                               oftfy2Wmwp General
                          QIXfice
                                       &ate of Qexae
DAN MORALES
 Al-rORNEY
       GENERAL                           January 19,1995

     Honorable Gerald Alan Joy                     Opinion No. DM-3 17
     Potter County Auditor
     601 South Taylor                              Re: Whether a county may pay travel
     Amarillo, Texas 79101                         expenses of an applicant for the position of
                                                   county forensic pathologist (RQ-712)

     Dear Mr. Joy:

             You ask whether the commissioners court of Potter County is authorized to
     “spend public funds” to pay for the transportation and related travel srpenses of an
     applicant for the position of forensic pathologist for the purpose of traveling to be
     interviewed. You explain the situation as follows:

                    Since 1991 the County has employed a forensic pathologist to
               perform autopsies in questionable deaths. . . . The last one resigned
               effective March 31,1994. . Prior to and since the last resignation,
               the County Judge and the Commissioners have contacted and been
               contacted by a number of candidates for the position. In April, the
               County Judge, in a good faith effort to hold down County expenses,
               arranged with a local travel agency to have a plane ticket delivered to
               one of the candidates with the expectation that the County would pay
               for it. He knew that it would be cheaper to fly the doctor up
               here.     than for a judge and another official to fly down them for an
               interview.

     We understand your query to raise the question of whether article IR, section 52 of the
     Texas Constitution precludes the commissioners court from spending public tbnds to pay
     the travel expenses of a candidate for a county position. We conclude that under certain
     circumstances such an expenditure is not prohibited.

             We begin our analysis by determining the scope of authority with which the
     commissioners court is vested. Commissioners courts may exercise only such powers as
     the constitution or the statutes have specifically conferred upon them. Gmules v.
     Laughlin, 214 S.W.2d 451 (Tex. 1948); Starr Cotmy v. (herra, 297 S.W.2d 379 (Tex.
     Civ. App.-San Antonio 1956, no writ). Article V, section 18(b) of the Texas Constitu-
     tion establishes the commissioners court and provides in pertinent part that

                [t]he County Commissioners . shall exercise such powers and
               jurisdiction over all county business, as is conferred by this
               Constitution and the laws of the State, or as may be hereafter
               prescribed.

                                              p. 1682
Honorable Gerald Alan Joy - Page 2         (DM-317)




While the commissioners court is statutorily empowered to act only where expressly
authorized, the courts of this state have allowed the exercise of broad authority, express or
implied, nexssary to achieve specitic goals authorized by state Jaw. 35 DAVIDBROOKS,
COUNTYAND SPECIALDISTIUCTLAW 5 5.11 (Texas Practice 1989); see Glenn v. Da&s
Cam@ Bois D’Arc Island Levee Dist., 275 S.W. 137 (Tex. Civ. App.-Dallas 1923),
reh’ggranted on other groun&, 282 S.W. 339 (1926), rev’d on other grounk, 288 SW.
165 (Tex. Comm’n App. 1926, jtufgm’r adopfed) (defining the scope of the term “county
business”)t; Rodgers v. County of Taylor, 368 S.W.2d 794 (kx. CN. App.-Eastland
 1%3, writ ref’d n.r.e.). See generally Pritchard & Abott v. McKenna~ 350 S.W.2d 333
(Tar. 1961) (implied authority to contract with private appraisal Srm upheld).

        Article 49.25 of the Code of Criminal Procedure provides for the office of county
medical examiner. The commissioners court is vested with the express authority to
establishandmaintaintheofficeofmedimllexaminer.               Furthermore, the court “shall
appoint the medical examiner [who must be a physician], who shah serve at the pleasure of
the commissioners court.” Code Grim. Pm. art. 49.25 5s 1, 2; 36 BROOKS,supra,
$26.9. Although the commissioners court is vested only with the express authority to
establish and appoint to such office, we believe that it is logical to presume that the court
is vested witb certain implied authority necessary to achieve this specific goal, i.e., the
authority to interview quahtied applicants for the position of medical examine-r.

         We now consider whether the authority to interview and appoint includes the
authority to pay for the travel expenxs of a candidate for such an appointment. Article
Ill, section 52 of the Texas Constitution provides in pertinent part:

           pqhe Lagislature shall have no power to authorize any wttnty, city,
           town or other political corporation or subdivision of the State to lend
           its credit or to grant public money or thing of value in aid of, or to
           any individual, assockion or corporation whatsoever. . .

See also Tex. Const. art. ID, 5s 50, 51. See generaZ@ 1 GEORGED. BRALEN, TIE
~~T~NSTITUTION OFTHESTATEOFTEXAS:AN ANNUTATED ANDCOMPARATIVE              ANALYSIS
232 (1977) (explaining article ID, sections 51 and 52 of Texas Constitution). This
provision is mandatory. Texas & N.OR. Co. v. Galwston Comfy, 161 S.W.2d 530 (Tex.




Glenn v. Dalhs CountyBois D!4rc IslandLeer Dist., 215 S.W. 131,145.



                                            p. 1683
Honorable Gerald Alan Joy - Page 3 (DM-317)




Civ. App.-Galveston 1942), af’d, 169 S.W.2d 713 (Tar. 1934). Its purpose is to
prevent the making of a grant, loan, or application as a mete charity or gratuity, however,
this section does not invalidate an expenditure that incidentally benefits a private interest if
it is made for the direct accomplishment of a legitimate public purpose. Brawria Comfy
v. Peny, 537 S.W.2d 89, 90-91 (Tex. Civ. App.-Houston [lst Dist.] 1976, no writ);
Harris county v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App.-Houston [14th Dist] 1972,
writ ref’d n.r.e.); see Attorney Generai Opinions JM-1229, at 3-5, JM-1209, at 1,
JM-1199, at 1 (1990); 1 BRADEN,supra, at 233.

        We note that no fixed rule delineates exactly what constitutes a “public purpose.”
See Davis v. City ofTaylor, 67 S.Wfd 1033, 1034 (Tex. 1934) (quoting 6 MCQUUL.EN,
~NM~NI~IPAL CORFORA~ONS 5 2532, at 292 (3d ed. 1991) (stating that “what is a public
purpose cannot be answered by any precise definition tiuther than to state that if an object
is beneficial to the inhabitants and directly connected with the local government it will be
considered a public purpose”). The determination that a public purpose is being served by
an expenditure of finds or an extension of credit rests in the first instance with the
governmental entity’s discretion, subject to judicial review. Attorney General Qpinion
N-1229 at 6-7. In detenninin g whether a particular grant of public funds or extension of
credit serves a legitimate public purpose, the governmental body must also ensure that
there are sutlkient controls over such expenditure to tixther the stated purpose. Attorney
General QpiionDM-256 (1993) at 3.

        In Attorney’ General Qpiion M-223 (1%8), this office considered whether a
county hospital district was authorized to spend public funds to pay for the travel expemes
assockted with the recruitment and interviewing of prospective employees. It was con-
cluded that while the hospital district was statutorily authorized to make expenditures on
behalf of its efforts to recruit personnel, there was no such authority to pay the travel
expense of prospective employees. Id. at 2. We now depart from our former decision,
which we believe was based on an overly rigid interpretation of article IlI, section 52, and
conclude that in certain circumstan ces the commissioners court is vested witb the
authority to pay the travel and related expenses of a prospective employee. Although such
an individual is a private citizen rather than a public setvrmt of the wunty or agent thereof,
such an expenditure may constitute “county business” if it tirrthers the county’s public
purpose of making the most eflicient use of public funds during the in&view process.
Thus, in certain kxmstances       the payment of any and ail travel expemes of an applicant
for the position of county forensic pathologist does not wnstitute the granting of public
money or thing of value to an individual in violation of article ID, section 52 of the Texas
Constitution.s To the extent that Attorney General Qpiion M-223 is in wntlict with this
decision, it is overruled.




                                             p. 1684
Honorable Gerald Alan Joy - Page 4 (DM-317)




                                 SUMMARY

               Article III, se&ion 52 of the Texas Constitution requires that
          expenditures by a wunty be for a public purpose. The determination
          that such purpose is being served by an expenditure of public timds
          or an extension of credit rests with the governmental entity’s
          discretion, subject to judicial review. Jn some cases, article JIJ,
          section 52 may not preclude a county from paying the travel
          expenses of an applicant for the position of wunty forensic
          pathologist. Attorney General Opinion M-223 (1968) is overruled to
          the extent that it wntlicts with this decision.




                                                  DAN     MORALES
                                                  Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair. Opiion Committee

Prepared by Toya C. Cook
Assistant Attorney General
