Case Information

*1 QBffice of tfje ~2Utornep @eneral

&ate of IBexae

DAN MORALES December 7,1992 ATTORNEY GENERAL

Honorable Gonzalo Barrientos Gpinion No. DM-185 Committee on Nominations Re: Whether a municipality may esta- Texas State Senate blisb a program for econoniic develop P.O.Box1206S ment pursuant to section 380.001 of the Austin,Texas 78711 Local Government Code, and related

questions (RO-464) Dear Senator Barrientos:

You have asked several questions about the constitutionality and proper construction of section 380.001 of tbe Local Government Code. Specikally, you ask the following:

1. I.5 the establishment of a proSram for economic development by a mmdcipality pursuant to Section 380.001 of the Imal Govermnent Code constitutional?

2. Do each of the incentives outlined [in your letter], when used singdarly or in combination, constitute a “program.. . to promote state or local economic development” as that phrase is used in Section 380.001 of the Local Government Code? 3. Can a municipality issue bonds to fund incentives which are included in a. program for economic development established under Section 380.001 of the Local Government code?

4. Are there any constitutional or statutory prohiiitions or preemptions that would preclude inclusion of any of the incentives outlined [in your letter] in a program for economic development established under Section 380.001 of the Local Government Code? *2 KM-185)

The legislature enacted section 380.001 of the Local Govermnent Code after 1987, when voters approved adding article III, section 52-a to the Texas Constitutions Section 52-a provides as follows:

Notwithstanding any other provision of this constitution, the legislature may provide for the creation of programs and the making of loans and grants of public money, other than money otherwise dedicated by this constitution to use for a different purpose, for the publk purposes of development and diversification of the economy of the state, the elimination of unemployment or underemployment in the state, the stimulation of agrkultural innovation. the fostering of the growth of enterprises based on agriculture, or the development or expansion of transportation or commerce in the state. Any bonds or other obligations of a county, municipality, or other political subdivision of the state that are issued for the purpose of making loans or grants in connection with a program authorized by the legislature under this section and that are payable from ad valorem tares must be approved by a.vote of the majority of the registered voters of the cotmty, municipality, or political subdivision voting on the issue. An enabling law enacted by the legislature in anticipation of the adoption of tbis amendment is not void because of its anticipatory character.

One might argue that section 52-a authorizes the legislature to create state- wide economic development programs, but it does not authorize the legislature to delegate such responsibilities to counties, municipalities, or other political subdivisions. Admittedly, the first sentence is ambiguous on this point. Reading the section as a whole, however, section 52-a clearly envisions that a county, municipality, or other political subdivision may issue bonds to pay for its economic development program. Legislative history and this office’s prior interpretation of section 52-a supports this construction of the section.

In hearings on the resolution proposing to place this constitutional amendment before the voters, a witness speaking before the House Committee on Science and Technology explained the proposed amendment as one that does not authorize, without further constitutional amendment, the state to issue general obligation bonds for the purpose of encouraging economic development in the state. Hearings on H.J.R. 5 Before the House Committee on Science and Technology, *3 Honorable Gonxalo Barrientos - Page 3 (m-185)

70th Leg. (Mar. 3, 1987) (statement of Jerry Turner) (copy on file with House Committee Coordinator). Rather, according to the witness, this amendment would authorize tbe legislature, if it chose to do so, to enact legislation that would empower local governments to issue bonds, provided that the people voting in the affected taxing jurisdiction approved the issuance of such bonds at an election. Id. Signiticantly, according to another witness, this amendment to the constitution author&s a local government to provide any kind of assistance for the purposes listed in the amendment, but only if the legislature has enacted enabling legislation permitting the kind of program the local government seeks to establish, and, if the local government seeks to use any tax funds, a majority of the voters voting at a referendum on the issue have approved. Id. (testimony by Robert Randolph, member of Speaker’s Economic Development Committee) (copy on tile with House Committee Coordinator).

This office examined article IQ section 52-a in Attorney General opinion JM-1227 (1990) in reference to a project the City of Marlin proposed, in which the City of Marlin contractually would agree with the Texas Department of Commerce to take responsibility for the creation of jobs by a private entity. Attorney General opinion JM-1227 at 1. If the private entity failed or failed to provide the jobs it represented it would provide in its application for a loan from the Department of Commerce, the City of Marlin would reimburse the Department of Commerce apro mta portion of the department’s loan to the private entity. Id. This office stated that the legislature and the voters intended section 52-a to create exceptions to pre- existing constitutional prohibitions on the lending of public credit.1 See id at 3 (and sources cited therein); see also Texas Const. art. III, $9 51.52. We advised, however, that article III, section 52-a does not by itself expand a municipality’s authority to lend credit, but it authorizes the legislature to enact laws that do so. Attorney General Gpinion JM-1227 at 3. Thus, the legislature must enact enabling legislation

lIn Attorney General Gpiioo JhGl255 (lWl), this &cc stated that article III, section 52-a of the Texas Constitution expands tbe constitutional detkition of public purpose to include economic dewlopmeat and diwhfication, elimination of unemployment end underemployment, stimulation and poutb of agricelhue, and the expansion of state transportation and commerce. &omey General Gpbdm J?vf-Us5 at 8. H-r, neither the hguage of section 52-a nor of any relcnnt commentary suggests that the voters and Iegishhue, by enacting section 52-a, %tended to change the require&nts that public resources and powers be used for ‘the direct accompli&meat of a public purpose’ end that traasactiors using such resources end powers a~ntain sufficient controls ‘to insure that the public purpose be carried out.‘” Id et &9 (and sowccs cited t&rein). *4 0X-185) to authorize the proposed transaction between the department of commerce and the City of Marlin. Id.

Section 380.001 of the Local Government Code provides as follows: (a) The governing body of a municipality may establish and provide for the administration of one or more programs, includ- ing programs for making loans and grants of public money and providing personnel and services of the municipality, to promote state or local economic development and to stimulate business and commercial activity in the municipality.

(b) The governing body may:

(1) administer a program by the use of municipal personnel;

(2) contract with the federal government, the state, a political subdivision of the state, a nonprofit organization, or any other entity for the administration of a program; and (3) accept conmbutio~ gifts. or other resources to develop and administer a program.

The author of House Bill 3192, which proposed section 380.001 of the Local Government Code, stated before the House Committee on Urban Aftairs that this emxctment would be the enabling legislation for article III, section 52~a.2 Hearings

%prem~h hkCdough, the author of House Bill 3192, testified before the House Chmdtt~oaUrban~that~on380.001oftheLoealG ovemment Chle, if enacted, would authorize a municipality to do the same thing that the legislature +d just authorized countim to do, i.e., to participate in economic development matters. Hearings on H.B. 3192 Before the House. committee on Urban Affaiq 71st Leg. (May l&1989) (testimony of Representative McCollough, author) (copy on 6le with House C?mmittee Coordinator). Representatin McCollough did not cite a particular act or code section; however, we believe he was referring to section 381.004 of the Local Govcrnmwt Code, which the legislature added to the Local Gmrnment code by Acts 1989,7lst Leg., ch. 1060,$3, at 4307. Se&m 381JW(b) authorizes the fzommikoners court of a uxmty to stimulate business and commercial activity in the county by developing and administering a program for state or local euxmmic developmer& for small or disadvaatagcd business development; to stimulate, and develop business location and commercial activity in the coutlty, or to improve the wco-, extent to wbicb women and minority busioe.ws are awarded county contrac& Subsection (c)(3), (4) explicitly authoriws a wlmty wmmissiowrs court to use county employees or funds for the program, *5 UN-185) on H.B. 3192 Before the House Committee on Urban Affaim, 71st Leg. (May 15, 1989) (testimony of Representative McCoIIough, author) (copy on file with House fhumittee Coordinator). By enacting section 380.001, the legislature evidently intended to authorize municipalities to perform any of the functions that article III, section 52-a permitted the legislature to delegate. In our opinion, section 380.001 of the Locai Government Code properly implements article III, section 52-a; thus, in answer to your Srst question. we believe that section 380.001 of the Locai Government Code is cotWitutionaLs

Your second question asks us to delineate the kind of incentives that a municipality properly may include in a “program.. . to promote state or local economic development.” The legishtture did not expressly instruct what such a program would be. In testimony before the Senate Committee on Intergovem- mental Relations, the author of Senate BiIi 1820, a companion bill to House Bili 3192, stated that the bill would authorize cities to establish loan programs and to use municipal personnel for the purpose of attracting new businesses to the area and assisting existing businesses to expand. Hearings on S.B. 1820 Before the Senate Committee on Intergovermnentai ReIations, 71st Leg. (May 18,1989) (testimony of Senator Carriker, author) (copy on file with Senate Staff Setices); see &o id. (testimony of Bob Hart, City Manager for City of Georgetown) (indicating Georgetown’s interest in establishing direct lending program). It is outside the scope of the opinion process, however, to determine specificaily which incentives, when offered singuhuiy or in combination, constitute a “program.. . to promote state. or Iocai economic development.”

You next ask whether a municipality may issue bonds to fund incentives that it desires to include in a “program . . . to promote state or local economic development” that the municipality has established under section 380.001 of the (fochotc continued)

and to accept contriiutions, gifts, or 0th rcsourccs to &v&p and administer the program. We found no cases or attomcy gcmral opinions iaterprethg s&ion 381.004.

Jwe bclicvc, however, that a municipality that imtitutcs a program to promote state or local eumomic dtmdopmeot pursuant to s&ion 3&X001 of the Local Gommm cot Code must comply with other wm6tutid requirements. See supm note 1. Specihdy, the municipality must determine that itis~publicfundsandrcsourctsforthcdircdaccomplishmentofapublicpurposcandthat tramxtiom using the. public hods and resources contain sufticimt controls to ensurc that the public purpose is carried out. *6 (aSl85)

Local Govermnent Code. Significantly, section 380.001 does not explicitly provide that a municipality may finance such a program through bond revenues. However, the municipality about which you specifically inquire is a home-rule municipality. A home-rule municipality has “[t]be power to issue bonds upon the credit of the city for . . . public purposes in the amount and to the extent provided by such charter, and consistent with the Constitution of this State; provided, that said bonds shall have first been authorized by a majority vote by the duly qualified property tax- paying voters voting at an election held for that purpose.” V.T.C.S. art. 1175. Therefore, if the proposed bond issuance is in accordance with the ‘home-rule mmdcipality’s charter, and if a majority of the duly qualhied property tar-paying voters voting at an election held to consider the bond issue have approved the issuance, the municipality may issue bonds to fund an economic development program established under section 380.001. But see supm note 3.

Finally, you ask whether any constitutional or statutory prohibitions or preemptions would preclude inclusion of any particular incentive in a program for economic development that a municipality establishes pursuant to section 380.001 of the Local Government Code. ‘Ihe legislature intended article III, section 52-a of the Texas Constitution and section 380.001 of the Local Government Code to authoriae municipalities to implement a range of programs designed to promote economic development. Again, it is outside the scope of the opinion process to determine whether any set of incentives, offered singularly or in combination, can constitute an economic development program under section 380.001. However, we are unaware ot and you have not specifically mentioned, any provisions that would forbid a municipality from establishing a program to promote state or local economic development and to stimulate business and commercial activity in the municipality.

SUMMARY Section 380.001 of the Local Government Code, which the legislature enacted pursuant to article III, section 52-a of the Texas Constitution, is constitutional. The legislature intended section 380.001 to authorize municipalities to offer a range of incentives desigued to promote state or local economic development. It is outside the scope of the opinion process to determine, however, whether a particular incentive or combination of incentives constitutes a “program.. . to promote *7 (1x-185) state or local economic development” for purposes of section 380.001 of the Local Government Code.

A home-rule municipaLity may issue bonds to fund an economic development program that the municipality has established in accordance witb section 380.001, but only if two conditions are met. First, the bonds the munici@lity desires to issue must be in an amount and to the extent provided by the municipality’s charter. Second, a majority of the duly qualified property tax-paying voters voting at an election held to consider the bond issue must have approved the issuance.

DAN MORALES Attorney General of Texas WILL PRYOR

First Assistant Attorney General

MARYKELLER

Deputy Assistant Attorney General

RENEAHxcKs

Special Assistant Attorney General

MADELEINE B. JOHNSON

Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge

Assistant Attorney General