                                The Attorney        General of Texas
                                              June 13, 1985
JIM MATTOX
Attorney General


Supreme Court Building         Honorable Carlos Valdez                 Opinion No. JM-324
P. 0. Box 12549                Nueces County Attomey
Austin, TX. 79711-2549         County Courthouse, Raom 206             Re: Uay a county fund an educa-
5121475-2501                   Corpus Christi, Tems    78401           tional campaign to discourage
Telex 9101974-1397
Telecopier   5121475-0266
                                                                       public   litter, and related
                                                                       questions

714 Jackson. Suite 700         Dear Mr. Valdez:
Dallas. TX. 75202-4506
2141742-0944
                                    Your office advises that the Nueces County Commissioners Court
                               has been asked to I~artiallyfund a nonprofit corporation that conducts
4824 Alberta Ave., Suite 160   area-wide educational programs for the abatement of litter and trash,
El Paso, TX. 79905-2793        and which on occasion also organizes volunteers for specific cleanup
9151533.3494                   activities, and fox the distribution of litter and refuse recepticles
                               in the area. You ask if the county may legally supply funds to the
1001 Texas. Suite 700
                               organization for suc:h purposes.
Houston,   TX. 77002-3111
713/223-5886                        Article III,   section 52   of   the Texas Constitution reads in
                               pertinent part:
606 Broadway, Suite 312
Lubbock, TX. 79401-3479
                                            (a) I$:cept as otherwise provided by this
8061747-5239                             section, ,the Legislature shall have no Tower to
                                         authorize any county, city, town or other
                                         politica:.corporation or subdivision of the State
4309 N. Tenth. Suite B
                                         to lend j.ts credit or to grant public money or
McAlle”, TX. 79501-1695
5,2/692-4547
                                         thing of value in aid of, or to any individual,
                                         associat::on or corporation whatsoever, or to
                                         become a stockholder-in such corporation, associa-
 200 Main Plaza. Suite 400               tion or company.
 San Antonio, TX. 78205-2797
 512/2254191
                               The only exceptions "othewise provided" allow the lending of credit
                               for certain purpomg upon a vote of residents. (A tax to service any
 An Equal OppOrtUnitY/         indebtedness assumed must be established.) Those purposes, however,
 Affirmative Action Employer   are limited to improvement. construction, maintenance or operation of
                               waterways, bodies of water, or roads and turnpikes. None of the
                               exceptions purport 1:opermit grants of money; they make exception only
                               for "lending of credit" in certain situations. And none           make
                               exception expressl:rfor purposes of the control or abatement of trash
                               or litter.




                                                          p. 1481
Honorable Carlos Valdez - Page 2   (JM-324)




     Inasmuch as counties pos~!ss only those powers given them by the
Constitution of Texas or st,atutes enacted pursuant thereto, Tex.
Const. art. V, 918(b); Canales v. Laughlin, 214 S.W.2d 451 (Tex.
1948). and inasmuch as thz&slature      is prohibited by article III.
section 52 of the Texas Constj.t.ution
                                     from authorizing a county to make
a gratuitous e      of funds to a corporation for any purpose, the
Nueces County CormnissionersCourt may not make an unrestricted grant
to the nonprofit corporation for the purpose of funding its operations
in whole or in part. See Tex. Const. art. XI, 53; Attorney General
Opinions JM-103 (1983);%32!1   (1981); R-1189 (1978); H-397 (1974).

     Notwithstanding the above, a county is not prevented by article
III. section 52 or article XI, section 3, of the Texas Constitution
from using a nonprofit corpomtion as an instrumentality to accomplish
a proper county purpose so lmng as it retains, by contract or other
means, sufficient control of the matter to assure that the public
purpose will be served. See .Attomey General Opinion JM-103 (1983).
If an educational progracior     the abatement of litter and trash
cleanup activities, and the placement of receptacles for litter and
refuse, is a program which t‘le county itself might lawfully conduct,
it can contract in good fait‘1to pay a nonprofit corporation for its
help in accomplishing that purpose. -See Attorney General Opinion
JM-65 (1983).

     We believe the Litter Abatement Act, coupled with the declaration
in section 1.07 of article 4414b. V.T.C.S., that the

          commissioners court of any county shall have the
          authority to appropriate and expend money from the
          general revenues oji its county for and in behalf
          of public health and sanitation within its county,

furnishes ample authority for the commissioners court of Nueces County
to conduct a public educaticnal campaign designed to abate littering
in the county.

     The Texas Litter Abatenlent Act, article 4477-9a. V.T.C.S., was
enacted in 1981 to take effect in 1982. Acts 1981, 67th Leg., ch. 741
at 2710. It makes it a crilne to dispose of trash, junk, garbage,
refuse, unsightly matter, or other solid waste on a public highway,
right-of-way, or on other prblic or private property without written
consent, or into any inland or coastal waters of Texas. And the
provision is enforceable by z.

          law enforcement o!ificer of this state or of a
          political subdivision of this state or a health
          officer of a municipality authorized by law to
          regulate matters    of  sanitation and   public
          health. . . .




                               p. 1482
Honorable Carlos Valdez - Page:3    (JM-324)




V.T.C.S. art. 4477-9a. $2.Ol(ii).

     Another section of art:;cle 4477-9a makes it illegal to dump
untreated or unprocessed litter or refuse within three hundred yards
of a state highway, even if At is done by a municipal corporation or
by the owner of the land, or tly someone with the owner's consent. Id.
$2.04(c). A county or distr1c.tattorney may bring suit to preventx
restrain a violation of the neiction. Id. 52.04(g). In our opinion,
these provisions clearly imply power incounty officials to discourage
littering and, in fact, make it the duty of the county to prevent
littering.

     The possibility of a ntbxus between public health and litter,
trash, refuse, rubbish, junk 'KC garbage is not doubted. See Attorney
General Opinions JM-65 (1983); H-1280 (1978). Cf. Pricey       City of
Junction, 711 F.2d 582 (5th ~Cir. 1983). We believe, therefore --
particularly if the commissLoners court finds as a fact that a
campaign against litter would prevent a deterioration of public
health, or serve to improve il.-- that the expenditure of county funds
for the purpose of preventing public or private litter is authorized
by the ststutes of this stat!?..A contract with a private nonprofit
corporation whereby the count)'provides funds in return for the aid of
the organization in accomplishi,ngthat purpose would not be prohibited
so long as the contractual prT{isions assure receipt by the county of
an adequate quid pro quo designed to further that end. -Cf. Attorney
General Opinion H-1123 (1978).

                             6,UHMARY
                             --
             A publicly funLe,d contract with a private
          nonprofit corporation to aid Nueces County in
          preventing public or private litter is not
          prohibited so long as the contractual provisions
          assure receipt by the county of an adequate quid
          pro quo designed to s,ccomplishthat purpose.




                                         JIM     MATTOX
                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICRARDS
Executive Assistant Attorney General



                               p. 1483
Honorable Carlo6 Valdez - Page 4   (~~-324)




ROBERT GRAY
Special Assistant Attorney Gen,eral

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Bruce Youngblood




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