Attorney General Opinion JM-1240

THE ATTORNEY GENERAL ; OF TEXAS Honorable Lisa L. Peterson Nolan County Attorney P. 0. BOX 1201 Sweetwater, Texas 79556 Opinion No. JM-1240 Re: Authority of county 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. p. 6594 Honorable Lisa L. Peterson - Page 2 (JM-1240) 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 p. 6595 I 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&nalitie S 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 (Emphasis added.; the aonronriation. 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 p. 6596 Honorable Lisa L. Peterson - Page 4 (JM-1240) 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 for public health in the county. expenditures The commissioners court may make reasonable decisions under section 122.001 to spend county funds to protect the public health, judicial review for abuse of discretion. subject to General Opinion JM-1199. &.g Attorney 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 relevant consideration. would appear to be a 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. islature finds that: The Leg- . . . . ’ (10) In 1984, over 500,000 Texans in the civilian labor force were unemployed and not receiving umemployment insurance benefits. Manv of these * . familie s 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 P. 6597 Honorable Lisa L. Peterson - Page 5 (JM-1240) 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 p. 6598 Honorable Lisa L. Peterson - Page 6 (JM-1240) 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 p. 6599