Case Information

*1 The Attorney General of Texas thy 14. 1984 JIM MAlTOX

Attorney General Supreme Court BulldIng Eoaorable William D. Smith Opinion NO-J&158 P. 0. Box 12548 Butchineon County Attorney Austin, TX. 78711.2543 P. 0. Box 985 Be: Support of the Panhandle 51214752501 Borgcr. Texas 79007 Alcoholic Recovery Center by Telsx 910/574-1357 TalecopIer 512l475.0288 counties, and related questions

Eonorable Bill Baumann Potter County Attorney

714 Jackson. Suite 700 303 Courthouse Dallas. TX. 752024505 Amarillo. Texas 2W742-5944 79101 Centlaman:

4824 Alberta Ave.. E+lte 150 El Paso. TX. 79905-2783

This opinion vi11 address your inquiries concerning the 915l53334S4 relationship between certain counties and the Panhandle Alcoholic Recovery Center [hereinafter PARC]. Because they deal with similar 1 Texas. Suite 7W subject mtter, we have consolidated your’questions in this opinion. -,mton, TX. 77’002-3111 Bo:h-;i,, you ask whether the cmissioners court of a county may 713l2235888 fines collected In driving while Intoxicated (DWI) and

public Inebriation cases county-sponsored substance abuse treatmat. Mr. Ba-n asks whether a conrmisaioners court may SOS Broadway. Suite 312’ Lubbock, TX. 79401-3479 authorize county and district court judges to increase by a specific 5w747.5238 amount the fines assessed in their courts for substance-abuse related

offenses and then direct these amounts for the support of the PARC. Hr. Smith asks whether the payment of monies out of public funds by a 4309 N. Tenlh. Suite B McAlten, TX. 75501.1685 canrmissioners court to the PARC violates article III, section 52. of 512lea2.4547 the Texas Constitution. It is vail established that the coanissioners court of a county 200 Main Plaza. suite 400 may exercise only those powers conferred upon that body by the San Antonlo. TX. 752052797 51212254191 constitution and laws of this state. Tex. Const. art. V. #18. The ctissloners court is not empowered to apportion fine revenues prior to their collection. Instead. the county treasurer is vested with the An Equal Opportunltyl duty of disposing of fines collected by a county. Afflrmatlve Actlon Employer

Article 1628. V.T.C.S.. requires all funds received by the county treasurer to be classified in one of three categories, including [a]11 money received under any provisions of the road and bridge law . . . and all fines and forfeitures.

This office has read this provision in the past to require collected by s county to be placed in the road and bridge fund. See - *2 Attorney General Opinions O-5681 (1943) (misdemeanor fines. except those collected under special statutes); O-3092 (1941) (fines in felony convictions). This office has also concluded that fines collected by a county for DWI infractions are to be deposited in the county road and bridge fund. Attorney General Opinion O-4269 (1941).

Commissioners court discretion over the collection and allocation of fine revenues was further curtailed with the enactment of the County Road and Bridge Act, article 6702-l. V.T.C.S. Acts 1983. 68th Leg., ch. 288 at 1431. Section 4.201 of the act requires the following disposition of certain fines:

Fines collected for violations of any highway law that was previously set forth in Chapter 1. Title 13. Vernon's Texas Penal Code, 1925. shall be used by the municipality or the counties in which the fines are assessed and to which the fines are payable in the construction and maintenance of and culverts in the municipality roads, bridges, or county, for the enforcement of the traffic laws regulating the use of the public htghvays by motor vehicles and motorcycles, and to help defray the expense of county traffic officers.

DWI is among those offenses alluded to above. Penal Code art. 802 (1925) (repealed -- nom found in V.T.C.S. art. 67011-l). Furthermore, section 144 of article 6701d. V.T.C.S.. also requires fines collected thereunder be used only "in the construction and maintenance of roads . . . ."

Article 6702-l also restates the authority of the commissioners court to oversee the road and bridge fund:

The commissioners court shall see that the road and bridge fund is judiciously and equitably expended on the roads and bridges of its county.

Sec. 3.101(c). It is clear, then, that rather thandeciding to expand the authority of the cammissioners court over the disposition of DWI and related fines, the legislature has sought to restrict the court. Consequently, any attempt by a commissioners court to earmark fines collected by a county would constitute an impermissible expansion of the powers of the cotissboners court , contrary to both constitutional end statutory msndate. See Tex. Const. art. V, 618; V.T.C.S. art. 6702-l; Canales v:LaughlK214 S.W.2d 451, 453 (Tex. 1948).

This conclusion also addresses Mr. Baumann's inquiry. Mr. Baumann asks whether a cosmissloners court may sanction an increase in fines assessed against substance abusers. The power to prescribe is a matter held generally within the discretion of the legislature end may be overridden only in extraordinary cases.

Pennington v. Singleton. 606 S.W.2d 682, 690 (Tex. 1980). In our oolnion. commissioners court authoriaation of such an increase would disturb-both the!discretlon of the legislature to prescribe fines and the euthority ofi.tha courts to set fines within legislative limits. Accordingly, a commissioners court may not authorize district and to increase fines assessed county court judges in substance abuse canes.

The brief prepared by Mr. Baumann’s office does, however, provide insight into the lawful methods by which a commissioners court may fund the PARC. In the brief, Mr. Baumann discusses the authority of a county to contract with a private entity for the provision of necessary health services under articles 2351 and 4418, V.T.C.S. Mr.

Smith, meanwhile, asks whether articles 4418f (repealed -- now found 4414b. section 1.07) and 4478 permit the commissioners in article court of Eutchlnson County to contract with the PARC even though the center is located in another county.

The authority of a county to enter into contracts was explained in Galveston, 8. ~& S.A. Railway Co. v. Uvalde County, 167 S.W.2d 305, 307 (Tex. Civ. App. - San Antonio 1942. vrit ref’d v.0.m.):

A county may contract only in the manner and for the.purposes provided by statute, and is not bound by a contract beyond the scope of its power6 or foreign to its purposes, or which is outside the authority of the officers making It.

Prior opinions of this office demonstrate that a county may contract vlth private, nonprofit entities and private corporations to perform services the county is Itself authorized to provide.. See Attorney General Opinions JM-103 (1983) (county may contract for operation of senior citizen recreation and health center); JM-65 (1983) (county may contract with privately owned and operated hospital); H-1123 (1978) (county may contract with private hospital for obstetrical care of charity patients). It is equally true, however, that a county may not contribute public funds to such entities. Tex. Const. art. III, 152; art. XI, 13,. See Attorney General Opinions MW-329 (1981) (county may not make contributions to nonprofit corporation training of handicapped persons); H-1189 (1978) (county may not donate funds to private day care center); E-520 (1975) (county may not contribute public funds for construction of privately owned and operated livestock show barn). The payment of public funds to private and/or nonprofit entities is lawful when either the expenditure serves a true public purpose, accompanied by sufficient controls, or the county receives adequate consideration for the expenditure. See Attorney - General Opinions m-103, JM-65 (1983).

Accordingly, we believe any contract authorizing an expenditure to the PARC must be preceded by e specific factual finding by the commissioners court that alcoholism constitutes a public health *4 Ronorable Bill Bauwann I the county and that the PARC provides what way be

problem in reasonably characterieed as haalth services. See generally Attorney General Oplniou JH-5 (1983) (alcoholisw treatment requires more than mere detoxification). Moreover, the contract should clearly state the public purpose to be furthered and should by its terms reserve for the county sufficient control over the performance of the contract to ensure that the public purpose is carried out for the benefit of the county and its residents.

To susmsrire, we eonclude that a county conmissloners court may for the PARC. Siwilarly. we believe sot earmrk DWI and related that the connissioners court way not authorize an incresse In fines assessed against substance offenders. The paywent of county funds to the PARC does not violate article III, section 52, of the Texas Constit"tlon, provided that such peyreats are wade pursuant to a coutract predicated on the factual finding described above. The only rewaining issues to be addressed are whether the agency with which the county contracts must be located within that county and whether such contracts way be paid from DWI and related fine revenues.

Mr. Smith writes that under former article 4418f. it is unclear whether county funds may be spent outside the county. Although the authority of the commissioners court to spend funds for health and sanitation appears in the statute creating the state Department of Health and Board of Health, numerous opinions from this office, previously cited, demonstrate that this power is not limited by the caption to former article 4418f. By the same token, we see no reason to the county In which to limit expenditures for health and sanitation the commissioners court sits, so long as the benefits of such spending inure to the county and Its residents. Accordingly, we believe the cosmissioners court of Rutchinson County is authorized to contract with the PARC, notwithstanding the fact that the PARC Is located in another county.

SUMMARY A commissioners court is not authorized to earmark DWI and related fines, uor to increase fines assessed against substance offenders, the purpose of funding an alcoholic recovery center.

, Vefz#& JIM HATTOX Attorney General of Texas *5 TOM GRRRN

First Assistant Attorney General

DAVID R. RICBARDS

Executive Assistant Attorney General

Prepared by Rick Gilpin

Assistant Attorney General

APPROVED:

OPINION COWITTEE

Rick Gllpin. Chairman

David Brooks

Colin Carl

Susan Garrison

Jim Moellinger

Nancy Sutton