Untitled Texas Attorney General Opinion ( 1999 )

OFF,CE OF THE ATTORNEY GENERAL STATE OF TEXAS
JOHN CORNYN
September 22, 1999
The Honorable Barry B. Telford Opinion No. JC-0113
Chair, Committee on Calendars
Texas House of Representatives Re: Whether article III, section 52 of the
P.O. Box 2910 Texas Constitution precludes a school district
Austin, Texas 78768-2910 from participating in “Texas Safe Sports
Week” (RQ-0056)
Dear Representative Telford:
You ask whether article III, section 52 of the Texas Constitution precludes a school district
from participating in “Texas Safe Sports Week,” a program sponsored by a private foundation. We
conclude that article III, section 52 does not preclude a school district from expending school district
funds or other resources on “Texas Safe Sports Week” activities if the school district board of
trustees (i) determines that any expenditure in connection with the program serves anecessary school
district purpose and (ii) places sufficient controls on such expenditures to ensure that the school
district purpose is carried out.
With your request, you attach a letter from the Kent Waldrep National Paralysis Foundation
(the “Foundation”) explaining that the purpose of “Texas Safe Sports Week” is to “provide
educational materials to school administrations [and] athletic staffs; ” “to create a public awareness
that there is a risk involved in all life activities” and of “the benefits of athletics in the educational
setting;” and “to raise funds for research into the prevention and rehabilitation of athletic injury.”
Letter from Kent Waldrep, President and CEO, Kent Waldrep National Paralysis Foundation, to
Honorable John Comyn, Attorney General (Apr. 1, 1999) (on file with Opinion Committee). Your
request letter indicates that the Foundation is particularly concerned about Attorney General Opinion
JM-431, a 1986 opinion of this office that concludes that article III, section 52 precludes a county
commissioner from using county funds or personnel to collect funds for the American Red Cross for
earthquake victims. See Tex. Att’y Gen. Op. No. JM-43 1 (1986) at 2-3. It also concludes, however,
that incidental use of space in the county courthouse for aid collection efforts does not violate article
III, section 52. See id. at 4. Based on the description of “Texas Safe Sports Week” and your
reference to Attorney General Opinion JM-43 1, we gather that your primary concern is whether
school districts may use school district funds and other resources, including personnel and property,
to raise funds for the Foundation in light of article III, section 52.
Article III, section 52(a) prohibits the legislature from authorizing any political subdivision
of the state “to lend its credit or to grant public money or thing of value in aid of, or to any
The Honorable Barry B. Telford - Page 2 (X-0113)
individual, association or corporation whatsoever.” TEX. CONST. art. III, 9 52(a). A similar
provision in article III, section 51 states that “[tlhe Legislature shall have no power to make any
grant or authorize the making of any grant of public moneys to any individual, association of
individuals, municipal or other corporations whatsoever.” Id. 5 51. The purpose of article III,
sections 5 1 and 52 is the same - to prevent the gratuitous application of public funds to private
individuals or entities. See Byrd v. City of Dullus, 6 S.W.2d 738, 740 (Tex. 1928); Graves v.
Morales, 923 S.W.2d 754,757 (Tex. App.-Austin 1996, writ denied). But the constitution does not
bar a governmental expenditure that benefits a private interest if it is made for the direct
accomplishment of a legitimate public purpose. See Byrd, 6 S.W.2d at 740. “A transfer of funds
for a public purpose, with a clear public benefit received in return, does not amount to a lending of
credit or grant ofpublic funds in violation of article III, sections 5 1 and 52.” Edgewood Indep. Sch.
Dist. v. Meno, 917 S.W.2d 717,740 (Tex. 1995).
Attorneys General have long opined that sections 5 1 and 52 do not preclude the state or a
political subdivision from making an expenditure of public money that benefits a private person or
entity if the appropriate governing body (i) determines in good faith that the expenditure serves a
public purpose and (ii) places sufficient controls on the transaction to ensure that the public purpose
is carriedout. See, e.g., Tex. Att’y Gen. Op. Nos. DM-394 (1996), DM-256 (1993) at 2-3, JM-1146
(1990), JM-551 (1986) H-966 (1977). In the case of independent school districts, the board of
trustees must determine that an expenditure serves a valid school district purpose, and must impose
sufficient controls, subject to judicial review. See Tex. Att’y Gen. Op. No. DM-256 (1993) at 2-3
(an independent school district board of trustees must determine in first instance that provision of
assistance to nonprofit foundation serves a school district purpose under article III, section 52); Tex.
Att’y Gen. LO-93-93, at 2-3 (an independent school district board oftrustees must determine in first
instance that the use of school district general funds to award college scholarships to high school
graduates based on academic ranking serves a school district purpose under article III, section 52).
In addition, a board of trustees is limited by statute to expending school district funds for “purposes
necessary in the conduct of the public schools,” TEX. EDUC.CODEANN. 5 45.105(c) (Vernon Supp.
1999) (local school funds may be used for “purposes necessary in the conduct of the public schools
determined by the board of trustees”); Tex. Att’y Gen. Op. No. JM-1265 (1990) at 3 (opining that
term “necessary” in predecessor to section 45.105(c) of the Education Code “appears to mean
appropriate or conducive to the conduct of a public school rather than indispensable thereto”), and
must use school property for school purposes, see Tex. Att’y Gen. Op. No. DM-256 (1993) at 3.
Accordingly, we conclude that article III, section 52 does not preclude a school district from
expending school district funds and other resources on “Texas Safe Sports Week” activities if the
school district board of trustees (i) determines that any expenditure in connection with the program
serves a necessary school district purpose and (ii) places sufficient controls on such expenditures to
ensure that the school district purpose is carried out. We caution, however, that judicial and attorney
general opinions construe article III, section 52 to preclude political subdivisions from making
unconditional gifts or donations to private entities - expenditures which, by definition, lack
sufficient controls to ensure that an authorized public purpose is achieved. See, e.g., Kordus v. City
of Garland, 561 S.W.2d 260 (Tex. Civ. App.-Tyler 1978, writ refd n.r.e.) (holding that taxpayer
The Honorable Barry B. Telford - Page 3 (X-0113)
had standing to bring action against city to enjoin it from making donations to private corporation
in violation of article III, section 52) (citing Tex. Att’y Gen. Op. No. H-397 (1974)); Tex. Atty Gen.
Op. Nos. JM-43 1(1986) (county may not donate mnds or personnel to raise funds for American Red
Cross for earthquake victims); MW-329 (1981) (concluding that because a county not authorized
to provide assistance to the disabled and therefore could not contract for such services, a contribution
to anonprofit organization organized to provide such assistance wouldviolate article III, section 52);
H-l 189 (1978) (unconditional grant of funds by county to private day care would constitute a
donation of public funds in violation of article III, section 52); H-397 (1974) (county may not pay
dues to chamber of commerce); M-661 (1970) (county may not offer grant ofpublic funds to private
religious charitable institutions); Tex. Att’y Gen. LO-96-035, at 2 (because article III, section 52
prohibits “outright gifts and donations to private entities,” county may not donate county tax funds
to nonprofit industrial development organization).’ This construction is of long-standing. See, e.g.,
Tex. Att’y Gen. Op. Nos. O-7197 (1946) (countymaynot donatecountyfunds to the building within
that county ofaprivately-chartered cooperative hospital); O-5563 (1943) (county may not contribute
to private charitable institutions, including homes for the elderly and homes for impoverished
children); O-l001 (1939) (county may not contribute public funds to Tuberculosis Association,
American National Red Cross or to any other private charitable organization). Thus, article III,
section 52 prohibits school districts from donating school district funds or other resources to the
Foundation. But a school district may expend school district funds or other resources in connection
with the fund raising activities of the Foundation if the board of trustees (i) determines that the
activities serve anecessary school district purpose, such as student education or instruction, and (ii)
imposes sufficient controls to ensure that the school district purpose is achieved.
‘See also Tex. Att’y Gen. LO-96-035, at 2 n.1 (noting that while some attorney general opinions have
concluded that certain types of “donations” are permissible under article III, section 52, use of the term “donation” in
connection with those expendihrres is a misnomer given that the opinions require those expenditures to serve a public
purpose and to include sufficient controls to ensure public purpose is achieved).
The Honorable Barry B. Telford - Page 4 (X-0113)
SUMMARY
Article III, section 52 of the Texas Constitution does not
preclude a school district from expending school district funds or
other resources on “Texas Safe Sports Week” activities if the school
district board of trustees (i) determines that any expenditure in
connection with the program serves a necessary school district
purpose and (ii) places sufficient controls on such expenditures to
ensure that the school district purpose is carried out.
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JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee