Can a county employee use a county vehicle to drive a spouse or other non-employee around?

TX AG Opinion GA-0751: Is it legal for a county employee to drive a non-employee in a county vehicle?

Plain-English summary

The Delta County Attorney (and his predecessor before him) asked the Attorney General about a county road commissioner who used a county vehicle to transport his spouse to places inside and outside the county, including a beauty salon, a restaurant, and a discount store. The question was whether that use is legal and whether it is a local decision for the Commissioners Court.

The Attorney General did not give a yes-or-no answer. The opinion explained that the legality of a county employee's use of county property depends on the facts surrounding the use, and the AG's office does not resolve questions of fact in the opinion process. The request did not spell out the commissioner's duties, the terms of the vehicle assignment, or which specific statute or constitutional provision was supposedly violated, so the opinion declined to rule.

Instead of deciding, the opinion pointed the county to authorities that may help its own analysis. Those include the Texas Constitution's prohibition on a county lending its credit or granting public money or a thing of value (article III, section 52(a)), the public-purpose test courts apply under that provision, the principle that a grant serving a legitimate public purpose is not unconstitutional just because it incidentally benefits a private interest, and the rule that whether a use comports with section 52 is for the governing body to decide in the first instance. The opinion also cited the Penal Code provisions that prohibit a public servant from using government property contrary to an agreement, employment contract, law, or limitation. Whether this particular use was lawful was left to the local officials to evaluate on the facts.

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.

The constitutional, Transportation Code, and Penal Code provisions referenced here may have been amended since 2009. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

Commissioners courts and county officials: The opinion described that whether a particular use of a county vehicle is lawful is a fact-bound question for the governing body to assess in the first instance, guided by article III, section 52(a) and the Penal Code.

County employees assigned vehicles: The opinion did not clear or condemn any specific personal use; it described the relevant legal framework and left the lawfulness of a given use to the facts.

County attorneys analyzing a complaint: The opinion pointed to the public-purpose test, the incidental-private-benefit principle, and the misuse-of-government-property statutes as the authorities to apply.

Common questions

Did the AG say it is illegal for a road commissioner to drive his spouse in a county truck?
No. The opinion declined to decide, explaining that legality depends on the facts and the AG's office does not resolve fact questions in opinions.

Why wouldn't the Attorney General just answer the question?
Because, as the opinion explained, the request did not specify the commissioner's duties, the assignment terms, or the particular law at issue, and whether a use is lawful is a fact-bound determination outside the opinion process.

What law governs whether county property can benefit a private person?
The opinion pointed to article III, section 52(a) of the Texas Constitution (no grant of public money or thing of value without a public purpose) and its public-purpose test, plus Penal Code sections 39.01 and 39.02 on misuse of government property.

Who decides whether a specific use is allowed?
The opinion said that whether a political subdivision's grant of a thing of value comports with article III, section 52 is for the governing body of the subdivision to decide in the first instance.

Background and statutory framework

The request concerned a county employee's use of a county vehicle to transport a non-employee passenger. The opinion treated the legality as fact-dependent and outside the opinion process (Tex. Att'y Gen. Op. No. JM-310 (1985) at 5). It referred the county to article III, section 52(a) of the Texas Constitution, which bars a county from lending its credit or granting public money or a thing of value without a public purpose (Tex. Const. art. III, § 52(a)), and to the public-purpose test and related principles that an incidental private benefit does not by itself defeat a legitimate public purpose (Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383-84 (Tex. 2002); Godley v. Duval County, 361 S.W.2d 629, 630 (Tex. Civ. App.-San Antonio 1962, no writ); Walker v. City of Georgetown, 86 S.W.3d 249, 260 (Tex. App.-Austin 2002, pet. denied)), and that whether a grant comports with section 52 is for the governing body to decide first (Tex. Att'y Gen. Op. No. GA-0721 (2009) at 3).

The opinion also cited the Penal Code provisions prohibiting a public servant's use of government property contrary to an agreement, employment contract, law, or limitation (Tex. Penal Code Ann. §§ 39.01, 39.02 (Vernon 2003); State ex rel. Hightower v. Smith, 671 S.W.2d 32, 35 & n.1 (Tex. 1984)), and prior opinions noting that such questions depend on the particular facts and the predominant purpose of the use (Tex. Att'y Gen. Op. Nos. GA-0480 (2006) at 3; H-1089 (1977) at 4-5). It noted that the request did not specify which county road administration system applied (Tex. Transp. Code Ann. §§ 252.101-.313 (Vernon 1999 & Supp. 2009)).

Citations

Statutes:

• Tex. Const. art. III, § 52(a)
• Tex. Transp. Code Ann. §§ 252.101-.313 (Vernon 1999 & Supp. 2009)
• Tex. Penal Code Ann. §§ 39.01, 39.02 (Vernon 2003)

Cases:

• Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002)
• Godley v. Duval County, 361 S.W.2d 629 (Tex. Civ. App.-San Antonio 1962, no writ)
• Walker v. City of Georgetown, 86 S.W.3d 249 (Tex. App.-Austin 2002, pet. denied)
• State ex rel. Hightower v. Smith, 671 S.W.2d 32 (Tex. 1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0751
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0751.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 18, 2009

The Honorable Edgar J. Garrett, Jr.
Delta County Attorney
Post Office Box 462
Cooper, Texas 75432

Opinion No. GA-0751

Re: Whether a county employee may legally use a county vehicle to transport a passenger who is not a county officer or employee (RQ-0807-GA)

Dear Mr. Garrett:

Your predecessor asked about a county employee's use of a county vehicle to transport a passenger who is not a county officer or employee.[1] The request letter states that a county road commissioner has used a county vehicle to transport his spouse to places within and outside the county, including a beauty salon, restaurant, and discount store. Request Letter at 1. The request letter suggests that the road commissioner is a county employee who was assigned a county vehicle, but the letter does not elaborate about the commissioner's duties or the terms and circumstances of the assignment.[2] Your predecessor's request letter asks about the "legality" of the use and whether it is "a local decision to be made by the Commissioners Court," but does not identify any particular statute, constitutional provision, or other law that is the subject of the questions. Id.

The legality of the county employee's use of county property will depend upon the facts associated with the use. This office does not resolve questions of fact in the opinion process. See Tex. Att'y Gen. Op. No. JM-310 (1985) at 5 (noting that "[m]isconduct ... is a question of fact, which this office cannot address"). Without some specificity regarding the facts, circumstances, and law at issue, we are limited to generally referring you to authorities that may be instructive in your analysis. See TEX. CONST. art. III, § 52(a) (providing that a county may not "lend its credit or ... grant public money or thing of value"); Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383-84 (Tex. 2002) (setting forth public purpose test under article III, section 52(a)); Godley v. Duval County, 361 S.W.2d 629, 630 (Tex. Civ. App.-San Antonio 1962, no writ) (stating that, under article III, section 52(a) of the Texas Constitution, a commissioners court is "not authorized to permit the use of county labor, materials or equipment for other than public use."); Walker v. City of Georgetown, 86 S.W.3d 249, 260 (Tex. App.-Austin 2002, pet. denied) (observing that a grant of a thing of value to accomplish a legitimate public purpose is not rendered unconstitutional merely because it incidentally benefits a private interest); Tex. Att'y Gen. Op. No. GA-0721 (2009) at 3 (stating that "[w]hether a political subdivision's [grant of money or thing of value] comports with the requirements of article III, section 52 of the Texas Constitution is for the governing body of the political subdivision to decide in the first instance"). See also TEX. PENAL CODE ANN. §§ 39.01, .02 (Vernon 2003) (prohibiting use of government property by a public servant contrary to agreement, contract of employment, a law, or limitation); State ex rel. Hightower v. Smith, 671 S.W.2d 32, 35 & n.1 (Tex. 1984) (stating that a charge of official misconduct was sustainable on evidence that private gain was earned through the use of official vehicles); Tex. Att'y Gen. Op. Nos. GA-0480 (2006) at 3 (determining that use of county vehicle by off-duty deputy could be authorized if the predominant purpose is to conserve the peace), H-1089 (1977) at 4-5 (stating that whether public officials may legally allow their spouses or others to travel on state aircraft would depend in part on the particular facts).

SUMMARY

The legality of a county employee's use of county property will depend upon the facts associated with the use. This office does not resolve questions of fact in the opinion process.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: The request letter does not specify what road law system is applicable to Delta County. See generally TEX. TRANSP. CODE ANN. §§ 252.101-.313 (Vernon 1999 & Supp. 2009) (Chapter 252, Systems of County Road Administration).]