   OFFICEOFTHEATTORNEY
                    GENERA,.STATE
                                OFTEYC
   JOHN    CORNYN




                                         September 28, 1999



Ms. Raymie Kana                               Opinion No. JC-0119
Colorado County Auditor
Courthouse - Third Floor                      Re: Whether a county attorney may refuse to offer
Columbus. Texas 78934                         pretrial diversion to an offender unless $1,500 is paid
                                              to a nonprofit organization incorporated by the county
                                              attorney and assistant county attorneys, and related
                                              questions (RQ-OOSS-JC)

Dear Ms. Kana:

         You ask whether a county attorney may condition pretrial diversion for an offender upon a
“grant” of money to a nonprofit organization incorporated by the county attorney and assistant
county attorneys. A prosecutor may not require an offender to make a contribution to a nonprofit
organization in exchange for the prosecutor’s decision to refrain from prosecution in any case. Tex.
Att’y Gen. Op. No. JC-0042 (1999) at 3. Likewise, a county attorney may not condition an offer of
pretrial diversion upon a grant of money from the offender to a nonprofit organization incorporated
by the county attorney and assistant county attorneys. In light of this answer, we do not consider
another question you ask: whether the county attorney’s office may control monies received from
offenders to participate in pretrial diversion.

         You also ask whether a county attorney may use his or her official county office address as
the registered offrice of the nonprofit organization. In short, the county attorney may not unless the
county commissioners court has approved the use of the office space for this purpose.

        Your letter to this office indicates that the Colorado County Attorney uses a pretrial diversion
contract that requires an offender to “grant” $1,500 “to Offenders, Inc., a non-profit organization
dedicated    to economically       enhanc[ing]    Colorado County law enforcement,          charity and
other worthwhile organizations of the community that crime has an impact upon.” Letter from
Ms. Raymie Kana, Colorado County Auditor, to Honorable John Comyn, Attorney General
(Apr. 22,1999) (on tile with Opinion Committee) [hereinafter Request Letter]; Pre Trial Diversion
Contractual Agreement 2. The specific and primary purposes for which the Offenders Support
Group, Inc., is organized are “lessen[ing] the burden of government and lessen[ing] neighborhood
tensions through education and charitable activities in Colorado County, Texas.” Articles of
Incorporation of Offender’s Support Group, Inc., art. 4, 9 1 (Nov. 18, 1997) (on file with Opinion
Committee) [hereinafter Articles of Incorporation].          Offenders, Inc., a/k/a “Offender’s Support
Group, Inc.,” was incorporated by the Colorado County Attorney and his two assistant county
Ms. Raymie Kana - Page 2                          (X-0119)




attorneys, although we do not understand that they were acting in their official capacities. Request
Letter, sup+ at 1; see also Articles of Incorporation, supra, at art. 7. The assistant county attorneys
and the spouse of the county attorney’s office manager serve as three of the four members of the
board of directors of Offenders, Inc. Request Letter, supra, at 1; see also Articles of Incorporation,
supra, at art. 6. Finally, the organization’s bylaws list the Colorado County Courthouse as the
location of the registered office. Request Letter, supru, at 1; see also Articles of Incorporation,
supra, at art. 5; By-Laws of Offender’s Support Group, Inc., A Non-Profit Corporation, art. 1.01
(Jan. 12, 1998) (on tile with opinion Committee) [hereinafter Bylaws].

         You ask first whether the county attorney may refuse to offer pretrial diversion to an offender
unless $1,500 is paid to a nonprofit organization incorporated by the county attorney and his two
assistant county attorneys. A prosecutor may not require an offender to make a contribution to a
private entity in consideration of the prosecutor’s decision not to prosecute in any circumstance:

                         We conclude as a matter of law that a prosecutor may not
                agree with an offender to refrain from tiling a complaint or
                information   in exchange for the offender’s contribution       to a
                designated organization.     We are not aware of any statute that
                generally permits a prosecutor to exact a donation from an offender,
                and you do not cite to any. Moreover, because of the potential for
                abusing such a practice, we are reluctant to imply authority in the
                absence of legislation expressly approving the practice.

Tex. Att’y Gen. Gp. No. JC-0042 (1999) at 3. Thus, the county attorney may not condition an
offender’s participation in a pretrial diversion program upon a gift of $1,500 to a nonprofit entity,
regardless of the identity of the incorporators. See id.

         Section 45.145(b) ofthe Government Code supports our conclusion. See TEX. GOV’TCODE
ANN. 5 45.145(b) (Vernon Supp. 1999). That section authorizes the Colorado County Attorney to
“accept gifts or grants from any individual. . for the purpose of financing or assisting the operation
of the office of county attorney in Colorado County.” Id. Implicitly, the county attorney may not
accept gifts or grants for purposes other than operating the county attorney’s office. The purposes
for which Offenders, Inc. was incorporated do not appear to directly finance or assist “the operation
of the” Colorado County Attorney’s office. Even if the organization finances the operation of the
county attorney’s office, a prosecutor may not, under any circumstances, condition participation in
a pretrial diversion program upon a contribution to a nonprofit entity. See Tex. Att’y Gen. Op. No.
X-0042 (1999) at 1.

         In light of our response to your first question, we need not answer your third question:
Whether the county attorney’s office may control funds received from offenders in accordance with
a pretrial diversion agreement. Obviously, the county attorney’s office may not receive such funds.
Ms. Raymie Kana     - Page 3                      (X-0119)




        We turn to the remaining question: Whether the county attorney may use his official county
o&e address as the registered office ofthe nonprofit organization he has incorporated. The Articles
of Incorporation and the Bylaws list the street address of the registered office as 400 Spring Street,
Columbus, Texas. See Articles of Incorporation, supra, at art. 5; Bylaws, supra, at art. 1.Ol_ We
assume this address is the same as that of the county attorney’s office.

         The registered office is important not just for reasons of service of process, but also as a
repository of business and financial information and as the default location for meetings. Each
nonprofit corporation in this State must have and maintain a registered office that may, but need not,
be the same as the corporation’s principal office. TEX. REV. Crv. STAT. ANN. art. 1396-2.05(l)
(Vernon 1997). Process, notice, or demand must be attempted to be served on the corporation’s
registered agent at the registered office. See id. art. 1396-2.07(B). The corporation must keep a list
of the names and addresses of its members entitled to vote at either the registered office or the
principal offtce in this State. See id. art. 1396-2.23(A). Additionally, the corporation must keep all
records, books, and annual financial reports at the registered office or principal office in this State.
See id. art. 1396-2.23A(C). Finally, members of the corporation must meet at least annually at the
corporation’s registered office, unless the corporation’s bylaws specify another location. See id. art.
 1396-2.10(A).

         Based upon the Texas Non-Profit Corporation Act, Revised Civil Statutes articles 1396-l .Ol
through -11.01 (Vernon 1997 & Supp. 1999), and Offenders, Inc.‘s bylaws, we assume that
Offenders, Inc. accepts service ofprocess and other documents, retains records as required by law,
and may hold meetings at the registered office. Although Offenders, Inc. is a non-member
corporation and its members need not meet annually at the registered office, its bylaws direct that
the organization’s   board of directors meetings will be held “at the principal office,” without
designating any o&e other than the registered office. See Bylaws, supra, at art. 3.05. We are not
informed that Offenders, Inc.‘s principal place of business differs from its registered office.

         The county attorney may not use county offtce space as the nonprofit corporation’s registered
office unless the county commissioners court has approved the use of county space for the purpose.
The county commissioners court is charged with providing, maintaining, and regulating the use of
the county courthouse and other county buildings. See TEX. Lot. GOV’TCODEANN. $5 291.001(l),
(3), ,003 (Vernon 1988); Dodson Y. Marshall, 118 S.W.2d 621,623 (Tex. Civ. App.-Waco 1938,
writ dism’d); see also Tex. Att’y Gen. Op. No. DM-183 (1992) at 3 (concluding that county
commissioners court is authorized to regulate smoking in county buildings). The commissioners
court, in its discretion, may allow the county attorney to use his courthouse office space as the
registered address for Offenders, Inc. ifthe court finds that (1) the nonprofit entity’s use ofthe space
will not interfere with the courthouse’s official use; and that (2) locating the nonprofit entity in the
courthouse is necessary to the convenience of county employees or to members of the public who
transact business in the courthouse. See Tex. Att’y Gen. Gp. No. MW-200 (1980) at 2; Tex. Att’y
 Gen. LO-98-091, at 1,2-3. Both ofthese issues require the resolution of fact questions, and they are,
 therefore, beyond the purview of the opinion process. See Tex. Att’y Gen. LO-98-091, at 3.
Ms. RaymieKana      - Page 4                    (X-0119)




         Ifthe county commissioners court approves the nonprofit organization’s use of county space,
the county normally must receive consideration from the organization. The county commissioners
court cannot gratuitously grant the use of public property to a private entity. See TEX. CONST.arts.
III, 5 52; XI, 5 3; see also Tex. Att’y Gen. Op. Nos. JC-0016 (1999) at 3; MW-373 (1981) at
9. But the county is not required to charge rent if the commissioners           court determines that
Offenders, Inc.‘s gratis use of the space serves a public purpose and that the use of the space is
sufficiently controlled to ensure the accomplishment ofthe public purpose. See Tex. Att’y Gen. Op.
Nos. JC-0011 (1999) at 2-3 (stating that constitution does not bar governmental grant to private
interest in all cases); MW-373 (1981) at 9 (determining that University of Texas may grant use of
public space to Law School Foundation in certain circumstances); MW-200 (1980) at 2 (stating that
county commissioners court need not collect rent for use of courthouse space by county employees’
credit union if court determines substantial benefit will derive t?om having easily accessible credit
union). This determination is one for the commissioners court to make in the first instance, subject
to judicial review if challenged. See Tex. Att’y Gen. Op. No. MW-373 (1981) at 9.
Ms. Raymie Kana - Page 5                        (X-0119)




                                       SUMMARY

                        A county attorney may not condition an offer of pretrial
               diversion upon a payment of $1,500 by the offender to a nonprofit
               organization incorporated by the county attorney and his assistant
               county attorneys.

                        A county attorney may use the official county office address
               as the registered office of anonprotit organization incorporated by the
               county attorney and assistant county attorneys if the county
               commissioners court determines that such a use of county space will
               serve a public purpose and is necessary to the convenience of county
               employees or of members of the public who transact business in the
               county facility. The nonprofit organization must pay rent unless the
               commissioners court determines, in addition, that adequate controls
               are in place to ensure the accomplishment of the public purpose.




                                              Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
