notices to be printed in
the local newspaper before the notices are published. You explain that the county publishes notices
on behalf of litigators in some instances and on its own behalf in other instances. See Request Letter,
supra, at 2. In all instances, however, you indicate that the local publisher refuses to print the notices
until payment is received:

                Our district and county clerks often have to publish notices on behalf
                of litigators but without specifically stating to the newspaper
                publisher that the billing for these notices should be submitted to the
                attorneys so requesting publication. The county and district clerks as
                well as the county auditor (who also submits notices to be published
                in local newspaper soliciting competitive bids . ) know what bills
                that they are to pay the publisher from the county’s general fund.
The Honorable   James Warren Smith, Jr. - Page 4            (X-0080)




                The publisher now refuses to publish any more COUNTY NOTICES
                UNTIL ALL notices submitted by the clerks and the auditor are paid
                even though it was plainly designated to the publisher which bills
                were strictly the county’s and those which were submitted by the
                attorneys to the clerks (in conjunction with the attorneys’ lawsuits)
                and which clerks, in turn, submitted to the publisher for publication.
                And, furthermore, from this time on, the publisher WILL NOT
                PUBLISH WHAT WILL BE CLEARLY COUNTY NOTICES
                WITHOUT BEING PAID IN ADVANCE.

Id.

         With respect to both ofthese situations, the important inquiry is whether the proposed county
expenditure will serve a public purpose and whether the county has attached sufficient conditions
to the expenditure to ensure that the money achieves a public purpose. The county commissioners
court is the proper arbiter of these issues, although its decision is subject to review by an appropriate
court.

         Third, you ask whether, at the county commissioners court’s direction, the county clerk,
county treasurer, and county auditor may cosign warrants for county officials’ and employees’
salaries before the regularly scheduled payday. See id. You ask about two different situations. In
the first, the regularly scheduled payday falls on a holiday. In this scenario, the county pays its
officials and employees before the holiday, on the last workday of the pay period. In the second
situation, the county pays officials and employees in advance for services that have not yet been
rendered. We conclude that the payment is constitutionally permissible in the first situation, but that
payment in advance in the second situation is constitutionally questionable.

          In the first situation, where officials and employees are paid after they have rendered all
services for which they will be compensated, the county, as employer, does not gratuitously grant
public funds nor lend public credit. The county has received the full measure of services it is due
in consideration of the salaries. Cj: TEX. GOV’T CODE ANN. 5 662.010 (Vernon Supp. 1999)
(restricting holiday payment to state employee whose first day is day after holiday or whose last day
is day before holiday). Consequently, neither article III, section 52 nor article XI, section 3 applies,
and the county need not articulate a public purpose for the preholiday payment.

        In the second situation, the county may unconstitutionally    be granting public funds to a
private individual with no public purpose. An advance of salary is a loan, a grant of public money
to an individual. See Hill County v. Bryant & Huffman, 264 S.W. 520,522 (Tex. Civ. App.-Waco
1924) affd inpertinentpart,     16 S.W.2d 513,516 (Tex. 1929); Tex. Att’y Gen. Op. Nos. JIM-1 194
(1990) at 2, H-74 (1973) at 10. As this office suggested in Attorney General Opinion H-74, typically
“[a] person’s salary . is his to do with as he wishes. It cannot be advanced to him by the agency
because the advance would then constitute a personal loan to him of public funds to be used for
private purposes.” Tex. Att’y Gen. Op. No. H-74 (1973) at 10. Under article III, section 52 of the
The Honorable James Warren Smith, Jr. - Page 5             (X-0080)




Texas Constitution, a commissioners court may not grant an advance of salary solely to benefit an
individual. See Grimes v. Bosque County, 240 S.W.2d 5 11,5 14 (Tex. Civ. App.-Waco 195 1, writ
ref d n.r.e.).

         Nevertheless, it is for the commissioners court to determine whether, in a particular situation,
early payment of salaries serves a public purpose. The commissioners court also must determine that
the early payment is sufficiently conditioned to ensure that the public purpose will be accomplished.
The commissioners court’s determinations may be subject to judicial review.
The Honorable   James Warren Smith, Jr. - Page 6           (JC-0080)




                                         SUMMARY

                         Neither article III, section 52 nor article XI, section 3 of the
                Texas Constitution precludes a county commissioners            court from
                paying a county official’s or county employee’s registration fee to
                attend a conference, or for lodging while the official or employee
                attends the conference,        so long as the commissioners          court
                determines that the expenditures will serve a public purpose and
                attaches conditions to the expenditure to ensure the accomplishment
                of the public purpose. Likewise, neither article III, section 52 nor
                article XI, section 3 prohibits a county from paying a publisher in
                advance to publish public notices in the local newspaper, so long as
                the county commissioners         court determines that the expenditure
                serves a public purpose and attaches sufficient conditions to the
                expenditure.    A county commissioners court may pay officials and
                employees’ salaries before the regularly scheduled payday if the
                county has received all services it is due in consideration of the
                payment. But the county may not, under article III, section 52 and
                article XI, section 3 of the Texas Constitution, pay officials and
                employees’ salaries in advance of the services being rendered unless
                it finds that some public benefit will derive from doing so and that the
                early payment is sufficiently conditioned to ensure that the public
                purpose will be accomplished.

                                                 Yo     very truly,


                                              4 (JOHN
                                                        G-k

                                                          CORNYN
                                                                      cn


                                                 Attorney General of Texas
                                                                           Y--




ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General
