              THE      ATTOHSEY    GESERAL
                          OF TEXAS


                           October 26, 1987




Honorable  John L. Barnhill               Opinion   No.    JR-815
Crosby County Attorney
County Courthouse                         Re:   Obligation    of a county
Crosbyton,  Texas   79332                 under     article      2351(11),
                                          V.T.C.S.,   to    provide     for
                                          the relief of paupers

Dear    Mr.   Barnhill:

      You ask several-questions      about the obligation    of    a
county   under   article   2351(11),    V.T.C.S.,    to    provide
support for    paupers.    Your   first    question   is whether
article 2351(11) creates a property       right cognizable   under
the due process clause of the 14th Amendment        to the United
States Constitution.

      The due process clause restrains       the government      from
depriving   a person     of  a liberty    or   property     interest
without   adequate   procedural    safeguards.      &g    Board    of
Reaents v. Roth, 408 U.S. 564 (1972).         Property    interests
are not created by the constitution;       rather they stem from
an   independent    source   such    as   state    law   or    local
ordinances.     Id.  at 577;    see Johnston    v. Shaw,     556   F.
Supp. 406     (N.D.  Tex.   1982):   You   ask   whether     article
2351(11) creates property     rights.~

        Article     2351(11)   provides     that    each     commissioners
court    shall:

              Provide for    the support     of paupers     and
          such    idiots   and   lunatics    as   cannot      be
          admitted   into the lunatic asylum,        residents
          of their county, who       are unable to     support
          themselves.      A   county     is   obligated      to
          provide health care       assistance   to   eligible
          residents    only to   the extent prescribed        by
          the Indigent Health Care and Treatment          Act.

See also Tex. Const. art. XVI, 58 (county u       provide  for
care of  indigent inhabitants).     In   order to   show  that
article 2351(11) created a property    interest protected   by

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Honorable   John   L. Barnhill   - Page     2 (~~-815)




the 14th Amendment,     a plaintiff would have           to show that   he
is entitled to some     specific benefit under           state law:

        To have a property       interest in a benefit,        a
        person   clearly      must    have   more   than     an
        abstract need     or desire       for it.    He   must
        have more than      a unilateral     expectation     of
        it. . . . It is         a purpose    of the    ancient
        institution   of    property      to  protect    those
        claims upon which people rely in their daily
        lives, reliance that must not be arbitrarily
        undermined.      It      is   a    purpose    of    the
        constitutional    right to ~a hearing to provide
        an opportunity      for     a'person   .to vindicate
        those claims.

Board of Reaents v. Roth, 408         U.S. at 577 (1972).      A   key
to the    determination     of   whether    state   law   creates     a
property   right is whether state         law guarantees     soecific
benefits.    One court phrased the issue as whether a            state
statutory     scheme     substantially      limits    the     state*=
discretion    or permits     it to act    "at will."    Punikaia    v.
Clark, 720 F.2d 564, 566 (9th Cir. 1983), cert. denied 469
U.S. 816 (1984).      Another court stated:

            [Vliewed functionally,     'property'  is what
        is securely    and durably    yours under     state
        (or as   aldberq    federal)    law, as   distinct
        from   what   you  hold    subject    to  so   many
        conditions   as to make your interest      meager,
        transitory,   or uncertain.

Reed v. Villaae of Shorewood,    704 F.2d 943, 948 (7th    Cir.
1983).    Another   key to  the  determination  of whether    a
property   right exists is whether people have relied on the
provision   of certain benefits.   Board of Reaents v.   Roth,
400 U.S. at 577.

      Article 2351(11) has given         rise to several     lawsuits
in federal district courts in which plaintiffs           have sued a
Texas county    claiming that      article 2351(11)      creates     an
entitlement   to financial      assistance   from   the county      and
that   the   county     may   not    deprive    persons     of    that
entitlement   without procedural       due process.     In Johnston
v. Shaw,    556 F.    Supp. 406     (N.D. Tex.    1982), the     court
considered    whether      article    2351(11),     together      with
eligibility    standards     established     by   Lubbock      County,
created an entitlement.       The court determined      that article
2351(11) h    conjunction    with the Lubbock County guidelines




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Honorable   John   L. Barnhill    - Page      3    (JR-815)




created a constitutionally    protected    property     interest.
&    at 412.   The court   expressed  doubt,    however,   as   to
whether article   2351(11)   alone created     an   entitlement.
Id.

      In 1984   the Fifth     Circuit    issued two    opinions     in
cases in which plaintiffs      had sought a determination        that
articles 2351(11) itself      created an entitlement.        Mireles
  . Crosbv Co&V,     724 F.2d     431 (5th Cir. 1984);      SteDhens
  . Bowie County    724   F.2d 434 (5th     Cir. 1984).     In   both
cases the Fifth'Circuit      held   that the district     court   had
properly   invoked      the   doctrine     of   abstention.       See
aenerallv  R ilroad     Commission    of  Texas v.    Pullman,    312
U.S. 496    (:941).   The    court in Wireles,     using    language
virtually  identical    to that in SteDhens,     wrote:

            The district   court    properly   invoked     the
        abstention   doctrine    because   it    is unclear
        whether article 2351, 511, alone, can be the
        basis for ~a.finding      of a constitutionally
        cognizable   property   interest.     The    language
        of   the   statute    is broad     and    has     been
        construed   only   twice by     the Texas     courts,
        once holding     that   the   support     obligation
        includes    'proper     care,     attention,       and
        treatment    during    sickness,'     Wonahon      and
        Sisson v. Van     Zandt Countv, 3 Tex.Civ.Cas.
        240 (Ct. App. 1886), and later stating            that
        one who    dies without     estate sufficient       to
        defray the cost of medical services          rendered
        is not w     m    a pauper within the        statute.
        HillaCV    COUntV   v.   ValleV      BaDtiSt    IiOSDital,
        29 S.W.2d     456,   457 (Tex.      civ.   App.1930).
        What services      a county     is to    provide    and
        whether   it must provide       them at no cost      or
        at   a    reduced    rate     remains      unsettled.
        Moreover,      there      *     no     authoritative
        statement      from     ti:     state     courts     or
        legislature    defining     who may     qualify as    a
        pauper.    Thus, the second pullman factor           is
        present:     the    scope    and    extent    of    the
        entitlement    of resident     indigents    to support
        remains uncertain.

Mireles  at 433. You   are asking us  to resolve the    state
law issue raised in Wireles and SteDhPnS,  that is, whether
article 2351(11) itself creates a property   right, and,    if
so, the nature of that right.




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Honorable    John   L. Barnhill         - Page   4   (X4-815)




       A version of what is now article 2351(11) was adopted
by the Texas legislature          in 1876, 8 Tex. Gen. Laws at              887
(1876).    See also 1 Tex. Gen. Laws at 1201                 (1836)(similar
statute adopted by         congress of Republic           of Texas).        The
various versions       of the statute have been worded in a way
that indicates        that    counties are        required,      not    merely
authorized,     to support paupers.           Eft Tex. Const.         art.XVI,
§8    (counties     peay provide        for    care    for    its     indigent
inhabitants).         Also,    several       cases    have    stated       that
article 2351(11) requires counties to provide support                       for
paupers. &&Bonahon            and S is 8 o n v. Van       Zandt County,        3
Tex. Civ.     Gas.     240,    241-42 (Ct. App.           1886);      citv     f
Wichita Falls v. Travelers            Insurance    Co     137 S.W.2d       17:
174 (Tex. Civ.        App. - Fort Worth           194,;.    .Most     attorney
general opinions that have discussed               article 2351(11) have
considered      whether     it    authorizes       certain     expenditures
rather than whether        it requires certain expenditures,                but
a number     of   those     opinions       have    stated     that     article
2351(11) places a mandatory             duty     on counties.         Attorney
General     Opinions      O-2217     .(1940);     O-2474     (1940);      S-126
(1954); C-246 (1964);          C-293 (1964);         M-605 (1970);        M-680
 (1970); MW-33       (1979);     WW-533      (1982)    JW-65      (1983).      A
number of those opinions make              clear, however,        that it     is
left to the discretion         of each county to determine             how    to
meet its     obligation     to    the poor.        m     Attorney      General
Opinions    O-2217 (1940); C-246            (1964); WW-533      (1982);     see
&&G     Attorney      General     Opinions      WW-683      (1959);       H-892
 (1976).   Rut     see Attorney        General Opinion        WW-33      (1979)
 (county    liable     for    treatment        of    indigent      at     joint
city-county     hospital).       In    other words, section           2351(11)
has been     interpreted      by    this office       as a directive          to
counties to take some action to provide for indigents,                      but
it has    never     been     interpreted       as    itself    requiring       a
particular     level of care for a defined group of persons.

      The conclusion    that article 2351(11)      itself    requires
no particular    level    of welfare services      is supported     by
the action of the 69th        Legislature   in regard to     indigent
health    care.    For    many     years   article   2351(11)      was
interpreted    as requiring    counties    to provide health      care
for indigents.             Monah n       d  Sisson        Van    Zandt
Countv, 3 Tex. CieCas.         241: (C:" App. 18136):. Because      of
various problems     created by the legislature's       past failure
to establish    specific standards      for indigent health      care,
the 69th Legislature      enacted the Indigent Health Care         and
Treatment   Act.   Acts 1985, 69th Leg., 1st C.S., ch. 1, 51,
at 2, codified    as art. 4438f, V.T.C.S.        S e aen rally Bill
Analysis   to S.B. 1, 69th Leg. (1985), on %ile iz           Legisla-
tive Reference    Library.     That act established     requirements



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Honorable   John   L. Barnhill     - Page   5   (JM-815)




for county    provision     of    indigent health        care,    and    it
authorized   the Department     of    Human Services to        establish
more specific guidelines.         Art. 4438f, 82.03         (eligibility
provisions):    53.01 (required       health care services).           The
legislature   also amended article 2351(11) to clarify                that
the Indigent Health       Care and Treatment         Act, rather      than
article    2351(11),     governed     county     responsibility        for
indigent health care.       Acts 1985, 1st C.S., ch. 1, 94,             at
33.   The bill    analysis to      the Indigent       Health Care      and
Treatment    Act     acknowledges      that     fin the       past     the
law -- that     is,   article      2351(11) -- did        not     provide
guidelines    governing      counties8      obligation     to     provide
indigent    health    care.     Before      the   enactment      of    the
Indigent Health      Care Act,     the bill      analysis    states,     40
percent of the poor in Texas lived in counties without any
clearly defined responsibilities          for indigent health care.
The Indigent Health Care and Treatment            Act was intended to
remedy that     situation.      Id.    The    legislature      did    not,
however,   enact legislation      to provide guidelines        governing
counties'   obligation     to support       paupers in     areas     other
than health     care.     The legislature's         failure    to    adopt
standards   governing    provision    of general welfare         services
by counties     at the    time it     adopted standards        governing
provision   of health     care services      is   an indication       that
the legislature      was   content     to allow      the    counties     to
continue   to exercise their       discretion     in determining       the
nature and extent of the welfare services they provide                   in
areas other than health care.

      We conclude,    therefore,    that the legislature      did   not
intend article 2351(11) to require counties to provide any
particular   level    of welfare      services.    Furthermore,     the
loo-year-old    practice    of allowing     counties to define      the
nature and     extent    of   their    obligations    under    article
2351(11) cannot      have created      legitimate   expectations      of
any particular     level of welfare benefits       apart from     those
benefits   that counties have       chosen to provide.      Thus,    we
do   not   believe    that    article     2351(11)   itself    creates
property   rights cognizable      under    the 14th Amendment.        It
has been suggested,      however,     that the 14th Amendment       may
be invoked to require a county to define its              obligations
under article 2351(11).         We do    not think    that the     14th
Amendment   is the appropriate      remedy for such a problem.

      In   1984   a    federal    district     court    in   Georgia
considered   a   similar issue.        coaa *          Or
Supp. 1320     (N.D. Ga.),    effi9 t47     ?zdv146?     (:itl?gci~:
1984).   The plaintiffs     in Scoaains argued that a Georgia
law that required counties to set standards          governing    the



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Honorable   John   L. Barnhill     - Page    6   (JM-815)




issuance of   malt-beverage      licenses   created   a property
right enforceable     under    the 14th   Amendment.   The   court
rejected that argument,     holding that even where state      flaw
requires a political      subdivision   to promulgate   standards
that themselves   might create     a property   right, the   state
law alone does not create a property       right:

        GA. CODE ANN.        §5A-502 (Harrison 1981)           also
        does    not    create     a protectible          property
        interest.       Section       5A-502     outlines        the
        state-law       procedural        requirements         that
        govern the      decision      to    grant    or    deny    a
        malt-beverage      license.      One such requirement
        is   that     the    'governing      authority       [of   a
        county]     shall      set     forth      ascertainable
        standards     in the    local licensina         ordinance
        upon    which     all   decisions       pertaining        to
        [malt-beverage]       permits or licenses shall be
        based.    . .    .' &      S5A-502(b)(l)        (emphasis
        added).     Section     5A-502 does       not create       a
        protectible       property     interest      because      it
        mere1 y     requires       the      promulgation          of
        standards       for       the     issuance         of      a
        malt-beverage      license.      It   does not      itself
        outline standards       which, if met, would           lead
        to the issuance of a malt-beverage               license.
        Thus, Section       5A-502     does not      create      the
        concrete      expectation        necessary      for      the
        creation of       a constitutionally         protectible
        property    interest.       m                     ,purham,
        3,         at   1180-81;       Shaml
        P    iac, 620      F.2d    118,     12:-21.    (6th    Cizf
        1980).

            If an ordinance,    which outlined  standards
        for the issuance of a malt-beverage      license,
        was promulgated    pursuant to section     5A-502,
        the   plaintiffs    would    probably  possess     a
        protectible   property   interest.

Scoaains v. Moore, 579 F. Supp. at 1325 (N.D. Ga.),           aff'd
747 F.2d   1466   (11th   Cir.    1984).    The   Scoaains    court
pointed out in a footnote that the plaintiffs         might have a
cause of   action in    a Georgia    court for    a violation     of
section 5A-502 because     of the county's      failure to    prom-
ulgate the   required standards      but   that a violation       of
section 5A-502 does not necessarily       mean that federal     due
process guarantees   have been violated.      Id. at 1326 n. 9.




                                 p. 3862
Honorable   John   L. Barnhill    - Page    7   (JM-815)




      Your   question     raises    a   similar     issue.       Article
23X(11)    requires    counties     to  make    some    provision      for
paupers.     The    legislature,      however,     does    not   provide
guidelines   and has     left it to     the counties to        determine
the nature and extent of their provision            for paupers.        As
the Scoaains    court    noted, a county       will probably       create
property   interests    if it promulgates      guidelines    or creates
expectations    by its actions.       By doing nothing -- even          if
it is    in violation     of state     law by    doing     nothing -- a
county creates no expectations         and thus no property        rights
enforceable   under the      due process      clause.    &8     Rotunda,
Nowak & Young, Treatise on Constitutional             Law:     Substance
and Procedure    517.5, V.2 (1986) (if a person has no              claim
of entitlement,     there need not be any process at all): see
m     Weber v. Citv      of Sachse, 591       S.W.Zd 563, 568        (Tex.
Civ. App.    1979, no     writ)(state     law   reguiring'county        to
fund a county police force of not less than six                patrolmen
did not create entitlement       to    any specified      level of     law
enforcement    protection).      We    do not     address    whether     a
cause of    action could      be brought      against a county         for
failure to provide in        any way at all       for the support       of
paupers.

      You submitted    with your request a petition          presented
to Crosby County asking       Crosby County to provide         support
to farm workers.      The petition    suggests     that in the     past
Crosby County     has provided     certain types       of support    to
indigents.    Whether    Crosby    County has      created    property
interests   by generating    legitimate    expectations     of support
is a fact question that       we cannot address in the         opinion
process.     &88   Quinn    v.    Svracuse     Model     Neiahborhood
Corooration,    613 F.2d 438, 448 (2d Cir. 1980)           (longstand-
ing pattern of practice      can establish     an entitlement).

      You also ask whether article III, section 52, of           the
Texas   Constitution     affects   a   county's   obligation      to
provide financial     assistance     to paupers.     Article    III,
section 52,    prohibits   the   donation    of public    funds   to
individuals:

             (a) Except as otherwise    provided by    this
         section, the Legislature     shall have no power
         to authorize    any county, 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,      association     or   corporation
         whatsoever    . . . .




                                  p. 3863
Honorable    John   L. Barnhill     - Page    8   (m-815)




That provision    does   not mean, however,     that a political
subdivision   may not make     any expenditure   that benefits    a
private    individual.     Attorney     General   Opinion    H-912
2;:;;).    In Barrinaton    v. Cokinos,   338   S.W,2d 133   (Tex.
      , the court wrote:

        Wln       expenditure      for     the      direct
        accomplishment    of a legitimate   public   . .
        purpose   is not rendered unlawful by the fact
        that    a privately    owned   business    may   be
        benefited   thereby.

u.   at 140.     The question,      then, is whether support           of
paupers is a proper public purpose.           The Texas Constituion
itself makes clear that the support of paupers             is a public
purpose.    &B   Tex. Const. art. XVI, 58 (allowing            counties
to provide     a poor house      and    farm).    See    also   Housing
                                           .   .
A th     v of    i v   of Dalla          H aqinb otham, 143       S.W.Zd
71,8y1jTex.     :9:0)    (provid:nG'     hiusing     for     low-income
families serves a public purpose).           Therefore,    expenditure
by a county~for      the support of      paupers does not       violate
article III, section 52, of the Texas Constitution.                We do
not address the      propriety   of   any particular       expenditure
for the support of paupers.

                             SUMMARY

               Article 2351(11),   which provides     that
         commissioners   courts shall   provide for    the
         support    of paupers,   does   not   by   itself
         create property   rights cognizable   under   the
         due process clause of the 14th Amendment        to
         the United States Constitution.

                                             Very I truly   yo r ,
                                                              M    *,


                                             JIM      MATTOX
                                             Attorney  General   of Texas

WARYKELLER
Executive    Assistant   Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney         General




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Honorable   John   L. Barnhill     - Page   9   (JM-815)




RICK GILPIN
Chairman,  Opinion    Committee

Prepared by Sarah Woelk
Assistant Attorney General




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