                      The Attorney                     General of Texas
                                              December          18,      1978
JOHN L. HILL
Attorney General


                   Honorable Marion E. Williams,          Jr.                   Opinion No. H-12 8 8
                   Bee County Attorney
                   Bee County Courthouse                                        Re: Authority      of the county to
                   Beeville, Texas 78102                                        pay a CETA prime contractor
                                                                                when    it is subsequently      dis-
                                                                                covered   that the activities    for
                                                                                which reimbursement      were made
                                                                                were unauthorized.

                   Dear Mr. Williams:

                          You describe the facts as follows: Bee County, through the Bee County
                   Community     Action Agency, has a contract      for the receipt of federal funds
                   under the Comprehensive      Employment    and Training Act (CETA), 29 U.S.C. §§
                   801-822, with the Coastal Bend Consortium       which acts as the prime sponsor.
                   Bee County used a portion of these funds to pay for the repairs on someone’s
                   home who, it was later discovered,       was not an eligible recipient       of CETA
                   funds. Under the contract with the consortium,       any misappropriation     of funds
                   by the county renders the county, rather than the consortium,           liable to pay
                   the amount misappropriated.       You ask whether the county has authority           to
                   pay this amount in light of article 3, section 52 of the Texas Constitution.
                   You also ask if the county auditor or county commissioners               can be held
                   personally  liable for the misappropriation    of the funds.     We note that the
                   question does not involve any payment to the ineligible individual, but instead
                   relates to the liability of one governmental   body to another.

                         Article     3, section   52 provides,        in pertinent   part:

                                   The Legislature      shall have no power to authorize  any
                                   county.    . . to lend its credit or grant public money or
                                   thing of value         in aid of, or to any individual,
                                   association or corporation      whatsoever. . . .

                          Payment of a valid claim by                 a county is not gratuitous   and does not
                   violate article 3, section 52. Harris              County v. Dowlearn, 489 S.W.2d 140 (Tex.
                   Civ. App. - Houston [14th Dist.]                   1972, writ ref’d n.r.e.) (compensation of
                   individual   pursuant   to Texas Tort              Claims Act does not violate article     3,
                   section 52); s      Angelina County v.              Kent, 374 S.W.2d 313 (Tex. Civ. App. -




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Honorable   Marion E. Williams, Jr.     -    Page 2     (~-12881



Beaumont 1963, no writ) (county must pay architect        in accordance  with contract);
Wyatt Metal & Boiler Works v. Fannin County,          111S.W.2d 787 (Tex. Civ. App. -
Texarkana    1937, writ dism’d) (county     may be held liable on theory of unjust
enrichment);   Attorney General Opinion H-1186 (19781 (state agencies may enter into
conciliation   agreements    providing  back wages to persons       who assert a valid
employment    discrimination   claim under the Civil Rights Act of 1964).

        Bee County was legally authorized    to enter into the contract under which it
was responsible     for the proper disbursement    of CETA funds.      Attorney General
Opinion H-1212 (1978). You state that under the facts the county is clearly liable.
Such liability   is necessary   for the county to be authorized      to pay the claim.
Attorney General Opinion V-653 (1948). We cannot determine       in the opinion process
whether the county is in fact liable, and we do not understand      you to be asking us
to do so. We do believe, however, that if the county is liable under the terms of a
valid contract,   then article 3, section 52 does not bar the payment of the county’s
obligation.

     Your second    question   concerns   whether   the county        auditor   or county
commissioners can be held personally liable for misappropriation       of county funds.

       Both the county auditor and the commissioners          court are responsible for the
proper use of CETA funds. Attorney General Opinion H-1212 (1978). However, the
general rule is that public officers are not liable when acting within the scope of
their duties in a matter that involves the exercise of discretion        or judgment unless
they acted willfully, corruptly,    maliciously or in bad faith. Campbell v. Jones, 264
S.W.2d 425 (Tex. 1954);                                             ,’489 S.W.2d 706 (Tex.
Civ. App. - Corpus Chr                                                      , 267 S.W.2d 187
(Tex. Civ. App. - Austin 1954, writ ref’d n.r.e.1; Welch v. Kent, 153 S.W.2d 284
(Tex. Civ. App. - Beaumont 1941, no writ); Ross v. Gonzales, 29 S.W.2d 437 (Tex.
Civ. App. - San Antonio 1930, writ dism’d). See generally            Tex. Jur.2d Municipal
 Corporations   S 225, at 602-E. It is possible that a public officer might be held
liable on a lesser standard       if the duty was purely ministerial.          See Hartford
Accident     & Indemnity    Co. v. Templeman,       18 S.W.2d 936 (Tex. Civ.         APP. -
Galveston 1929, no writ).       Whether the county auditor or county commissioners
could be held personally     liable in a particular    instance would depend on factual
determinations    that cannot be resolved in the opinion process.

                                      SUMMARY

            Article 3, section 52 of the Texas Constitution      does not bar
            payment by a county of a valid contract claim. Whether the
            county     auditor   or county  commissioners     could be held
            personally     liable for misappropriated     CETA funds would
            depend on the resolution of certain factual issues.




                                            P.   5083
Honorable   Marion E. Williams,   Jr.      -      Page 3        (H-1288)



                                                     Yery t,ruly yo urs,


                                                 &L<L2G
                                                   I
                                                ,> ’ Attorney     General   of Texas
                                                 ,’
APPROVED:                                  l,




DAVID y.. YNDALL,       First,-Assistant
                           5’

                  &..;;~ /’$f’
                              L
C. ROBERT HEAT&        Chairman
Opinion Committee

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