                 THE     ATTORNEY        GENERAL
;                           OF   TEXAS




    Honorable Lisa L. Peterson           Opinion No. JM-1240
    Nolan County Attorney
    P. 0. BOX 1201                       Re:   Authority of county
    Sweetwater, Texas 79556              employees to use eguip-
                                         ment to transport agri-
                                         cultural commodities for
                                         a community action organ-
                                         ization (RQ-2024)
    Dear Ms. Peterson:
         You ask whether the county may authorize the use of its
    employees and equipment to transport agricultural commodi-
    ties made available through the United States Department of
    Agriculture (USDA) for a non-profit organization that has
    been designated a community action agency.
         People for Progress, Inc. (PPI), a non-profit organiza-
    tion funded largely by grants, has been designated by the
    Department of Human Services (DHS) to distribute surplus
    commodities which DHS receives from the USDA in Nolan
    County. YOU relate the following facts relative to the
    distribution of such commodities.
            [PPI] is responsible for transporting the
            commodities from a central distribution point
            to the county, and otherwise complying with
            the DHS regulations.    Funds are available
            though DHS to reimburse the local agencies
            for all expenses incurred in transportation,
            storage, and distribution, even to rental and
            depreciation of typewriters and other office
            equipment.   (Source: Texas Department     of
            Human Resources Publication No. EFAP-85-0,
            1985) Until recently, PPI contracted with a
            private carrier for the transportation of the
            commodities. The carrier isnow    unavailable
            and the County has been asked to provide
            transportation.




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     Section 33.001 of the Human Resources Code addresses
the matter of the distribution of federal surplus commodi-
ties, as follows:
           (a) The department [DHS] is the state
        agency designated to cooperate with     the
        federal government   in administering   the
        distribution of federal surplus commodities
        and other resources.
           (b) The department may cooperate with a
        city or county in any manner necessary for
        the proper operation of this program.
     Section 33.003 of the Human Resources Code provides for
distribution districts and agents. Section 33.003 states:
           (a) The department may establish distri-
        bution districts and employ      distributing
        agents or may make other arrangements neces-
        sary to provide for the efficient distribu-
        tion of commodities and food stamps.

     We do not have the benefit of having the agreement
between DHS and PPI before us. However, we understand your
question to be whether the county has authority to authorize
the use of its employees and equipment to transport the
commodities rather than whether the county is under any
obligation to participate under the agreement.
     You suggest that the use of county employees and
equipment may be violative of the constitutional provisions
prohibiting a commissioners court from granting money or any
other thing of value to any individual, association or
corporation. See Tex. Const. arts. III, § 52: XI, f,3.
While you recoaze   that DHS may make arrangements with the
county for distribution of the commodities, you note that
DHS elected to make arrangements with PPI as its distribut-
ing agent. Under these circumstances, you also raise the
question of whether there is any statutory authority for the
county to participate in the program.
     The commissioners court has the powers        expressly
conferred upon it by the constitution and the legislature,
as well as the implied powers necessary to exercise powers
expressly conferred. Canales V. Lauahlin, 214 S.W.Zd 451
(Tex. 1948).   Article III, section 52, and article XI,
section 3, of the Texas Constitution prohibit a county from




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Honorable Lisa L. Peterson - Page 3     (JM-1240)




donating money or any other thing of value to a corporation.
See Attorney General Opinion JM-1199 (1990).

     Section 11.003 of the Human Resources Code expressly
provides that counties and municipalities are not relieved
from their responsibilities by virtue of the assistance
rendered by DHS. Section 11.003 provides:
       No provision of this title [Hum. Res. Code
       title 21 is intended to release the counties
       and municipalities in this state from the
       specific responsibilities they have         with
       regard to the support of public welfare,
       child welfare, and relief services.
                                      .   . . Funds
       which the counties and muniG&nalitieS may
       aonronriate for the SUDDO t of those Droarams
       may be administered throu:h the dSDartmSnt’S
       local or reaional offices. and if adminis-
       tered in that manner must be devoted exclu-
       sively to the nroarams in the countv or
       municinalitv   m kina    the   aonronriation.
       (Emphasis added.;
     You direct our attention to Attorney General Opinions
M-812 (1971) and JM-431 (1986). Attorney General Opinion
JM-431 concluded that there was neither constitutional nor
statutory authority for a county commissioner to expend
county funds or utilize county-paid personnel to collect aid
for foreign victims of a natural disaster. Attorney General
Opinion M-812 concluded that counties are authorized to
expend county funds for carrying out the food stamp program
where the county has contracted with the State Department of
Public Welfare pursuant to then article 695c, V.T.C.S. (now
codified as various sections of title 2, Human Resources
Code). You reason that in light of the foregoing opinions,
the use of county man-hours and equipment to transport
commodities where DHS has a contract with a private agency
for such purpose would be an abuse of the use of public
funds.
     It is well established that a county may contract with
a private entity to perform services that it might have
performed itself. Attorney General Opinions JM-716 (1987);
JM-65 (1983); H-127 (1973). Section 6 of article 2351,
V.T.C.S., states that the commissioners court shall provide
for the support of residents in the county who are unable to
support themselves.   Section 122.001 of the Health and
Safety Code provides that the commissioners court of a




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county may appropriate and spend money from the general
revenues for public health and sanitation in the county. It
is within the discretion of the county to make expenditures
for public health in the county.    The commissioners court
may make reasonable decisions under section 122.001 to spend
county funds to protect the public health, subject to
judicial review for abuse of discretion.       &.g Attorney
General Opinion JM-1199. Matters such as whether the local
non-profit corporation has the resources and facilities at
its disposal to meet the needs of residents for commodities
to meet basic health requirements would appear to be a
relevant consideration.
     Title IV of chapter 33 of the Human Resources Code
(Acts 1985, 69th Leg., ch. 150, eff. Aug. 26, 1985), rela-
tive to "Emergency Food Assistance to Families and Indivi-
duals" states in the purpose clause and legislative find-
ings:
          'Sec. 1. Purpose. It is the intent of
       the legislature that every Texan legitimately
       in need of emergency food assistance receive
             as raDidlv as Dossible throuah the
       pooDerative efforts of both the Dublic and
       private sectors .
          'Sec. 2. Legislative Findings.       The Leg-
       islature finds that:
           .   .   .   .

           ’ (10)  In 1984, over 500,000 Texans in the
       civilian labor force were unemployed and not
       receiving umemployment
                          * .     insurance benefits.
       Manv of these families and individuals reDort
       havina difficulty aettina an adeouate SUDD~Y
       f                                       r   for
       &"       Still others do not qualify to receive
        food stamps benefits.
           .   .   .   .

          '(13) Responses to a statewide survey
       conducted by the Senate Interim Committee on
       Hunger and Nutrition among food banks indi-
       cated that food     banks face    significant
       difficultv in obtainina a sufficient number
       of freezers, coolers, trucks, and       other
       eouiDment to handle the increasina volume of
                                                               t




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       food that th Y distribute          throuahout   the
       state. (Emphazis added.)
     Whether the findings of the 69th Legislature relative
to people in need of adequate food reflect conditions that
may exist in Nolan County is not a matter within our know-
ledge. Whether local conditions are such that the Nolan
County Commissioners could reasonably assist PPI in distrib-
uting food for the needy is a fact question for the commis-
sioners court to resolve in the first instance.      In the
event that it is determined that such a need exists, the
legislature has evidenced its intent that DHS and a county
cooperate in such a program. Any assistance that the-county
provides must be subject to controls, contractual or other-
wise, to insure that the public purpose is carried out.

                      SUMMARY
          Nolan County is not relieved of        its
       statutory authority to make expenditures for
       public health or its responsibility to pro-
       vide for the support of residents who are
       unable to support themselves because the
       Department of Human Services has designated a
       non-profit organization to distribute agri-
       cultural commodities made available through
       the United States Department of Agriculture.
       Whether the local conditions are such that
       the commissioners court could reasonably use
       county employees and equipment to aid the
       non-profit corporation in the distribution of
       adequate food to the needy is a fact question
       for the commissioners court to resolve in the
       first instance.   In the event such a need
       exists, the legislature has evidenced its
       intent that those in need of emergency food
       assistance receive help through the coopera-
       tive effort of the Department of        Human
       Services and the county.




                                    Attorney General of Texas
MARYRELLER
First Assistant Attorney General




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MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General




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