                                             KEN PAXTON
                                        ATTORNEY GENERAL OF TEXAS




                                              October 10, 2016



The Honorable Billy W. Byrd                              Opinion No. KP-0116
Upshur County Criminal District Attorney
405 North Titus Street                                   Re: Whether a county comm1ss10ners court
Gilmer, Texas 75644                                      has authority to expend county funds on holiday
                                                         decorations and county literacy programs
                                                         (RQ-0105-KP)

Dear Mr. Byrd:

         You ask two questions about the county commissioners court's authority to expend county
funds on holiday decorations and county literacy programs. 1 You first ask whether Texas Local
Government Code section 381.004 or any other statute authorizes a commissioners court "to
expend county funds to place holiday lighting and decorations in and on county buildings and
facilities." Request Letter at 1.

        Commissioners courts have only those powers expressly granted by the constitution or by
statute and those necessarily implied. See City of San Antonio v. City of Boerne, 111 S.W.3d 22,
28 (Tex. 2003). A commissioners court acts as the county's legislative body and is responsible for
budget-making and allocating county funds for county purposes. See TEX. CONST. art. V, § 18(b)
(granting a commissioners court "such powers and jurisdiction over all county business, as is
conferred by this Constitution" or by statute); Tex. Att'y Gen. Op. No. GA-0857 (2011) at 2:
While a commissioners court has "broad discretion in conducting county business, the legal basis
for any action taken must be grounded ultimately in the constitution or statutes." Guynes v.
Galveston Cty., 861S.W.2d861, 863 (Tex. 1993).

        A commissioners court's responsibilities include providing, equipping, and maintaining
the county courthouse and buildings. TEX. Loe. Gov'T CODE § 291.001; see also Dodson v.
Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.-Waco 1938, writ dism'd) ("The duty to provide
a courthouse includes the obligation to furnish same with suitable and necessary equipment.");
Tex. Att'y Gen. Op. No. GA-1018 (2013) at 2 (determining that the commissioners court's
authority to provide for a courthouse implies authority to reasonably regulate its use). No statute
specifically addresses county expenditures for holiday lighting and decorations on county
buildings. You reference section 381.004 of the Local Government Code, which provides in part:


         1
          See Letter from Honorable Billy W. Byrd, Upshur Cty. Crim. Dist. Att'y, to Office of the Tex. Att'y Gen.
at I (Apr. 6, 20 I 6), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Billy W. Byrd - Page 2                 (KP-0116)



                 (b) To stimulate business and commercial activity in a county, the
                     commissioners court of the county may develop and administer
                     a program:

                      (1) for state or local economic development;

                      (2) for small or disadvantaged business development;

                      (3) to stimulate, encourage, and develop business location and
                          commercial activity in the county;

                      (4) to promote or advertise the county and its vicinity or conduct
                          a solicitation program to attract conventions, visitors, and
                          businesses;

                     (5) to improve the extent to which women and minority
                         businesses are awarded county contracts;

                     (6) to support comprehensive literacy programs for the benefit
                         of county residents; or

                     (7) for the encouragement, promotion, improvement, and
                         application of the arts.

TEX. Loe. Gov'T CODE § 381.004(b). Subsection (c) authorizes a comm1ss1oners court to
"contract with another entity for the administration of the program; ... use county employees or
funds for the program; and . . . accept contributions, gifts, or other resources to develop and
administer the program." Id. § 381.004(c). Thus, section 381.004(c) specifically authorizes a
commissioners court to expend county funds for a program that serves a purpose listed in
subsection (b ). Whether placing holiday lighting and decorations in and on county buildings serves
one or more of these purposes will depend on the particular facts and therefore cannot be resolved
in an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0091 (2015) at 2 (stating that
"[t]act finding is beyond the scope of an attorney general opinion"). 2 Rather, under section
381.004, the commissioners court must determine in the first instance, subject to judicial review,

         2
           A 1940 attorney general opinion answered negatively the question of\yhether a commissioners court "may
legally expend county funds to match or augment funds raised by the local Chamber of Commerce or the retail
merchants of Tyler to provide light fixtures necessary to decorate the Court House lawn during the Christmas season."
Tex. Att'y Gen. Op. No. 0-2928 (1940) at 1-2. The opinion determined that such an expenditure was illegal, not
because any law prohibited it, but because the attorney general was unable to locate statutory or constitutional
authority that "clearly authorized" a commissioners court to make the expenditure. Id. at 2. Thus, the opinion does
not provide guidance for determining a commissioners court's authority under section 38 I .004 of the Local
Government Code, which was first enacted in 1989. See Act of May 28, 1989, 71st Leg., R.S., ch. 1060, § 3, 1989
Tex. Gen. Laws 4305, 4307, amended by Act of June 1, 1997, 75th Leg., R.S., ch. 1037, § 3, 1997 Tex. Gen. Laws
3875, 3877; Act of May 8, 2001, 77th Leg., R.S., ch. 254, § I, 2001 Tex. Gen. Laws 491, 491; Act of May 25, 2001,
75th Leg., R.S., ch. 1154, § 1, 2001 Tex. Gen. Laws 2560, 2560; Act of May 20, 2003, 78th Leg., R.S., ch. 1275,
§ 2(109), 2003 Tex. Gen. Laws 4140, 4146; Act of May 29, 2015, 84th Leg., R.S., ch. 1236, § 12.003, 2015 Tex.
Gen. Laws 4096, 4135 (codified at TEX. Loe. Gov'T CODE § 381.004).
The Honorable Billy W. Byrd - Page 3                   (KP-0116)



whether a particular program serves a purpose authorized by the statute. See TEX. Loe. Gov'T
CODE§ 381.004(b).

        In considering whether to expend funds for holiday lights and decorations, if the
decorations include a religious aspect, the commissioners court should further consider whether
the particular display complies with the United States Supreme Court's Establishment Clause
jurisprudence. See U.S. CONST. amend. 1. A holiday display containing a religious aspect may
raise constitutional issues when placed on public property or funded with public funds. See Skoros
v. City of New York, 437 F.3d 1, 3 (2d Cir. 2006) ("No holiday season is complete, at least for the
courts, without one or more First Amendment challenges to public holiday displays."). Two
Supreme Court cases provide Establishment Clause standards specifically concerning holiday
displays and are informed by the Court's latest Establishment Clause case from last term. See
generally Cty. ofAllegheny v. Am. Civil Liberties Union, 492 U.S. 573, 593-94 (1989), abrogated
on other grounds by Town ofGreece v. Galloway, 134 S. Ct. 1811, 1821 (2014); Lynch v. Donnelly,
465 U.S. 668, 672-78 (1984).

         In Lynch, the Court considered a display on private property located in a city's shopping
district. 465 U.S. at 671. The display consisted of city-owned "decorations traditionally associated
with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's
sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters
as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that
reads 'SEASONS GREETINGS,"' as well as a nativity scene that had been part of the display for
40 or more years. Id. Considering the display as a whole and the city's actual motives for including
the religious element, the Court upheld the display because celebrating the Christmas season had
a legitimate secular purpose and did not have a primary effect of advancing religion. Id. at 681-
85. 3 The concurring opinion by Justice O'Connor provided a "clarification of ... Establishment
Clause doctrine," analyzing the display using an endorsement test, focusing on "institutional
entanglement and on endorsement or disapproval of religion." Id. at 687-89 (O'Connor, J.,
concurring). Such an inquiry requires that "[e]very government practice must be judged in its
unique circumstances to determine whether it constitutes an endorsement or disapproval of
religion." Id. at 694.

        In County of Allegheny, the Supreme Court upheld a display of a menorah placed near a
Christmas tree outside of a county building, but held that a creche located in the main part of the
courthouse violated the Establishment Clause. Cty. ofAllegheny, 492 U.S. at 579, 601-02, 620-
21. In examining the effect of a display in context, the endorsement inquiry asks whether a
reasonable, informed person would conclude that the government action was endorsing religion.
Id. at 630-34 (O'Connor, J., concurring); see also McCreary Cty. v. ACLU of Ky., 545 U.S. 844,


          3
            The Court analyzed the inclusion of the creche utilizing the three-part test in Lemon v. Kurtzman, requiring
the government's action to (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits
religion, and (3) not foster an excessive entanglement between government and religion. Lynch, 465 U.S. at 679-85
(citing lemon v. Kurtzman, 403 U.S. 602 ( 1971 )). In another recent opinion regarding the Establishment Clause, we
highlighted some of the difficulty the Court has had in determining whether to continue to use the lemon test. See
Tex. Att'y Gen. Op. No. KP-0109 (2016) at 4 n.4. While the test has seen more use with regard to displays than
prayer, the continued viability of the test remains in doubt.
The Honorable Billy W. Byrd - Page 4                   (KP-0116)



866 (2005). The central guiding principle from Lynch and Allegheny is whether any religious
component in a holiday display or decorations "has the effect of endorsing religious beliefs, and
the effect of the government's use of religious symbolism depends upon its context." Cty. of
Allegheny, 492 U.S. at 597. Thus, a county is not prohibited from sponsoring a display that "is
essentially like those to be found in hundreds of towns or cities across the Nation-often on public
grounds-during the Christmas season," Lynch, 465 U.S. at 671, provided that, when viewed in
context, the display as a whole has a secular purpose, does not have a primary effect of endorsing
religion, and does not foster an excessive entanglement with religion.

        Finally, the Supreme Court's most recent assessment under the Establishment Clause was
last term in Galloway, 134 S. Ct. 1811. County ofAllegheny had dicta responding to a criticism
of the dissent indicating that legislative prayer in a previous case was permissible because the
chaplain had "'removed all references to Christ."' Galloway, 134 S. Ct. at 1821 (quoting
Allegheny, 492 U.S. at 603). The Court clarified that the Establishment Clause did not demand
nonsectarian prayer. 4 Ultimately, the Court upheld a sectarian prayer that opened a city council
meeting because it was sufficiently rooted in history and noncoercive as to comply with the
Establishment Clause. Id. at 1824-28. The Court's analysis is a demonstration that it is trending
away from the Lemon v. Kurtzman test and toward an assessment of history and coercion.

        Applying either the Lemon test from Lynch or the history .and coercion analysis from
Galloway, a court would likely conclude the holiday lights and decorations you ask about would
not violate the Establishment Clause. The Lemon test assesses purpose, effect, and entanglement.
Lynch, 465 U.S. at 679-85. Holiday lights and decorations posed no Establishment Clause
problem for the Court in Lynch when it was applying the Lemon test, and there is no reason to
believe they would pose an Establishment Clause problem here. Id at 671. And under the analysis
of Galloway, the historical, secular use of holiday lights and decorations and the fact that they are
passive and not coercive further indicate that a Court would likely conclude that they do not violate
the Establishment Clause.

        You also ask whether a commissioners court is authorized under Texas Local Government
Code section 381.004 or any other statute, "to expend county funds in order to contract with or
donate to a local county literacy program in order to provide literacy programs for the benefit of
county residents[.]" Request Letter at 1. Section 381.004 expressly authorizes a commissioners
court to contract for or to pay county funds for a program to "support comprehensive literacy
programs for the benefit of county residents." TEX. Loe. Gov'T CODE§ 381.004(b)(6), (c)(l), (3).

        Even if statutorily authorized, however, an expenditure of county funds is subject to the
constitutional prohibition against gratuitous donations of public funds to other entities. See TEX.
CONST. art. III, § 52(a) (prohibiting the Legislature from authorizing counties, cities, or other
political subdivisions to grant money to private entities); Tex. Mun. League Intergov 'ti Risk Pool


         4Galloway, 134 S. Ct. 1821-22 ("Nor did the Court imply the rule that prayer violates the Establishment
Clause any time it is given in the name of a figure deified by only one faith or creed. To the contrary, the Court
instructed that the content of the prayer is not of concern to judges, provided there is no indication that the prayer
opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." (citation
and quotation marks omitted)).
The Honorable Billy W. Byrd - Page 5           (KP-0116)



v. Tex. Workers' Comp. Comm 'n, 74 S.W.3d 377, 383 (Tex. 2002) (explaining that article III,
section 52(a) prohibits gratuitous payment of public money). While section 381.004 contemplates
payments to or contracts with a noncounty entity, a county may constitutionally expend public
funds to directly accomplish a legitimate public purpose even though the expenditure incidentally
benefits a private interest. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966).
The Texas Supreme Court enumerated a three-part test in Texas Municipal League that determines
whether an expenditure serves a public purpose, requiring that the political subdivision making the
expenditure (1) ensure that the expenditure'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 384. The commissioners court must determine in the first
instance, subject to judicial review, whether an expenditure, be it for holiday lights and decorations
or for county literacy programs, meets these constitutional requirements. See Tex. Att'y Gen. Op.
No. KP-0007 (2015) at 2 (stating that the determination of whether a county expenditure is
constitutional must be made initially by the commissioners court, subject to judicial review).
The Honorable Billy W. Byrd - Page 6       (KP-0116)



                                    SUMMARY

                      Under section 381.004 of the Local Government Code, a
              commissioners court may expend county funds on holiday lights and
              decorations on county buildings and facilities, and may expend
              county funds to contract with or donate to a local county literacy
              program, to the extent that such expenditures serve purposes
              specified in the statute. Whether a particular expenditure serves a
              purpose specified in section 381.004 and meets the requirements of
              article III, section 52(a) of the. Texas Constitution is for the
              commissioners court to determine in the first instance, subject to
              judicial review. A court would likely conclude that such a holiday
              light display is not a violation of the Establishment Clause.

                                           Very truly yours,




                                           KEN PAXTON
                                           Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
