 _r OFFICE     OF THE   ATTORNEY   GENERAL    . STATE   OF TEXAS

   JOHN C~RNYN




                                                        December 3’2001




The Honorable David M. Motley                                      Opinion No. JC-0439
Kerr County Attorney
Kerr County Courthouse, Suite BA-103                               Re: Whether statutes cited in various contracts
700 Main Street                                                    under which Kerr County has transferred funds to
Kerrville, Texas 78028                                             certain nonprofit entities authorize the County to
                                                                   make the transfers (RQ-039%JC)


Dear Mr. Motley:

        You question Kerr County’s authority to transfer county funds to various nonprofit
organizations, each of which “serve[s] children’s needs.“’ You state that Kerr County (the
“County”) “has been annually funding several non-profit entities” in accordance with contracts that
specify the amount of funds, the nonprofit entity’s obligations to the County, “the performance
standards[,] and the right to inspect financial records to ensure compliance with the contract.“2 A
county may exercise those powers explicitly or implicitly conferred upon it by statute. See Tex.
Att’y Gen. Op. No. JC-0171 (2000) at 1. Article III, section 52 of the Constitution bars a transfer
of county funds to a private entity unless the transfer serves a public purpose of the county and the
transfer is subject to adequate controls, contractual or otherwise, to ensure that the public purpose
is accomplished. See TEX. CONST. art. III, 8 52; Tex. Att’y Gen. Op. No. JC-0335 (2001) at 6. You
doubt that these expenditures serve any “public purpose tied to [a county’s] express or implied
powers, ” with the possible exception of the County’s authority under section 8 1.027 of the Local
Government Code to “provide for the support of paupers, residents of [the] county, who are
unable to support themselves.” Request Letter, supra note 1, at 4; see TEX. Lot. GOV’T CODE ANN.
9 81.027 (Vernon Supp. 2001).

         We conclude that, with respect to the nonprofit organizations and contracts to which you
refer, the statutes cited in the contracts generally appear to provide the County with sufficient
authority to make the expenditures of public funds, with a few exceptions. We assume that the Kerr
County Commissioners Court has determined, with respect to each of the expenditures you mention,
that the expenditure serves a public purpose and that adequate controls are in place to ensure that the
public purpose will be accomplished.      Whether a particular expenditure of public funds serves a
public purpose is typically an issue for the commissioners court to resolve in the first instance. See


             ‘See Letter from Honorable      David M. Motley, Kerr County Attorney, to Honorable John Comyn, Texas
Attorney      General at 2 (June 22,200l)    (on file with Opinion Committee) [hereinafter Request Letter].

           21d.
The Honorable    David M. Motley     .- Page 2    (JC-0439)




Tex. Att’y Gen. Op. Nos. JC-0239 (2000) at 4 (stating that public officeholder must determine in
first instance whether particular office closure serves public purpose); DM-3 17 (1995) at 4
(concluding that whether county commissioners court may expend county funds to pay travel
expenses of applicant for pathologist position is determination for commissioners      court in first
instance); Tex. Att’y Gen. LO-96-028, at 3 n.2 (suggesting that commissioners court may determine
in first instance whether travel allowance and in-kind reimbursement for county commissioner serves
public purpose).

         A county commissioners court may exercise only those powers that the state constitution and
statutes confer upon it, either explicitly or implicitly. See Tex. Att’y Gen. Op. No. JC-0171 (2000)
at 1. Moreover, a county commissioners court exercises powers and jurisdiction only over “county
business” as conferred by law. TEX. CONST.art. V, 5 18(b). A commissioners court thus does not
have power to accomplish something that is not county business. See id.; Tex. Att’y Gen. Op. No.
JC-0036 (1999) at 6. The phrase “county business” has been broadly construed “to encompass
matters of general concern to county residents.” Tex. Att’y Gen. Op. No. JC-0036 (1999) at 6.

         Article III, section 52 and article XI, section 3 of the Texas Constitution proscribe gratuitous
transfers of public funds to private entities. See TEX. CONST.art. III, 5 52; id. art. XI, 5 3. A county
is not prohibited from contracting with a private nonprofit corporation to provide services that the
county is authorized to provide so long as the county receives adequate consideration.          See Tex.
Att’y Gen. Op. No. JC-0335 (2001) at 7. The constitution limits a county’s authority to grant public
funds to a private nonprofit corporation to only those situations where the grant serves a public
purpose that the county is authorized to accomplish and is subject to adequate controls, “contractual
or otherwise, to ensure that the public purpose is accomplished.” Id.; see TEX. CONST.art. III, 5 52;
id. art. XI, 8 3; see also id. art. VIII, 8 3 (directing that taxes be collected “for public purposes
only”). A transfer for a public purpose is constitutionally permissible even if a private interest
benefits incidentally. See Barrington v. Cokinos, 338 S.W.2d 133,139 (Tex. 1960). A contract that
imposes on the nonprofit organization an obligation to perform a function that benefits the public
may provide adequate control. See Key v. Comm ‘rs Court ofMarion County, 727 S.W.2d 667,669
(Tex. App.-Texarkana        1987, no writ) (per curiam).

        You are particularly concerned about the County’s authority to transfer county funds to six
organizations:    Court Appointed Special Advocates (CASA); Hill Country Crisis Council; Kids’
Advocacy Place; K’Star; Big Brothers and Sisters; and Families & Literacy, Inc. Request Letter,
supra note 1, at 3-4. We have received and examined copies of the County’s contracts with each of
these entities, although we do not construe them because of the fact issues involved. See Tex. Att’y
Gen. Op. Nos. JC-0395 (2001) at 2; JC-0032 (1999) at 4; DM-383 (1996) at 2; DM-192 (1992) at
10. We will summarize what we perceive to be the pertinent features of each of the contracts at
issue.

        1.      The County cites, in its contract with CASA, its authority under section
                264.006 of the Family Code. See CASA Contract at 1 (on file with Opinion
                Committee); see infra p. 5 (discussing section 264.006, Family Code). Under
                the contract, CASA, in consideration of $3,000 from the County, is bound
The Honorable David M. Motley    - Page 3     (JC-04 39 >




             to provide “guardians ad litem for use in” appropriate court cases relating
             to children, in accordance with a court order; and provides “family studies
             and . . . such other information gathering services” as the county courts
             request. CASA Contract at 2.

      2.     The County cites as authority for its contract with Hill Country Crisis
             Council section 8 1.007 of the Family Code and section 5 1.Ol 1 of the Human
             Resources Code. See Hill Country Crisis Council Contract at 1 (on file with
             Opinion Committee); see infra p. 7 (discussing section 8 1.007, Family Code
             and section 5 1.Ol 1, Human Resources Code). The Hill Country Crisis
             Council, in consideration of $5,000 from the County, provides “[iIntake and
             referral services for qualified persons seeking family violence protective
             orders from the [county] attorney’s office; and . . . maintain[s] a ‘batterer’s
             intervention and treatment program’ designed to counsel and treat those
             who commit acts of family violence.” Hill Country Crisis Council Contract
             at l-2.

      3.     The County cites as authority for its contract with Kids’ Advocacy Place
             sections 264.402 and 264.403 of the Family Code. See Kids’ Advocacy
             Place, Inc. Contract at 1 (on file with Opinion Committee); see infra pp. 5,
             6 (discussing sections 264.402 and .403, Family Code). Kids’ Advocacy
             Place, in consideration of $3,000 from the County, provides a facility where
             “children who are the victims of sexual and/or physical abuse and their non-
             offending family members can go for evaluation, intervention,               and
             counseling”; provides a forum for agencies and County professionals who
             work with abused children to “gather and work together in assisting victims
             and their families”; provides “a resource center for training and education in
             the area of child abuse and victimization”; provides a “warm, non-threatening
             environment in which the victims of child abuse and victimization and their
             families can work with law enforcement or protection services” to prepare for
             court appearances; and provides a location where local law enforcement
             agencies and others “may obtain evidence to be used to investigate and
             prosecute those accused of child abuse and neglect.” Kids’ Advocacy Place
             Contract at l-2.

      4.     The County cites as authority for its contract with K’Star section 264.006 of
             the Family Code. See K’Star Contract at 1 (on file with Opinion Committee);
             see infra p. 5 (discussing section 264.006, Family Code).          K’Star, in
             consideration of $5,000 from the County, provides short-term emergency
             shelter for youth “in need” or “at risk”; food, clothing, counseling, and
             education to youth “in need” or “at risk”; and facilities for residential
             placement of youth in need of protection or other assistance. K’Star Contract
             at 1.
The Honorable David M. Motley        - Page 4     (JC-043%




        5.      The County cites as authority for its contract with Big Brothers and Sisters
                section 264.006 of the Family Code. See Big Brothers and Sisters Contract
                at 1 (on file with Opinion Committee); see infra p. 5 (discussing section
                264.006, Family Code).          Big Brothers and Sisters, in consideration
                for $3,000, provides to county residents “positive adult role models to
                children . . . from single-parent families” and “additional support to single-
                parent families by giving supplemental community resource referrals.” Big
                Brothers and Sisters Contract at 1.

        6.      The County cites as authority for its contract with Families & Literacy, Inc.
                section 264.006 of the Family Code; county courts’ “authority under various
                provisions of the Texas Family Code to order family studies, order parent
                education, and pursue other matters designed to aid the courts in the exercise
                of their duties regarding the welfare of children”; and article 42.12, section
                 1 l(c) of the Code of Criminal Procedure.      See Families & Literacy, Inc.
                Contract at 1 (on file with Opinion Committee); see infra pp. 6’7 (discussing
                section 264.006, Family Code; section 107.05 1, Family Code; and article
                42.12, Code of Criminal Procedure). Families & Literacy, Inc. provides, in
                consideration of $2,000 from the County, “parent/family education for use
                by the [county] courts in appropriate cases relating to . . . juvenile
                delinquency”; family study courses to “improve individual interpersonal
                relationships of various family members involved in the” county courts; and
                information to county court judges necessary to assess a defendant’s
                educational skill level and to evaluate and place appropriate conditions upon
                a defendant’s supervision. Families & Literacy, Inc. Contract at 2.

         Your letter to this office lists none of the statutes that the contracts themselves cite. Without
referencing these statutes, you suggest that the County has no express or implied authority to make
the transfers, unless the authority fits under the County’s authority to provide for indigent residents
under section 8 1.027 of the Local Government Code. See generally Request Letter, supra note 1;
cf. also Act of May 8, 2001, 77th Leg., R.S., ch. 254, 4 1, 2001 Tex. Sess. Law Serv. 463 (to be
codified as TEX. Lot. GOV’T CODEANN. 8 38 1.004(b)(6), (f)) (purporting to authorize county to
contribute county funds to comprehensive literacy program or children’s advocacy center “[t]o
stimulate business and commercial activity in a county”). Section 8 1.027 simply authorizes a county
commissioners court “to provide for the support of paupers, residents of their county, who are unable
to support themselves.” TEX.LOC. GOV’TCODEANN. 8 81.027(Vemon Supp. 2001). You aver that,
using its authority under section 8 1.027, a county might fund these six organizations in “two possible
scenarios”: “Certain children could be classified as paupers under the right factual scenario. A
pauper child might be one who has parents who are unable to provide necessary resources for him
or one who does not have parents at all.” Request Letter, supra note 1, at 4. While we agree that
the County’s authority to provide for paupers may encompass the authority to provide funds to these
The Honorable David M. Motley       - Page 5     (JC-0439)




organizations in certain circumstances, we believe that the County has other, more direct statutory
authority, such as that cited in the contracts.

          Section 264.006 of the Family Code, which is cited as authority for four of the contracts,
expressly empowers a county to “provide for services to and support of children in need of
protection and care without regard to the immigration status of the child or the child’s family.” TEX.
FAM. CODE ANN. 8 264.006 (Vernon Supp. 2001); see Hill Country Court-Appointed                  Special
Advocates (“CASA”) Contract, K’Star Contract, Big Brothers and Sisters Contract, Families &
Literacy, Inc. Contract (all on file with Opinion Committee). Unlike section 8 1.027 of the Local
Government Code, which pertains only to indigent county residents, section 264.006 of the Family
Code does not tie providing services and support of children to those who are indigent but to those
“in need of protection and care.” See TEX. FAM. CODEANN. 8 264.006 (Vernon Supp. 2001); see
TEX. Lot. GOV’T CODEANN. 8 8 1.027 (Vernon Supp. 2001); Request Letter, supra note 1, at 4. You
do not contend that section 264.006 is unconstitutional,     and, indeed, we must presume, without
“clear and certain” evidence to the contrary, that it is constitutional and that providing services to
children in need of protection and care is “county business.” Salvatierra v. VIA Metro. Transit
Auth., 974 S.W.2d 179, 182 (Tex. App.-San Antonio 1998, pet. denied); see Gen. Sews. Comm ‘n
v. Little-TexInsulation  Co., 39 S.W.3d 591,598 (Tex. 2001); McKinney v. Blankenship, 282 S.W.2d
691,697 (Tex. 1955); Rooms With a View, Inc. v. Private Nat ‘1Mortgage Ass ‘n, 7 S.W.3d 840,845
(Tex. App.-Austin 1999, pet. denied), cert. denied sub nom. Nat ‘I Ass ‘n of Remodeling Indus. v.
Rooms With a View, Inc., 531 U.S. 826 (2000); see also TEX. GOV’T CODEANN. 5 3 11.021(l)
(Vernon 1998) (stating that legislature is presumed to have intended to comply with state and federal
constitutions).

           We conclude that section 264.006 authorizes the County to transfer funds to CASA, K’Star,
Big Brothers and Sisters, and Families & Literacy, Inc. to the extent these nonprofit organizations
provide services to and support children who need protection and care, as section 264.006
contemplates.     We assume that the County has determined that each of these contractual transfers
of public funds serves the public purpose authorized by section 264.006 and that each transaction
is adequately controlled by the County to ensure that the public purpose is accomplished. Whether
in any particular case the County has adequate controls in place, which may include receiving
adequate consideration from the nonprofit entity, is a question for the county commissioners court
to determine in the first instance. See Tex. Att’y Gen. Op. No. JM-1039 (1989) at 7 (concluding that
county commissioners       court may determine adequacy of consideration in contract with water
district).

         The County’s contract with Kids’ Advocacy Place, Inc. relies upon the County’s authority
under sections 264.402 and 264.403 of the Family Code. Under these sections, a county may
execute with representatives of the Texas Department of Protective and Regulatory Services, with
county and municipal law enforcement agencies that investigate child abuse, with the county or
district attorney’s office which routinely prosecutes child-abuse cases, and with any other interested
governmental entity a memorandum of understanding to establish and participate in a children’s
advocacy center. See TEX.FAM.CODEANN. § 5 264.402, -403 (Vernon 1996). A center’s duties relate
The Honorable   David M. Motley       - Page 6    (JC-0439)




to intervening in cases of suspected child abuse and to coordinating the various governmental    entities
that may be involved in investigating or prosecuting a child-abuse case:

        A center shall:

                        (1) assess victims of child abuse and their families to
                determine their need for services relating to the investigation of child
                abuse;

                        (2) provide    services   determined   to   be   needed   under
                Subdivision (1);

                        (3) provide a facility at which a multidisciplinary       team
                appointed under Section 264.406 can meet to facilitate the efficient
                and appropriate disposition of child abuse cases through the civil and
                criminal justice systems; and

                        (4) coordinate the activities of governmental entities relating
                to child abuse investigations and delivery of services to child abuse
                victims and their families.

Id. 8 264.405. In the memorandum of understanding, all participating      entities agree to cooperate in,
among other things, “developing a . . . team approach to investigating     child abuse” and “reducing,
to the greatest extent possible, the number of interviews required of     a victim of child abuse.” Id.
8 264.403(b). You do not contend that sections 264.402 and 264.403         are unconstitutional,  and we
consequently presume that they are consistent with the constitution.

         We conclude that sections 264.402 and 264.403 authorize the County to transfer county
funds to Kids’ Advocacy Place, Inc. to accomplish the statutory purposes.      We assume that the
County has executed the requisite memorandum of understanding, that the County has determined
that the expenditure to Kids’ Advocacy Place, Inc. serves the public purpose authorized by sections
264.402 and 264.403, and that the County has determined that it has in place sufficient controls to
ensure that the public purpose will be accomplished.

         We have already determined that, to the extent the County’s transfer of funds to Families &
Literacy, Inc. provides for “services to and support of children in need of protection and care,”
section 264.006 of the Family Code authorizes the County to make the transfer. The County’s
contract with Families & Literacy, Inc. cites authority in addition to section 264.006, however. See
Families & Literacy, Inc. Contract at 1. First, the contract cites county courts’ authority “under
various provisions of the Texas Family Code to order family studies, order parent education, and
pursue other matters designed to aid the courts in the exercise of their duties regarding the welfare
of children.” See id. While the contract does not list particular sections of the Family Code, we
note, as an example, that section 107.05 1 of the Family Code permits a court with jurisdiction in a
suit affecting the parent-child relationship to order “a social study into the circumstances and
The Honorable   David M. Motley      - Page 7     (JC-043%




condition of the child and of the home of any person requesting managing conservatorship          or
possession of the child.”  TEX. FAM.   CODE ANN.  5  107.051(a) (Vernon   Supp.  2001). Second,  the
contract cites county courts’ authority under article 42.12, section 11 (c) of the Code of Criminal
Procedure, which directs a county court judge who places a capable defendant on community
supervision to require the defendant to attain a specified level of educational skill. Families &
Literacy, Inc. Contract at 1; see TEX. CODECRIM.PROC.ANN. art. 42.12, § 1 l(c) (Vernon Supp.
2001).

         The County’s contract with the Hill Country Crisis Council cites, as authority for the
county’s contracting power, section 8 1.007 of the Family Code, which makes the county or district
attorney’s office responsible to file for County residents applications for protective orders in
situations involving family violence, as well as section 5 1.O11 of the Human Resources Code, which
authorizes the Department of Human Services to finance family-violence shelters with public grants.
See TEX.FAM. CODEANN.0 81.007(a) (V emon Supp. 2001); TEX.HUM.RES.CODEANN.0 51.011(a)
(Vernon 2001); Hill Country Crisis Council Contract; see also Act ofMar. 29,2001,77th Leg., R.S.,
ch. 6’9 5’2001 Tex. Sess. Law Serv. 8,9 (to be codified as an amendment to TEX. HUM. RES. CODE
ANN. 8 5 1.003) (authorizing Department of Human Services to contract for services with family
violence centers).

         To the extent the contracts with Families & Literacy, Inc. and Hill Country Crisis Council
rely on statutes other than section 264.006 of the Family Code, the statutes cited do not provide
express authority for the County’s transfer of funds. Nor, in our opinion, do these statutes implicitly
authorize a county to grant public funds for the purposes set forth in the contracts. Nevertheless, as
we have already determined, section 264.006 of the Family Code appears to authorize a transfer of
funds to Families & Literacy, Inc., at least to the extent that the organization provides services to and
supports children who need protection and care. See TEX.FAM.CODEANN. tj264.006 (Vernon Supp.
2001); supra at p. 5. Additionally, we believe that section 264.006 authorizes the County to transfer
funds to Hill Country Crisis Council to the extent Hill Country Crisis Council provides services to
and supports children who need protection and care. See TEX.FAM. CODEANN. 8 264.006 (Vernon
supp. 2001).
The Honorable David M. Motley      - Page 8     (JC-0439)




                                       SUMMARY

                         Under article III, section 52 of the Texas Constitution, a
               county may not grant public funds to a private nonprofit organization
               unless the county commissioners        court determines that the grant
               serves a public purpose that the county is authorized to accomplish
               and the county adequately controls the transfer to ensure that the
               public purpose is accomplished.      See TEX. CONST.art. III, 5 52; see
               also id. art. XI, 8 3. Section 264.006 of the Family Code, which
               authorizes a county to provide services and support to children who
               need protection and care, empowers a county to transfer funds to a
               nonprofit organization that provides services and support to such
               children.    Likewise, sections 264.402 and 264.403 of the Family
               Code authorize a county to participate in and provide funds to a child-
               advocacy center in accordance with a memorandum of understanding.
               A county may grant funds to a nonprofit entity to accomplish a
               statutorily authorized purpose, provided that the county determines
               the transaction will achieve a public purpose and that adequate
               controls are placed on the expenditure to ensure that the public
               purpose is accomplished.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
