Can a Texas county commissioner use county equipment to dig graves in a private cemetery?

Plain-English summary

A Hale County commissioner had, for more than fifty years, used a county worker and the county backhoe to open and close graves in a private cemetery within his precinct at no charge to the families. The whole job took about an hour, the county got no compensation, and the commissioners court had never authorized the practice. The county attorney had told the commissioner to stop and asked the Attorney General whether the practice was lawful.

The opinion agreed it was not. Public labor and equipment may be used only for a public purpose. Article III, section 52(a) of the Texas Constitution bars granting county money or a thing of value to a private individual, association, or corporation, and a public purpose is one that benefits the local population generally, not a select group. There is a narrow statute, section 713.028 of the Health and Safety Code, that lets a commissioners court use public funds and equipment to "maintain" an old cemetery (one with a grave marker more than fifty years old), but the opinion held that digging new graves is the service of burying people, not "maintenance," so that statute did not apply. And even if it had, the commissioners court had not authorized the work or found that it served a public purpose.

The opinion also addressed who could act. A county acts only through its commissioners court. An individual commissioner has only the powers expressly given by the Constitution or statutes, or necessarily implied. A commissioner may serve as ex officio road commissioner for his precinct, but those powers are limited to laying out and building roads and bridges and have nothing to do with digging graves. So the commissioner, acting on his own, could not use county labor and equipment for this purpose.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

County commissioners (what the opinion held for them): The opinion held that an individual commissioner, acting apart from the commissioners court, had no authority to use county labor or equipment for a private purpose such as opening and closing graves in a private cemetery, and that a commissioner's ex officio road-commissioner powers did not reach this activity.

Commissioners courts (what the opinion held for them): The opinion held that only the commissioners court, as a body, may authorize the use of county resources, and only for a public purpose that benefits the local population rather than a select group.

Hale County and the county attorney (what the opinion held for them): The opinion agreed with the county attorney's advice that the commissioner should stop, since neither the public-purpose requirement nor the cemetery-maintenance statute (section 713.028) supported the long-standing grave-digging practice.

Common questions

Can a county commissioner have county workers dig a grave in a private cemetery for free?
No. The opinion held that public labor and equipment may be used only for a public purpose, and grave digging for a private cemetery is a private benefit.

Doesn't the statute about maintaining old cemeteries cover this?
No. The opinion read section 713.028 to cover "maintenance," meaning keeping a cemetery in working condition, not the service of burying people by opening and closing graves.

Could the commissioners court authorize it?
The court may authorize the use of county resources only for a genuine public purpose, and here it had neither authorized the work nor found that it served one.

Can one commissioner make this decision alone?
No. The opinion held that a county acts only through its commissioners court, and an individual commissioner cannot bind the county on his own.

Background and statutory framework

The public-purpose limitation rests on article III, section 52(a) of the Texas Constitution, which forbids granting public money or a thing of value to a private individual, association, or corporation, and on cases like Ex parte Conger, 357 S.W.2d 740 (Tex. 1962), which barred a commissioner from using county equipment to clear a private lot. The commissioners court has jurisdiction over county business under article V, section 18, and a county acts only through that court; an individual commissioner has only expressly conferred or necessarily implied powers. Section 713.028 of the Health and Safety Code permits a commissioners court, for historical preservation or public health, safety, or welfare, to use public funds, employees, and equipment to maintain a cemetery with a grave marker more than fifty years old, but excludes perpetual-care cemeteries and those kept by religious or fraternal organizations. A commissioner's powers as ex officio road commissioner under sections 252.003 and 252.006 of the Transportation Code pertain only to roads and bridges.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 52(a); art. V, § 18
• Tex. Health & Safety Code Ann. § 713.028(a), (b) (Vernon 1992)
• Tex. Transp. Code Ann. §§ 252.003, 252.006(a), (b) (Vernon 1999)

Cases:

• Ex parte Conger, 357 S.W.2d 740 (Tex. 1962)
• Guynes v. Galveston County, 861 S.W.2d 861 (Tex. 1993)

Prior Attorney General opinions discussed: Tex. Att'y Gen. LO-89-005; Op. Nos. JC-0080 (1999); JM-1155 (1990); JC-0131 (1999).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0329
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0329.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

January 12, 2001

The Honorable Chris D. Prentice
Hale County Attorney
Hale County Attorney's Office
500 Broadway, Suite 80
Plainview, Texas 79072

Opinion No. JC-0329

Re: Whether a county commissioner may use county property to open and close graves in a private cemetery (RQ-0275-JC)

Dear Mr. Prentice:

You ask this office whether a county commissioner may use county property to open and close graves in a private cemetery within his precinct at no charge.[1] We conclude that he may not.

As you explain the matter, for more than fifty years a county commissioner in Hale County has used county labor and equipment to open and close graves in a private cemetery. See Request Letter, note 1, at 1. The grave digging process takes a total of one hour to open and close a grave using a county worker and the county backhoe. See id. at 3. You inform us that the county receives no compensation for this service. See id. According to your knowledge, the county commissioners court has not authorized the use of county labor and equipment for this purpose. See id. You have advised the county commissioner to cease grave digging. See id. at 1. We agree with your conclusion because a county commissioner is without authority to use public labor or equipment for a private purpose.

In essence, your question raises two issues. The first issue is whether a commissioners court may use public funds or public equipment for a private purpose. The second issue raised by your question is whether a county commissioner, acting apart from the commissioners court, may bind a county.

It is well established that public labor and materials may only be used for a public purpose. See TEX. CONST. art. III, § 52(a); Ex parte Conger, 357 S.W.2d 740, 742 (Tex. 1962) (prohibiting county commissioners from using county equipment to clear brush from a private lot, benefitting the landowner); Tex. Att'y Gen. LO-89-005, at 1 (stating that "[c]ounty funds may only be spent for public purposes"). The Texas Constitution restricts a county's use of public funds, stating that:

(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county . . . to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever . . .

TEX. CONST. art. III, § 52(a); see Tex. Att'y Gen. Op. No. JC-0080 (1999) at 1 (stating that article III, section 52(a) "restricts the use of public money to the accomplishment of public purposes"). Generally, a public purpose benefits the local population, not merely a select group of persons. See 35 DAVID B. BROOKS, TEXAS PRACTICE: COUNTY AND SPECIAL DISTRICT LAW § 12.7 (1989). A commissioners court, as a body, must determine whether a particular use of county resources serves a public purpose. See TEX. CONST. art. V, § 18.

However, a county may use county resources for a private cemetery in limited circumstances. Section 713.028 of the Texas Health and Safety Code provides:

(a) For purposes of historical preservation or public health, safety, or welfare, a commissioners court may use public funds, county employees, and county equipment to maintain a cemetery that has a grave marker more than 50 years old.

(b) This section does not apply to a perpetual care cemetery or a cemetery maintained by a religious or fraternal organization.

TEX. HEALTH & SAFETY CODE ANN. § 713.028(a), (b) (Vernon 1992). Section 713.028 of the Health and Safety Code is inapplicable here. Section 713.028 of the Health and Safety Code specifically addresses the "maintenance" of a cemetery, not the service of burying persons. See id. § 713.028(a). You inform us that the county commissioner uses county resources to open and close graves and does not provide any other maintenance or upkeep to the private cemetery. See Request Letter, supra note 1, at 1. We believe that the opening and closing of new graves does not, by itself, constitute the "maintenance" of a cemetery. See IX OXFORD ENGLISH DICTIONARY 225 (2d ed. 1989) (defining maintenance as "[t]he action of keeping in effective condition, in working order, in repair . . . ; the keeping up of"). Even assuming the statute were applicable, based on the information provided, the commissioners court has not authorized the use of county resources under this statute. Nor has it made a finding that the opening and closing of graves in a private cemetery constitutes a public purpose.

In addressing the second issue raised by your question, we note that apart from the commissioners court, an individual commissioner has no authority to bind a county. See Tex. Att'y Gen. Op. No. JM-1155 (1990) at 1. Article V, section 18 of the Texas Constitution provides the commissioners court with jurisdiction over all "county business as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." A county may only act through its commissioners court. See TEX. CONST. art. V, § 18 (granting the commissioners court jurisdiction over county business); see also Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993) (noting the authority of the commissioners court). An individual county commissioner, like other county officers, has only the powers expressly conferred by the Texas Constitution or statutes or necessarily implied therefrom. See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 2. An individual commissioner may have certain powers as an ex officio road commissioner for his or her precinct. See TEX. TRANSP. CODE ANN. § 252.003 (Vernon 1999). "Under the direction of the commissioners court, an ex officio road commissioner is responsible for the vehicles, tools, and machinery belonging to the county and placed in the commissioner's control by the court." Id. § 252.006(a). However, the powers granted to a commissioner as an ex officio road commissioner pertain solely to laying out, construction, and building of roads and bridges. See id. § 252.006(b). These powers have no relationship to, and do not include the authority to use public equipment to dig or fill graves in a private cemetery. See id.

In sum, a commissioners court, as a body, may authorize the use of county labor and equipment solely for a public purpose. An individual commissioner, acting apart from the commissioners court, may not use county labor and equipment to open and close graves in a private cemetery.

[1] See Letter from Honorable Chris D. Prentice, Hale County Attorney, to Chair, Opinion Committee, Office of the Attorney General at 1 (Aug. 24, 2000) (on file with Opinion Committee) [hereinafter Request Letter].

SUMMARY

An individual county commissioner may not use county labor and equipment to open and close graves in a private cemetery. A commissioners court, acting on behalf of the county, may use county labor and equipment solely for a public purpose.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Polly McCann Pruneda
Assistant Attorney General - Opinion Committee