                                 The Attorney             General of Texas
JIM   MAlTOX                                           thy 14. 1984
Attorney  General


Supreme Court BulldIng         Eoaorable William D. Smith                       Opinion NO-J&158
P. 0. Box 12548
Austin, TX. 78711.2543
                               Butchineon County Attorney
51214752501                    P. 0. Box 985                                    Be:   Support of the Panhandle
Telsx 910/574-1357             Borgcr. Texas    79007                           Alcoholic   Recovery  Center by
TalecopIer 512l475.0288                                                         counties, and related questions
                               Eonorable Bill Baumann
714 Jackson. Suite 700         Potter County Attorney
Dallas. TX. 752024505          303 Courthouse
2W742-5944                     Amarillo. Texas    79101

                               Centlaman:
4824 Alberta Ave.. E+lte 150
El Paso. TX. 79905-2783
915l53334S4                           This     opinion    vi11    address     your    inquiries       concerning     the
                               relationship       between certain      counties    and the Panhandle Alcoholic
                               Recovery Center [hereinafter           PARC].    Because they deal with similar
    1 Texas. Suite 7W          subject mtter,        we have consolidated      your’questions        in this opinion.
  -,mton, TX. 77’002-3111
                               Bo:h-;i,,    you ask whether the cmissioners               court of a county may
713l2235888
                                              fines   collected    In driving      while    Intoxicated      (DWI) and
                               public      Inebriation      cases    for    county-sponsored         substance     abuse
SOSBroadway. Suite 312’        treatmat.         Mr.   Ba-n       asks whether      a conrmisaioners court           may
Lubbock, TX. 79401-3479        authorize     county and district       court judges to increase by a specific
5w747.5238
                               amount the fines assessed in their courts for substance-abuse                    related
                               offenses     and then direct      these amounts for the support of the PARC.
4309 N. Tenlh. Suite B         Hr. Smith asks whether the payment of monies out of public funds by a
McAlten, TX. 75501.1685        canrmissioners court to the PARC violates            article     III,   section 52. of
512lea2.4547                   the Texas Constitution.

200 Main Plaza. suite 400             It is vail established     that the coanissioners   court of a county
San Antonlo. TX. 752052797     may exercise     only those powers conferred        upon that   body by the
51212254191                    constitution   and laws of this state.        Tex. Const. art. V. #18.   The
                               ctissloners      court is not empowered to apportion fine revenues prior
                               to their collection.     Instead.    the county treasurer is vested with the
An Equal Opportunltyl
Afflrmatlve Actlon Employer    duty of disposing of fines collected       by a county.

                                     Article   1628. V.T.C.S..   requires all funds received by the county
                               treasurer    to be classified   in one of three categories,  including

                                            [a]11 money received under any provisions    of            the
                                            road    and bridge  law . . . and all   fines              and
                                            forfeitures.

                               This office    has read this provision  in the past to require    fines
                               collected   by s county to be placed in the road and bridge fund.   -See


                                                                 p. 697
Honorable William D. Smith
Honorable Bill Baumann
Page 2 (JM-158)




Attorney General Opinions O-5681 (1943)           (misdemeanor fines.    except
those collected      under special     statutes);   O-3092 (1941)   (fines     in
felony    convictions).    This   office    has also    concluded that     fines
collected   by a county for DWI infractions       are to be deposited in the
county road and bridge fund.      Attorney General Opinion O-4269 (1941).

      Commissioners court discretion    over the collection  and allocation
of fine    revenues was further    curtailed    with the enactment of the
County Road and Bridge Act, article      6702-l. V.T.C.S.   Acts 1983. 68th
Leg.,   ch. 288 at 1431.       Section   4.201 of the act requires        the
following   disposition of certain fines:

             Fines collected    for violations     of any highway law
             that was previously    set forth in Chapter 1. Title
             13. Vernon's Texas Penal Code, 1925. shall be used
             by the municipality     or the counties in which the
             fines    are assessed   and to which the fines        are
             payable    in the construction       and maintenance of
             roads, bridges,     and culverts     in the municipality
             or county, for the enforcement of the traffic        laws
             regulating    the use of the public htghvays by motor
             vehicles    and motorcycles,    and to help defray the
             expense of county traffic      officers.

DWI is among those offenses    alluded  to above.   Penal Code art.   802
(1925) (repealed -- nom found in V.T.C.S.   art. 67011-l).   Furthermore,
section   144 of article   6701d. V.T.C.S..   also  requires  that fines
collected  thereunder be used only "in the construction and maintenance
of roads . . . ."

        Article  6702-l also restates  the authority      of   the commissioners
court    to oversee the road and bridge fund:

             The commissioners court shall     see that the road
             and bridge   fund is   judiciously    and equitably
             expended on the roads and bridges of its county.

Sec. 3.101(c).      It is clear,   then, that rather thandeciding     to expand
the authority     of the cammissioners court over the disposition        of DWI
and related    fines,   the legislature    has sought to restrict   the court.
Consequently,     any attempt by a commissioners court to earmark fines
collected   by a county would constitute        an impermissible  expansion of
the powers of the cotissboners         court , contrary to both constitutional
end statutory     msndate.    See Tex. Const. art.      V, 618; V.T.C.S.    art.
6702-l; Canales v:LaughlK214            S.W.2d 451, 453 (Tex. 1948).

       This   conclusion    also    addresses    Mr. Baumann's inquiry.      Mr.
Baumann asks whether a cosmissloners          court may sanction an increase in
fines    assessed   against    substance abusers.      The power to prescribe
fines    is   a matter    held    generally    within   the discretion   of  the
legislature     end may be overridden           only  in extraordinary    cases.


                                     p. 698
Honorable William D. Smith
Honorable Bill Baumann
Page 3   (JM-158)




Pennington v. Singleton.     606 S.W.2d 682, 690 (Tex.       1980).      In our
oolnion.   commissioners court authoriaation     of such an increase would
disturb-both  the!discretlon   of the legislature    to prescribe    fines and
the euthority   ofi.tha courts to set fines within legislative          limits.
Accordingly,  a commissioners court may not authorize           district     and
county court   judges   to increase fines     assessed  in substance abuse
canes.

      The brief prepared by Mr. Baumann’s office   does, however, provide
insight   into the lawful methods by which a commissioners court may
fund the PARC. In the brief,    Mr. Baumann discusses the authority of a
county to contract     with  a private   entity   for   the provision   of
necessary health services under articles    2351 and 4418, V.T.C.S.   Mr.
Smith, meanwhile, asks whether articles    4418f (repealed  -- now found
in article    4414b. section  1.07) and 4478 permit the commissioners
court of Eutchlnson County to contract with the PARC even though the
center is located in another county.

     The authority  of a county to enter into contracts was explained
in Galveston, 8. ~& S.A. Railway Co. v. Uvalde County, 167 S.W.2d 305,
307 (Tex. Civ. App. - San Antonio 1942. vrit ref’d v.0.m.):

            A county may contract only in the manner and for
            the.purposes provided by statute, and is not bound
            by a contract beyond the scope of its power6 or
            foreign  to its purposes, or which is outside the
            authority of the officers making It.

Prior opinions of this office            demonstrate that a county may contract
vlth private,       nonprofit    entities   and private     corporations      to perform
services     the county is Itself         authorized    to provide..      See Attorney
General Opinions JM-103 (1983) (county may contract for operation                       of
senior citizen recreation          and health center);     JM-65 (1983) (county may
contract with privately           owned and operated hospital);          H-1123 (1978)
(county may contract          with private     hospital    for obstetrical        care of
charity patients).        It is equally true, however, that a county may not
contribute     public funds to such entities.           Tex. Const. art. III,         152;
art. XI, 13,. See Attorney General Opinions MW-329 (1981) (county may
not make contributions            to nonprofit      corporation     for     training    of
handicapped persons);         H-1189 (1978) (county may not donate funds to
private     day care center);        E-520 (1975) (county may not contribute
public     funds     for   construction      of   privately     owned and operated
livestock     show barn).      The payment of public funds to private               and/or
nonprofit     entities   is lawful when either the expenditure serves a true
public    purpose,     accompanied by sufficient          controls,     or the county
receives     adequate consideration         for the expenditure.          -See Attorney
General Opinions m-103, JM-65 (1983).

     Accordingly,   we believe   that    any contract                 authorizing   an
expenditure to the PARC must be preceded by e specific                factual finding
by the commissioners court that alcoholism constitutes                a public health




                                       p. 699
Honorable William D. Smith
Ronorable Bill Bauwann
Page 4   (JM-158)  I




problem in the county and that           the PARC provides     what way be
reasonably   characterieed    as haalth services.    See generally  Attorney
General Oplniou JH-5 (1983) (alcoholisw       treatment requires   more than
mere detoxification).      Moreover, the contract should clearly   state the
public purpose to be furthered and should by its terms reserve for the
county sufficient     control   over the performance    of the contract      to
ensure that the public purpose is carried out for the benefit of the
county and its residents.

      To susmsrire,  we eonclude that a county conmissloners court may
sot earmrk DWI and related fines for the PARC. Siwilarly.           we believe
that the connissioners    court way not authorize       an incresse   In fines
assessed against substance offenders.        The paywent of county funds to
the PARC does not violate       article    III,  section   52, of the Texas
Constit"tlon,   provided   that such peyreats      are wade pursuant      to a
coutract predicated   on the factual    finding described above.      The only
rewaining issues to be addressed are whether the agency with which the
county contracts must be located within that county and whether such
contracts way be paid from DWI and related fine revenues.

      Mr. Smith writes  that under former article       4418f. it is unclear
whether county funds may be spent outside the county.            Although the
authority  of the commissioners court to spend funds for health and
sanitation  appears in the statute      creating   the state Department of
Health and Board of Health,        numerous opinions      from this    office,
previously  cited,  demonstrate that this power is not limited by the
caption to former article   4418f.    By the same token, we see no reason
to limit expenditures for health and sanitation       to the county In which
the commissioners court sits,   so long as the benefits      of such spending
inure to the county and Its residents.        Accordingly,   we believe    that
the cosmissioners  court of Rutchinson County is authorized to contract
with the PARC, notwithstanding     the fact that the PARC Is located in
another county.

                                 SUMMARY

               A commissioners      court    is   not authorized     to
           earmark DWI and related         fines,   uor to increase
           fines   assessed    against   substance    offenders,   for
           the purpose      of   funding    an alcoholic      recovery
           center.


                                           ,   Vefz#&



                                               JIM     HATTOX
                                               Attorney General   of Texas


                                    p. 700
Honorable William D. Smith
Honorable Bill Baumann
Page 5   (JM-158)




TOM GRRRN
First Assistant   Attorney   General

DAVID R. RICBARDS
Executive Assistant   Attorney   General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COWITTEE

Rick Gllpin.   Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                                  p. 701
