                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT




                                                May 30,2003



The Honorable C.E. “Mike” Thomas, III                       Opinion No. GA-0078
Howard County Attorney
P. 0. Box 2096                                              Re: Whether a commissioners         court may
Big Spring, Texas 79721                                     contract for online legal research services for
                                                            the general public and local attorneys with
                                                            fees collected under section 323.023 of the
                                                            Local Government Code (RQ-0006-GA)


Dear Mr. Thomas:

         You ask whether the Commissioners Court of Howard County may contract for online legal
research services for the general public and local attorneys, using filing fees collected for the county
law library fund.’ See TEX. LOC. GOV’T CODE ANN. 9 323.023 (Vernon Supp. 2003) (authorizing
filing fees for county law library fund).

          The Howard County Bar Association submitted a proposal to the commissioners court to
obtain an online legal research service, Westlaw, for the county law library. As we understand the
terms of the proposal, the service provider would treat the entire community as a single customer,
providing an open access account to the county law library for the general public and jail inmates,
and individual accounts for the district judge, the district attorney, the county attorney, and each
participating local attorney. The judge, the state attorneys, and the local attorneys would be able to
access the databases from their respective offices. The charge for this service to Howard County
would be a flat fee of $1900 to $2000 per month. Participating local attorneys would sign three-year
contracts with the service provider and pay for services not included in the county’s plan. Because
the filing fees earmarked for the county law library fund average only $1840 per month, local private
attorneys have agreed to pay the county the difference.

        At the commissioners   court’s invitation, the district attorney submitted his alternative
proposal to appoint a county law librarian, who could obtain online legal research services for the




         ‘See Letter from Honorable C.E. “Mike” Thomas, III, Howard County Attorney, to Honorable Greg Abbott,
Texas Attorney General at 1 (Dec. 9,2002) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable     C.E. “Mike” Thomas, III - Page 2                     (GA-0078)




library alone at a lower cost.* The district attorney objected to the bar association’s plan because,
he asserted, it would subsidize local attorneys. He observed that the service provider would not offer
an open access account for the library without including accounts for the attorneys in the county.
According to the district attorney, private attorneys currently pay $145 to $275 per month for online
legal research services, but under the bar association’s proposal, their costs would drop to an amount
between $25 and $50 per month.

        You specifically    ask whether the local bar association’s proposal would impermissibly
subsidize the local attorneys by providing for their online research with the filing fees collected for
the county library fund. While this office does not construe particular contracts in an attorney
general opinion, we will address a public entity’s authority to accept certain contractual terms when
the question can be answered as a matter of law. See Tex. Att’y Gen. Op. No. JC-0068 (1999). The
question we examine here is whether a county may use its law library fund to obtain online legal
research services for the general public under a contract requiring the participation of private
attorneys to their benefit.

         A commissioners court’s authority to act for the county derives only from the constitution
and statutes, whether that power is express or necessarily implied. See Guynes v. Galveston County,
861 S.W.2d 861, 863 (Tex. 1993). Chapter 323, subchapter B of the Local Government Code
authorizes a commissioners court to establish and maintain a county law library. TEX. LOC. GOV’T
CODE ANN. 53 323.021--025 (Vernon 1999 & Supp. 2003). The commissioners                      court “shall
annually appropriate an amount necessary for the proper maintenance and operation of the library.”
Id. fj 323.021(b) (V emon 1999). To defray a county law library’s costs, the code authorizes a county
to collect a civil case filing fee for deposit in a special county law library fund. Id. 8 323.023(a)-(b)
(Vernon Supp. 2003).

        Section 323.023(b) of the Local Government Code allows the fund to be used only for county
law library and judicial purposes, namely:

                         (1) establishing     the law library after the entry of the order
                 creating it;

                          (2) purchasing or leasing library materials, maintaining the
                 library, or acquiring furniture, shelving, or equipment for the library;
                 or

                         (3) purchasing or leasing library materials or acquiring library
                 equipment, including computers, software, and subscriptions to
                 obtain access to electronic research networks for use by judges in the
                 county.



         *See Letter from Honorable Hardy L. Wilkerson, District Attorney, 118th Judicial District, to Honorable Ben
Lockhart, Howard County Judge (Nov. 22, 2002) (attached as exhibit to Request Letter) (on file with Opinion
Committee).
The Honorable       C.E. “Mike” Thomas, III - Page 3                           (GA-0078)




Id. 5 323.023(b)(1)-(3).   Subsection (3) specifically authorizes using the fund for “subscriptions to
obtain access to electronic research networks” for judges. Subsection (2) allows a county to obtain
online research capabilities for the county law library under its authority to purchase or lease “library
materials” and “equipment.”        As this office has observed, “Computer terminals, printers and
programs designed to aid legal research are merely particular items of ‘equipment’ or types of
‘library materials’ within the meaning of the statute.” Tex. Att’y Gen. Op. No. MW-399 (198 1) at
2. Thus, while section 323.023(b) expressly authorizes using the fund to obtain online legal research
services for judges and the county law library, it does not address whether the fund may be used to
obtain such services for state and private attorneys.

         This office has often interpreted chapter 323, subchapter B and its statutory precursors to
mean that a county library fund may not be used for non-statutory purposes. See, e.g., Tex. Att’y
Gen. LO-93-043 (law library fund may not be used to maintain materials not owned by the county
law library); Tex. Att’y Gen. Op. Nos. MW-9 (1979) (fund unavailable to provide library materials
for judges’ exclusive use, superseded by statute, TEX. LOC. GOV’T CODE ANN. 8 323.023 (b)(3)
(Vernon Supp. 2003)); H-1062 (1977) (fund may not be used for construction or renovation of a
library building). The issue here is whether the county may obtain a service for the law library that
also benefits state and private attorneys. Attorneys, as well as the general public, are entitled to use
a county law library’s services. See Dallas County v. Sweitzer, 881 S.W.2d 757, 767 (Tex.
App.-Dallas 1994, writ denied) (purpose of county law library fee is to provide a library that “allows
attorneys and the public access to the state’s jurisprudence”). As we understand the bar association’s
proposal, the online services provider has conditioned the library’s open access account on including
accounts for public and private attorneys. While the benefit is different for attorneys than for other
library patrons, the benefit appears to be an inextricable and incidental feature of the online legal
services offered. Therefore, a court considering the question would likely conclude that the statutes
permit a commissioners court to use the county law library fund to obtain online legal research
services for the library and judges despite an incidental benefit to state and private attorneys. Subject
to any constitutional constraints, it is within the commissioners court’s discretion to decide whether
to use the county law library fund in this manner. See TEX. LOC. GOV’T CODEANN. 5 323.023(c)
(Vernon Supp. 2003).

         The principal constitutional concern your question suggests is whether expenditures under
the proposed contract would be an unconstitutional use of public funds for a private purpose. Under
article III, section 52(a) of the Texas Constitution, a county may not “grant public money or thing
of value in aid of, or to any individual, association or corporation whatsoever.“3 That section and



         3As pertinent   here, the section provides:

                    Sec. 52. (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, or to become a stockholder in such corporation, association or company.

TEX. CONST. art. III, $ 52(a).   Article III, 6 52(a) is but one of several constitutional   prohibitions   against using public
                                                                                                                   (continued...)
The Honorable       C.E. “Mike” Thomas, III - Page 4                           (GA-0078)




comparable constitutional provisions are intended “to prevent the application of public funds to
private purposes; in other words, to prevent the gratuitous grant of such funds to any individual,
corporation, or purpose whatsoever.” Byrd v. City ofDallas, 6 S.W.2d 738,740 (Tex. 1928).

         However, spending public funds for a legitimate public purpose to obtain a clear public
benefit is not an unconstitutional grant of public funds. See Tex. Mun. League Intergovernmental
Risk Pool v. Tex. Workers ’Comp. Comm ‘n, 74 S.W.3d 377,383 (Tex. 2002); EdgewoodIndep. Sch.
Dist. v. Meno, 917 S.W.2d 717,740 (Tex. 1995). Further, an expenditure to directly accomplish a
legitimate public purpose is constitutional even though it incidentally benefits a private interest. See,
e.g., Brazos River Auth. v. Carr, 405 S.W.2d 689, 693 (Tex. 1966) (exchange of state bonds for
corporate bonds to directly accomplish the purposes for which the authority was created was “not
rendered invalid by the fact that the method of handling the transaction is beneficial to the
corporation and its stockholders”); Barrington v. Cokinos, 338 S.W.2d 133,139 (relocating railroad
tracks to eliminate railroad crossings did not violate prohibition against donations to corporations
inTEX. CONST.art. XI, 5 3); Graves v. Morales, 923 S.W.2d 754,757 (Tex. App.-Austin 1996, writ
denied) (state payment of employee’s occupation tax is not an unconstitutional transfer of funds for
private purpose); Young v. City of Houston, 756 S.W.2d 813, 814 (Tex. App.-Houston             [ 1st Dist.]
 1988, writ denied) (city’s enforcement of private restrictive covenants serves a public purpose
despite private benefit); Tex. Att’y Gen. Op. No. H-403 (1974) (state agency may construct a
building on leased land even though building would become the property of the landowner on lease
termination).

         Whether a legislative act serves a public purpose is, in the first instance, a determination the
appropriate legislative body must make. See Young, 756 S.W.2d at 8 14 (determining public purpose
of expenditure is primarily legislative function); City of Coleman v. Rhone, 222 S.W.2d 646, 649
(Tex. Civ. App.-Eastland      1949, writ ref d) (determining public purpose of ordinance is, in first
instance, for municipal governing body). The Texas Supreme Court has stated a three-part test to
determine if a statute accomplishes a public purpose:

                   Specifically, the Legislature must: (1) ensure that the statute’s
                   predominant purpose is to accomplish a public purpose, not to benefit
                   private parties; (2) retain public control over the funds to ensure that
                   the public purpose is accomplished and to protect the public’s
                   investment; and (3) ensure that the political subdivision receives a
                   return benefit.

Tex. Mun. League, 74 S.W.3d at 383. This office has identified similar principles for determining
if a particular expenditure serves a public purpose: “In making an expenditure of county funds that
benefits a private person or entity, . . . a commissioners court will avoid violating article III, section
52 if it (i) determines in good faith that the expenditure serves a public purpose and (ii) places



          ‘( . . .continued)
resources for private purposes. See, e.g., TEX. CONS-I-.art. III, 5 50 (loan of state credit); id. art. III, 9 5 1 (legislative
grants); id. art. VIII, $ 3 (taxes for public purpose); id. art. XI, 5 3 (subscriptions or donations to corporations).
The Honorable C.E. “Mike” Thomas, III - Page 5                  (GA-0078)




sufficient controls on the transaction, contractual or otherwise, to ensure that the public purpose is
carried out.” Tex. Att’y Gen. Op. No. JC-0582 (2002); see also Tex. Att’y Gen. Op. No. GA-0033
(2003) at 8 (applying similar principles to article III, section 5 1 of the Texas Constitution).

         That the legislature has authorized counties to obtain online legal research capabilities for
their law libraries supports the conclusion that obtaining such services as the local bar association
proposes would directly serve a legitimate public purpose. See Davis v. City of Lubbock, 326
S.W.2d 699,709 (Tex. 1959) (legislative determination of public purpose is “highly persuasive”).
Moreover, online legal research services would be one means for the county to provide for an
accused’s constitutional right of access to the courts. See McDonald v. Steward, 132 F.3d 225,230
(5th Cir. 1998) (prisoner has a constitutional right of access to courts through adequate law libraries
or assistance from legally trained personnel).       We believe that the commissioners      court could
reasonably determine that the contract for intemet legal research services as the local bar association
proposes would serve a predominately public purpose and convey a public benefit. Further, the
commissioners court could determine that the proposed contract provides sufficient control to ensure
that the public purpose is carried out. See Key v. Commissioners Court of Marion County, 727
S. W.2d 667,669 (Tex. App.-Texarkana 1987,no writ) (contractual terms may suffice to provide the
requisite control). Consequently, article III, section 52(a) does not preclude a county from obtaining
online legal research services for its law library under a contract that incidentally benefits state and
private attorneys.

         We conclude that neither chapter 323, subchapter B of the Local Government Code nor
article III, section 52(a) of the Texas Constitution prohibits an expenditure according to the local bar
association’s proposal as described. Of course, it is for the commissioners court to decide in the first
instance whether any county expenditure is the appropriate means to serve a legitimate public
purpose and is subject to adequate control.
The Honorable C.E. “Mike” Thomas, III - Page 6               (GA-0078)




                                       SUMMARY

                        A commissioners court may use fees collected under section
               323.023 of the Texas Local Government Code to provide online legal
               research services for the general public, judges, and attorneys, and
               incidental benefit to private attorneys would not render the
               expenditure unconstitutional  under article III, section 52(a) of the
               Texas Constitution.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
