Could a Texas school district use district funds to pay a city red-light-camera civil penalty on a district-owned vehicle?

Texas AG Opinion GA-0747: School District Civil Penalty

Plain-English summary

GA-0747 concluded that a school district's payment of a red-light-camera civil penalty did not violate article III, sections 51 and 52(a) of the Texas Constitution if the district itself was legally liable. Paying a valid obligation was not a gift or grant of public money. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

The result changed if the district established that it was not liable. In that situation, payment could violate the constitutional limits unless it accomplished a legitimate public purpose of the district, returned a clear public benefit, and included adequate controls to protect the public investment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

The opinion did not decide whether the district could require an employee to reimburse it for the penalty. A footnote said the request raised possible legal impediments to such a policy, but the opinion expressly declined to address them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected in 2009

School district boards and finance officers: GA-0747 said district funds could pay a civil penalty that was a valid district obligation. If the district was not liable, the board had to apply the constitutional public-purpose test described in the opinion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Municipalities operating photographic traffic enforcement systems: The opinion treated the vehicle owner as potentially liable under chapter 707 and the local ordinance, even when an employee drove the vehicle. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

District employees: The opinion did not decide whether an employee could be made to reimburse the district for a violation involving a district-owned vehicle. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Common questions

Was paying the penalty an unconstitutional gift to the employee who drove the vehicle?

Not if the district, as the registered owner, was legally liable. GA-0747 reasoned that payment of the district's own obligation did not give the employee an unconstitutional benefit. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

What if the district proved it did not owe the penalty?

Then payment could violate article III, sections 51 and 52(a) unless the district identified a legitimate district public purpose, a clear public benefit in return, and adequate public controls. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Did the AG decide whether the employee had to reimburse the district?

No. The opinion said it did not address employee-reimbursement policies or possible legal impediments to them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Who made the initial public-purpose determination?

GA-0747 said the district had to determine in the first instance whether paying a penalty it did not owe would serve a legitimate public purpose of the district. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Background and statutory framework

The request described a College Station Independent School District employee driving a district-owned vehicle through a red light monitored by the city's photographic enforcement system. The city ordinance imposed a civil penalty on the vehicle owner, and the district questioned whether using district funds to pay would violate the Texas Constitution. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Chapter 707 allowed a local authority to create a photographic traffic signal enforcement system and impose civil liability on the registered owner. The opinion quoted sections 707.002 and 707.013(a) and noted that an owner had an opportunity to contest the penalty in an administrative hearing. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Article III, sections 51 and 52(a) restricted gratuitous grants of public money. GA-0747 drew a line between paying a valid governmental obligation and paying money the district did not owe. Only the second situation required a separate public-purpose justification. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Key source language

GA-0747 stated:

"If the College Station Independent School District is liable for a civil penalty imposed upon it pursuant to chapter 707 of the Texas Transportation Code and the City of College Station's Code of Ordinances, its payment of the penalty would not contravene article III, sections 51 and 52(a) of the Texas Constitution."

"However, if the District is not liable for a civil penalty, payment of that penalty by the District may violate article III, sections 51 and 52(a), unless the payment accomplishes a public purpose of the District, with a clear public benefit received in return, and there are adequate public controls in place to ensure that the public purpose is accomplished."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Citations and references

Constitutional and statutory provisions:

• Tex. Const. article III, sections 51 and 52(a)
• Transportation Code sections 707.001(2), 707.002, 707.009, 707.013(a), and 707.014

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0747
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0747.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

GREG ABBOTT

November 24, 2009

Mr. Robert Scott Opinion No. GA-0747

Commissioner of Education

Texas Education Agency Re: Whether a school district may expend district
1701 North Congress Avenue funds to pay a civil penalty imposed by a
Austin, Texas 78701-1494 municipality (RQ-0710-GA)

Dear Commissioner Scott:

On behalf of the College Station Independent School District (the “District”), you ask our
opinion on “the constitutionality of expending [D]istrict funds to pay a civil fine” that is imposed
upon the District pursuant to chapter 707 of the Texas Transportation Code.' The District contends
that the expenditure of public funds to pay such a penalty would contravene article III, sections 51
and 52(a) of the Texas Constitution.”

Under chapter 707,

[t]he governing body of a local authority by ordinance may
implement a photographic traffic signal enforcement system and
provide that the owner of a motor vehicle is liable to the local
authority for a civil penalty if, while facing only a steady red signal
displayed by an electrically operated traffic-control signal located in
the local authority, the vehicle is operated in violation of the
instructions of that traffic-control signal... .

TEX. TRANSP. CODE ANN. § 707.002 (Vernon Supp. 2009). For purposes of chapter 707, “‘[o]wner
of a motor vehicle’ means the owner of a motor vehicle as shown on the motor vehicle registration
records of the Texas Department of Motor Vehicles or the analogous department or agency of
another state or country.” Jd. § 707.001(2). “It is presumed that the owner of the motor vehicle
committed the violation . . . if the motor vehicle depicted in a photograph or digital image taken by
a photographic traffic signal enforcement system belongs to the owner of the motor vehicle.” Jd.

'Request Letter (available at http://www.texasattorneygeneral.gov).

"Letter from Ms. Chris G. Elizalde, Walsh, Anderson, Brown, Schulze & Aldridge, P.C., on behalf of the
District, to Mr. Robert Scott at 1-2 (Apr. 15, 2008) (attached to Request Letter) [hereinafter District Letter].

Mr. Robert Scott - Page 2 (GA-0747)

§ 707.013(a). Therefore, under chapter 707, the owner of a motor vehicle that was operated in
violation of the instructions of that traffic-control signal may be held liable for that violation even
if the owner was not operating the motor vehicle at the time of the violation. However, a local
ordinance adopted pursuant to chapter 707 must allow a motor vehicle owner the opportunity to
contest the imposition of the civil penalty in an administrative adjudication hearing. See id. §§
707.009, .014.

The District informs us that the City of College Station (the “City”) has implemented a
photographic traffic signal enforcement system, also known as a red light camera system, and
adopted a corresponding enforcement ordinance pursuant to chapter 707. See District Letter at 1;
see also COLLEGE STATION, TEX., CODE OF ORDINANCES ch. 10, § 11 (2007) (‘Automated Traffic
Signal Enforcement”). Specifically, the City’s Code of Ordinances provides that “the owner of a
motor vehicle is liable for a civil penalty of seventy-five dollars ($75.00) if” that “motor vehicle is
operated in violation of the instructions of [a] traffic-control signal.” COLLEGE STATION, TEX.,
CODE OF ORDINANCES ch. 10, § 11(B)(1) (2007).

In the District’s brief, the District presents a scenario in which a District employee, driving
a District-owned vehicle, improperly proceeds through a red light monitored by the City’s red light
camera system.*> The red light camera system captures an image of the vehicle improperly
proceeding through the red light and, pursuant to chapter 707 and its ordinance, the City notifies the
District of the violation and imposes a $75.00 civil penalty upon the District. See District Brief at
4; COLLEGE STATION, TEX., CODE OF ORDINANCES ch. 10, § 11(B)(1) (2007). The District argues
that it may not pay the civil penalty due to the limitations found in article III, sections 51 and 52(a)
of the Texas Constitution.’ See District Brief at 2-4. We address whether, in the scenario above,
those constitutional provisions prohibit the District from paying the civil penalty imposed by the

City.

Article III, section 52(a) of the Texas Constitution 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 individual, association or corporation.” TEX. CONST. art. III, § 52(a). Similarly,
article III, section 51 states that the “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

3Brief from Ms. Chris G. Elizalde at 4 (June 11, 2008) [hereinafter District Brief].

‘The District specifically contends that its payment of the civil penalty to the City would unconstitutionally
benefit the District employee who operated the motor vehicle because the employee was “solely responsible” for the
violation. See District Brief at 2-4. While it is true in the scenario presented above that the District employee operated
the motor vehicle in violation of the instructions of the traffic-control signal, the plain language of chapter 707 of the
Texas Transportation Code and the City’s Code of Ordinances provides that the owner of the motor vehicle is liable for
the civil penalty. See TEX. TRANSP. CODE ANN. §§ 707.002, .013(a) (Vernon Supp. 2009); COLLEGE STATION, TEX.,
CODE OF ORDINANCES ch. 10, § 11(B)(1), (D) (2007). Ifthe District, and not the employee in question, is liable for the
civil penalty, then the District’s payment of the penalty would not constitute a benefit to that employee.

°A school district is a political subdivision of the state. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

• 692, 694 n.3 (Tex. 2003).

Mr. Robert Scott - Page 3 (GA-0747)

or other corporations whatsoever.” Jd. § 51. The purpose of these provisions is to prevent the
gratuitous payment of public funds to any individual, corporation, or purpose whatsoever. See
Edgewood Indep. Sch. Dist. v. Meno, 917 8.W.2d 717, 740 (Tex. 1995). A “corporation” within
these provisions includes a municipal corporation such as the City. See San Antonio Indep. Sch.
Dist. v. Bd. of Trs. of the San Antonio Elec. & Gas Sys., 204 S.W.2d 22, 25 (Tex. Civ. App.—El
Paso 1947, writ ref’d n.r.e.) (deciding that a city could not lend or donate public funds to an
independent school district, which was a separate municipal corporation).

We have found no case law or attorney general opinion specifically addressing the
constitutionality of a governmental entity’s payment of a civil penalty for which the entity is liable.
However, existing cases and attorney general opinions addressing analogous payments by
governmental entities are helpful in addressing that issue. For example, in Harris County vy.
Dowlearn, the court of appeals held that a governmental entity’s payment of a valid claim under the
Texas Tort Claims Act for which the governmental entity was liable would not violate article III,
section 51 or 52. Harris County v. Dowlearn, 489 S.W.2d 140, 144 (Tex. Civ. App.—Houston [14th
Dist.] 1972, writ ref'd n.r.e.); see also Stacy v. Bridge City Indep. Sch. Dist., 357 S.W.2d 618,
618—20 (Tex. Civ. App —Beaumont 1962, no writ) (concluding that a school district’s payment of
full salary to a wrongfully discharged employee does not violate article III, section 51). Similarly,
this office has previously opined that article III, section 51 did not bar a state agency’s payment of
back wages to a person who successfully asserts a valid claim of employment discrimination against
the agency. See Tex. Att’y Gen. Op. No. H-1186 (1978) at 4; see also Tex. Att’y Gen. Op. No.
H-1288 (1978) at 2 (finding that article III, section 52(a) does not bar payment by a county of a valid
contract claim for which the county is liable). These cases and opinions stand for the proposition
that if a governmental entity is liable for an obligation, then the payment of that obligation is not an
unconstitutional gift or grant under article III, sections 51 and 52(a). See Tex. Att’y Gen. Op. No.
H-1186 (1978) at 4 (“Article [III], section 51 is not violated by the payment of a claim for which the
state is liable.”). Accordingly, we believe a court would likely find that a governmental entity’s
payment of a civil penalty for which the entity is liable would not violate article III, sections 51 and
52(a).

The plain language of chapter 707 of the Texas Transportation Code and the City’s Code of
Ordinances provides that the District, as the motor vehicle owner, is liable for the civil penalty
imposed under those provisions. See TEX. TRANSP. CODE ANN. §§ 707.002, .013(a) (Vernon Supp.
2009); COLLEGE STATION, TEX., CODE OF ORDINANCES ch. 10, § 11(B)(1), (D) (2007). We presume
that duly-enacted statutes and city ordinances, such as those at issue here, are constitutional and
valid. See TEX. GOV’T CODE ANN. § 311.021 (Vernon 2005) (“In enacting a statute, it is presumed
that: (1) compliance with the constitutions of this state and the United States is intended; . . .”);
Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.
1996) (presuming constitutionality of statute); City of Brookside Village v. Comeau, 633 S.W.2d
790, 792 (Tex. 1982) (presuming constitutionality of city ordinance). Therefore, unless the District
establishes that it is not liable, its payment of the civil penalty will not contravene article III, sections
51 and 52(a). If the District does establish that it is not liable, however, article III, sections 51 and
52(a) may prohibit it from paying the penalty unless the payment accomplishes an authorized public

Mr. Robert Scott - Page 4 (GA-0747)

purpose of the District.° See Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Comp.
Comm’n, 74 8.W.3d 377, 383-84 (Tex. 2002) (holding that a payment will not violate article III,
section 52 if the use of the public funds accomplishes a public purpose, a clear benefit is received
in return, and adequate public controls are in place to ensure that the public purpose is accomplished
and the public’s investment is protected), Tex. Att’y Gen. Op. No. GA-0076 (2003) at 3; see also
Barrington v. Cokinos, 338 S.W.2d 133, 140 (Tex. 1960) (holding that the constitution does not
invalidate an expenditure which incidentally benefits another party if the expenditure is made for the
direct accomplishment of a legitimate public purpose). It would be for the District to determine in
the first instance whether paying the civil penalty would serve a public purpose of the District. See
Tex. Att’y Gen. Op. No. GA-0078 (2003) at 4 (citing Young v. City of Houston, 756 S.W.2d 813,
814 (Tex. App.—Houston [1st Dist.] 1988, writ denied), City of Coleman v. Rhone, 222 S.W.2d 646,
649 (Tex. Civ. App.—Eastland 1949, writ refd)).”

“In order for a payment to survive scrutiny, the public purpose served must be a legitimate public purpose of
the District rather than the City. See Bexar County Hosp. Dist. v. Crosby, 327 S.W.2d 445, 447-48 (Tex. 1959); State
ex rel. Grimes County Taxpayers Ass nv. Tex. Mun. Power Agency, 565 S.W.2d 258, 265-66 (Tex. Civ. App.—Houston
[1st Dist.] 1978, writ dism’d); Tex. Att’y Gen. Op. Nos. JC-432 (2001) at 2, JM-1255 (1990) at 3.

’The District indicates that other governmental units, including the City, have adopted policies requiring an
employee of the governmental unit to reimburse the amount of a civil penalty imposed on the governmental unit under
chapter 707 for the actions of that employee. See District Brief at 4. However, the District claims that there may be legal
impediments to adopting such a policy. See id. at4-5. We do not address such policies or any potential impediments
to their implementation.

Mr. Robert Scott - Page 5 (GA-0747)

SUMMARY

If the College Station Independent School District is liable for
a civil penalty imposed upon it pursuant to chapter 707 of the Texas
Transportation Code and the City of College Station’s Code of
Ordinances, its payment of the penalty would not contravene article
III, sections 51 and 52(a) of the Texas Constitution. However, if the
District is not liable for a civil penalty, payment of that penalty by the
District may violate article III, sections 51 and 52(a), unless the
payment accomplishes a public purpose of the District, with a clear
public benefit received in return, and there are adequate public
controls in place to ensure that the public purpose is accomplished.

Very truly yours,

Attorney Genéfal of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee