                 TEE    ATTORNEY           GENERAL
                            OF    TEXAS


                            October    7, 1988




Honorable  Tim Curry                    Opinion   No.   JM-964
Criminal District Attorney
200 West Belknap Street                Re:   Authority   of a county to
Fort Worth, Texas    76196             make   mortgage    payments    on
                                       behalf of    its   indigent   re-
                                       sidents    (RQ-1413)

Dear   Mr.   Curry:

      You ask     whether counties      may make     mortgage    payments
on behalf of      their indigent     residents.      Your   question     is
prompted by     an administrative       rule    adopted by     the   Texas
Department    of Human Services pursuant         to chapter 34 of      the
Human    Resources     Code.    Two   issues     must    be   considered:
whether the county has        statutory    authority   to provide     such
financial    assistance    and whether such statutory       authority    is
consistent    with provisions      of the    Texas Constitution       that
require public       funds   to  be   spent     for   public    purposes.
Attorney   General Opinion JM-942        (1988).

      Counties   in  Texas    are    limited    to   exercising     those
powers that are     specifically     conferred   on   them by     statute
or the constitution,      but   they     have   broad    discretion     in
exercising   express powers.      Canales v. Lauchlin        214   S.W.Zd
451 (Tex. 1948).     The   statutory     authority   for &he     expendi-
ture about which you inquire is          found in chapter 34 of        the
Human Resources     Code.     That    chapter    requires     the   Texas
Department   of Human Services      (the Department)     to establish     a
fund to    assist local    communities     in meeting the needs         of
individuals    and  families     for temporary      emergency     relief.
Hum. Res. Code 5 34.003(a).

      The services     are funded    50 percent     with local     funds
and 50 percent     with   matching     state   funds.     The   statute
authorizes   a county commissioners      court to apply for a grant
to administer    the    program on     behalf   of the    county.    Id.
50 34.002-04.    The county     must submit to      the Department      a
plan for providing      emergency   relief, which     must include      a
description   of the    target population,     eligibility     criteria
to receive services,      the nature     and scope    of benefits     to
be provided,    methods     of    administration,     and    a   budget




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that contains    the   sources   of local    matching   funds.
5 34.006(a),    (b).   The Department    shall adopt    rules    es?%
blishing   criteria   for determining   whether a county or      other
applicant   qualifies   for a grant-in-aid.       Id. § 34.004     (d).
The Department      is also   required to    develop standards      and
procedures   for the program that      permit all counties    in    the
state to participate.       L   5 34.004(f).

      The statute is intended to enable local governments           to
aid needy    individuals,    including    homeless    persons.     The
legislature     has  acknowledged    that   local   government     and
nonprofit   programs  are presently    overburdened    and that    the
inability   to adequately   assist homeless    and needy    residents
causes family, social, and economic       instability,    as set   out
in the purpose clause of chapter 34.

               (a)     The   legislature     finds    that:

                   (1)  economic and demographic   changes
               have created rapid increases  in the number
               of needy persons who are homeless  or with-
               out other necessities of basic existence;

                   (2)  local  governments      and   nonprofit
               service organizations    are   unable to     meet
               the increased  financial     burden caused     by
               those changes   in various       areas   of   the
               state: and

                   (3) the dramatic nature       of the    emer-
               gency relief needs     in various     localities
               has   contributed   to   family     instability
               and threatened    the   social    and   economic
               stability   of those communities.

                (b) The intent    of  this   chapter  is   to
            serve a public purpose    and the goals of    the
            state by providing  state money to match local
            and any   federal money   available   to provide
            emergency  relief to needy persons.

Hum.   Res.   Code    !j 34.001.

      Section 34.007    establishes   procedures     and   guidelines
for counties to    follow in determining       eligibility   and    the
frequency   and duration    of  benefits under      the program.      A
county may not set     the eligibility    level   at "less than      75
percent of the    federal poverty level      based on the      Federal
Office of Management    and Budget    Poverty Index in effect        at




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the time   the plan     is submitted    to the    Department."      Id.
s 34.007(c).      Assistance    "may   include    the   provision    of
utilities,   food, housinq      and clothing    to needy     persons."
Id.   S 34.007(d)     (emphakis   added).     pursuant    to   section
34.004 of chapter 34,      the Department    adopted the     following
rules for provision     of housing assistance     under the program:

            [T]he [county,    other political          subdivision,
            or non-profit    corporation]  may         deliver   the
            following  services:

                (1) mass     shelter     --   purchasing   cots   and
            blankets and     renting     space;

                (2) emergency   rent  --  paying for   one
            month only to prevent eviction and to provide
            housing for the homeless;

                (3)   mortgage  assistance   -- paying for one
            month     only           prevent    eviction   'or
            closure   . . . .:"

40 T.A.C.     S 10.4304(b).

      Chapter    34   authorizes    the   provision     of    temporary,
emergency   housing assistance.       Iiomelessness is       not a pre-
requisite   to assistance.     Rather, prevention      of homelessness
and promotion     of   stability    are primary     purposes      of  the
statute's   enactment.      These   purposes    are    SSNSd     by   the
provision   of one month's mortgage      assistance    to a person      or
family on     the verge    of  homelessness    through     eviction     or
foreclosure    on their home.     This form of assistance          allows
the family     time to   take measures     .to prevent     eviction     or
foreclosure    or to   find other    housing. We do       not see    that
making a mortgage      payment is    significantly     different     from
making a rent payment for individuals         in this situation.

      Indigents   do not need to be totally impoverished       before
assistance   may be provided.    Attorney General Opinion O-2474
(1940)'. The legislature,      in enacting    chapter 34,    clearly
did not intend that     a family must    be totally destitute       in
order to    qualify   for  housing    assistance.     Instead,     one



      1. According   to the Department,    VlosureV8  is a typo-
graphical  error   in the  rule   as adopted.     The  Department
interprets  the rule as applying to "foreclosure.!'




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specific restriction  the legislature places on the   adminis-
tration of the program is that the eligibility    requirement
cannot be set lower than at 75 percent of the poverty     level
established by federal guidelines.

      "It  is   not   an    invalid    delegation     of    legislative
authority  to grant    to an administrative        body the right      to
make rules    to put    into   effect completed       laws."     Housing
c                                          'n ot a     143 S.W.Zd     79
87 (Tex. lz40).      The Department     rule    allowing   counties    t;
make mortgage    payments     on   behalf    of   indigent     residents
directly  achieves the stated goal of chapter 34 of the Human
Resources  Code.

      The statutory    authority  of   chapter 34,   to be   valid,
must be consistent    with provisions    of the Texas Constitution
prohibiting    expenditures    of    public   funds  for    private
purposes.   Article 3, section 52, of the Texas       Constitution
provides:

                (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.

Article  3, section 51 places a similar prohibition        on direct
legislative   grants   to   individuals    or   corporations      for
private purposes.    In our-opinion,    the expenditure    of   state
and county funds for the purpose of making a single mortgage
payment on   behalf   of  an indigent     resident    is   constitu-
tionally permissible.

       The intent of the provisions       of article 3, sections   51
and 52 is    to "prevent     the application   of   public funds   to
private purposes.l@    Bvrd    v. Citv of    Dallas, 6 S.W.2d    738,
740 (Tex. 1928).     On the other     hand, expenditures   made   for
the direct accomplishment      of legitimate   public purposes    are
not unlawful   simply    because private     business may   benefit.
Barrinoton   v. Cokinos,   338 S.W.2d 133, 140 (Tex. 1960).

      The final   determination    of   what   is a proper    public
purpose    is  a  question    for   the   courts:   a   legislative
declaration   of public purpose is      to be given great    weight.
Hisainbotham,    143    S.W.2d    79,    83 '(Tex.    1940).      The




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    legislative   determination   will  not be    overturned  absent    a
    court finding     of  arbitrariness    or lack   of   due  process.
    State v. Citv of     A!&$&    331 S.W.2d    737, 743 (Tex.- 1960);
    Attorney  General Opinion'JM-805     (1987).

          In ~iaoinboth~,      sunra, the supreme court held that the
    purposes    served    by   the   Texas    Housing     Authorities       Law,
    clearance   of   slums and     construction     of   low-rent     housing,
    are proper purposes       for   which    use    of   public    funds     may
    authorized.     143  S.W.2d    79 at    85.    The   stated purpose        of
    diminishing    the adverse     impact of homelessness         articulated
    in section 34.001 of the Human Resources            Code is similar        to
    the legislative      statement    of    purpose     considered     by    the
    Hiosinbotham    court. &.g j&     at 81, 82.       The purposes      SSNSd
    by slum clearance     and   housing development       are not     rendered
    constitutionally     impermissible    because personal gain to some
    private   individual   results.     Davis    v. Citv of Lubbock,         326
    S.W.Zd 699     (Tex.    1959).     Thus,    we   do   not    believe     the
    purposes   stated in     chapter 34 are      per se     unconstitutional
    merely because      a property     owner or     financial     institution
    might ultimately     benefit    from the     receipt of      one rent      or
    mortgage   payment.

           A government      entity    may   contract     with     a    private
    institution    or   another political       subdivision     in    order    to
    provide for     public    or   governmental      programs      for    proper
    public purposes.      Attorney    General Opinion JM-65 (1983).
    Whether    a    particular      expenditure      which      benefits
    individual    is permissible      under    the constitution        must    Z
    determined     on   a case-by-case       basis.    CornDare        Attorney
    General    Opinion    JM-103     (1983)    (permitting      a    county    to
    contract   for the operation      of a recreation     center to be used
    by elderly residents)        &     Attorney    General Opinion         MW-22
     (1979)   (concluding     that    authorization      of   utility       bill
    payments   on behalf of elderly persons violates            the constitu-
    tion).    In   order    to be   constitutionally        permissible,       an
    expenditure    of public funds must be for a public purpose and
    must include controls to ensure          that the public purpose           is
    carried out.      See Attorney     General Opinions MW-373           (1981);
    MW-423    (1982) ;     JM-157     (1984);     JM-768       (1987).        The
    expenditures      authorized    by    chapter    34 meet       both    these
    requirements.

          A public   purpose is   served when     temporary   emergency
    assistance   is provided to     needy families     and  individuals
    living in    the community.     The   obvious societal    costs    of
    homelessness   make housing development     and housing assistance
    of particular   public concern.     Expenditures   made pursuant  to




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                                                                                         --,


chapter 34   appear likely              to   produce       savings     in     existing
social welfare and housing              programs.

      Controls established     by   chapter 34     ensure that     funds
authorized   by   the statute     will be   used to     carry out     the
public purpose expressed      by   the legislature.      Counties     may
receive a grant-in-aid      only if they provide evidence        showing
a need for    assistance    in accordance     with the    Department's
rules.   Hum. Res. Code § 34.004(c).        The counties must       also
provide a detailed plan for providing         emergency   relief.     Id.
5 34.006 (a),      (b) - Restrictions    on   administrative      costs,
auditing provisions,       and reporting     requirements    also   help
ensure that     the   public purpose     justifying     the   emergency
assistance   program will be carried out.

                                 SUMMARY

               A county      may   make mortgage     payments     on
            behalf    of    indigent    residents    to    prevent
            eviction     or     foreclosure    as    part   of     a
            temporary    emergency    relief program for      needy
            persons approved 2,;:;          D;;art$enkh;f     Human
            Services     under                                Human
            Resources    Code.




                                               l-I.--k
                                                   Very   truly   yo    ,
                                                           .

                                               -
                                                   JIM      MATTOX
                                                   Attorney  General        of Texas

MARYKKLLER
First  Assistant      Attorney      General

LOU MCCREARY
Executive  Assistant          Attorney       General

JUDGE ZOLLIE STEAKLKY
Special Assistant  Attorney              General

RICK GILPIN
Chairman,  Opinion          Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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