Did former Texas law requiring counties to support paupers give an indigent resident a property right protected by federal due process?

TX AG Opinion JM-815: Did county pauper support create a due-process entitlement?

Plain-English summary

The Crosby County Attorney asked whether former article 2351(11), which directed commissioners courts to provide for the support of paupers, created a property right protected by the Fourteenth Amendment's Due Process Clause.

The Attorney General concluded that the statute imposed a mandatory duty to make some provision for indigent residents but did not itself guarantee a particular benefit, level of support, eligibility rule, or method of delivery. Because federal property rights depend on a secure entitlement rather than a general need or expectation, article 2351(11) alone did not create a constitutionally protected property interest.

The answer could differ when a county adopted eligibility guidelines, promised defined benefits, or established a settled practice on which residents relied. Johnston v. Shaw had found a protected interest from article 2351(11) together with Lubbock County's guidelines. Whether Crosby County's prior support practices created comparable expectations was a factual question the opinion process could not decide.

The opinion also distinguished a county's state-law duty from federal due process. Even if a county violated article 2351(11) by doing nothing, that failure did not automatically create a federal property interest. JM-815 expressly declined to decide whether state law supplied a cause of action for a county's complete failure to provide support.

Indigent health care was treated separately. The 1985 Indigent Health Care and Treatment Act supplied eligibility and service standards that article 2351(11) had lacked. For other welfare services, the Legislature had continued to leave the nature and extent of county support to local discretion.

Finally, article III, section 52 did not prohibit county support for paupers. The opinion treated that support as a public purpose even though private individuals received the benefit.

Currency note

This opinion was issued in 1987. 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.

What the opinion said for affected groups in 1987

County commissioners and public-assistance administrators

Article 2351(11) required counties to take some action for indigent residents but left general welfare standards and benefit levels to county discretion, apart from the separate health-care statute.

Indigent residents seeking county assistance

The statute alone did not promise a specific benefit protected by federal due process. A county's written standards or longstanding practice could create a more definite expectation.

County and civil-rights attorneys

The existence of a protected property interest depended on the benefit rules and practices actually established by the county. The opinion did not resolve Crosby County's facts or decide a state-law claim based on total nonperformance.

Indigent health-care administrators

The Indigent Health Care and Treatment Act, not article 2351(11) by itself, governed county eligibility and required health-care services after the 1985 legislation.

Common questions

Did article 2351(11) guarantee a specific county welfare payment or service?
No. It required counties to provide support but did not define an eligible class, benefit amount, service level, or delivery method.

Could county rules create a protected property interest?
Yes. The opinion explained that guidelines or settled practices could create legitimate expectations of defined benefits, as Johnston v. Shaw found with Lubbock County's eligibility standards.

Did JM-815 decide whether Crosby County had created such an entitlement?
No. That depended on facts about the county's prior support and practices, which the Attorney General said could not be resolved in the opinion process.

Could a county's failure to act violate state law without violating federal due process?
Yes. Relying on Scoggins, the opinion distinguished a state-law requirement to establish standards from a concrete entitlement protected by federal due process.

Did the opinion decide whether residents could sue a county that provided no support at all?
No. It expressly left that possible cause of action unresolved.

Did the Texas Constitution's ban on donations prohibit county aid to indigent residents?
No. The opinion concluded that supporting paupers served a public purpose and did not become unconstitutional merely because individuals benefited.

Was indigent health care governed by the same open-ended rule?
Not after the 1985 legislation discussed in the opinion. The Indigent Health Care and Treatment Act supplied specific eligibility and service standards.

Background and legal framework

Board of Regents v. Roth required a claimant to show more than need or a unilateral expectation. A protected property interest had to arise from state law, an ordinance, a rule, or another source that securely defined the benefit.

Mireles v. Crosby County and Stephens v. Bowie County had used Pullman abstention because Texas law had not settled whether article 2351(11) alone created an entitlement. JM-815 answered that state-law question by reviewing the statute's history, Texas cases, and Attorney General opinions.

The statute's mandatory wording required counties to support paupers, but Texas authorities had left the means to each county. Monghon and Sisson recognized care during sickness, while Willacy County showed that the statutory category was not automatically established whenever an indigent person incurred medical expenses.

Scoggins v. Moore supplied the closest analogy. A state law requiring local licensing standards did not itself create a property right because it did not state the standards that would produce a license. Defined local rules could create the entitlement that the general state command did not.

Article III, section 52 barred donations of public funds, but Barrington v. Cokinos explained that a direct public-purpose expenditure was not unlawful merely because a private business benefited. The opinion found indigent support to be a public purpose identified in the Texas Constitution itself.

Citations and references

Principal provisions:

• Former article 2351(11), V.T.C.S.
• Fourteenth Amendment Due Process Clause
• Texas Constitution article XVI, section 8
• Indigent Health Care and Treatment Act, former article 4438f
• Texas Constitution article III, section 52

Principal cases:

• Board of Regents v. Roth, 408 U.S. 564 (1972), defined property interests
• Johnston v. Shaw, 556 F. Supp. 406 (N.D. Tex. 1982), county eligibility guidelines
• Mireles v. Crosby County, 724 F.2d 431 (5th Cir. 1984), abstention on unsettled Texas law
• Scoggins v. Moore, 579 F. Supp. 1320 (N.D. Ga.), aff'd 747 F.2d 1466 (11th Cir. 1984), required standards versus a concrete entitlement
• Quinn v. Syracuse Model Neighborhood Corporation, 613 F.2d 438, 448 (2d Cir. 1980), entitlement from settled practice
• Barrington v. Cokinos, 338 S.W.2d 133 (Tex. 1960), public-purpose expenditures

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0815
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0815.pdf

Original opinion text

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

THE ATTORNEY GENERAL OF TEXAS

October 26, 1987

JIM MATTOX ATTORNEY GENERAL

Honorable John L. Barnhill Opinion No. JM-815

Crosby County Attorney

County Courthouse Re: Obligation of a county Crosbyton, Texas 79332 under article 2351(11),

V.T.C.S., to provide for the relief of paupers

Dear Mr. Barnhill:

You ask several questions about the obligation of a county under article 2351(11), V.T.C.S., to provide support for paupers. Your first question is whether article 2351(11) creates a property right cognizable under the due process clause of the 14th Amendment to the United States Constitution.

The due process clause restrains the government from depriving a person of a liberty or property interest without adequate procedural safeguards. See Board of Regents v. Roth, 408 U.S. 564 (1972). Property interests are not created by the constitution; rather they stem from an independent source such as state law or local ordinances. Id. at 577; see Johnston v. Shaw, 556 F. Supp. 406 (N.D. Tex. 1982). You ask whether article 2351(11) creates property rights.

Article 2351(11) provides that each commissioners court shall:

Provide for the support of paupers and such idiots and lunatics as _ cannot be admitted into the lunatic asylum, residents of their county, who are unable to support themselves. A county is obligated to provide health care assistance to eligible residents only to the extent prescribed by the Indigent Health Care and Treatment Act.

See also Tex. Const. art. XVI, §8 (county may provide for care of indigent inhabitants). In order to show that article 2351(11) created a property interest protected by the 14th Amendment, a plaintiff would have to show that he is entitled to some specific benefit under state law:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. .. . It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. .

Board of Regents v. Roth, 408 U.S. at 577 (1972). A key to the determination of whether state law creates a property right is whether state law guarantees specific benefits. One court phrased the issue as whether a state statutory scheme substantially limits the state’s discretion or permits it to act “at will." Punikaia v. Clark, 720 F.2d 564, 566 (9th Cir. 1983), cert. denied 469 U.S. 816 (1984). Another court stated:

[V]iewed functionally, ‘property’ is what is securely and durably yours under state (or as Goldberg federal) law, as distinct from what you hold subject to so many conditions as to make your interest meager, transitory, or uncertain.

Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir. 1983). Another key to the determination of whether a property right exists is whether people have relied on the provision of certain benefits. Board of Regents v. Roth, 408 U.S. at 577.

Article 2351(11) has given rise to several lawsuits in federal district courts in which plaintiffs have sued a Texas county claiming that article 2351(11) creates an entitlement to financial assistance from the county and that the county may not deprive persons of that entitlement without procedural due process. In Johnston v. Shaw, 556 F. Supp. 406 (N.D. Tex. 1982), the court considered whether article 2351(11), together with eligibility standards established by Lubbock County, created an entitlement. The court determined that article 2351(11) in conjunction with the Lubbock County guidelines

created a constitutionally protected property interest. Id. at 412. The court expressed doubt, however, as to whether article 2351(11) alone created an entitlement. id.

In 1984 the Fifth Circuit issued two opinions in cases in which plaintiffs had sought a determination that article 2351(11) itself created an entitlement. Mireles v. Crosby County, 724 F.2d 431 (5th Cir. 1984); Stephens v. Bowie County, 724 F.2d 434 (5th Cir. 1984). In both cases the Fifth Circuit held that the district court had properly invoked the doctrine of abstention. See generally Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941). The court in Mireles, using language virtually identical to that in Stephens, wrote:

The district court properly invoked the abstention doctrine because it is unclear whether article 2351, §11, alone, can be the basis for a.finding of a constitutionally cognizable property interest. The language of the statute is broad and has been construed only twice by the Texas courts, once holding that the support obligation includes ‘proper care, attention, and treatment during sickness,’ Monghon and Sisson v. Van Zandt County, 3 Tex.Civ.Cas. 240 (Ct. App. 1886), and later stating that one who dies without estate sufficient to defray the cost of medical services rendered is not per se a pauper within the statute. Willacy County v. Valley Baptist Hospital, 29 S.W.2d 456, 457 (Tex. Civ. App. 1930). What services a county is to provide and whether it must provide them at no cost or at a reduced rate remains unsettled. Moreover, there is no authoritative statement from the state courts or legislature defining who may qualify as a pauper. Thus, the second Pullman factor is present: the scope and extent of the entitlement of resident indigents to support remains uncertain.

Mireles at 433. You are asking us to resolve the state law issue raised in Mireles and Stephens, that is, whether article 2351(11) itself creates a property right, and, if so, the nature of that right.

p-. 3859

A version of what is now article 2351(11) was adopted by the Texas legislature in 1876, 8 Tex. Gen. Laws at 887 (1876). See also 1 Tex. Gen. Laws at 1201 (1836) (similar statute adopted by congress of Republic of Texas). The various versions of the statute have been worded in a way that indicates that counties are required, not merely authorized, to support paupers. Cf. Tex. Const. art. XVI, §8 (counties may provide for care for its indigent inhabitants). Also, several cases have stated that article 2351(11) requires counties to provide support for paupers. See Monghon and Sisson v. Van Zandt County, 3 Tex. Civ. Cas. 240, 241-42 (Ct. App. 1886); City of Wichita Falls v. Travelers Insurance Co., 137 S.W.2d 170, 174 (Tex. Civ. App. - Fort Worth 1940). Most attorney general opinions that have discussed article 2351(11) have considered whether it authorizes certain expenditures rather than whether it requires certain expenditures, but a number of those opinions have stated that article 2351(11) places a mandatory duty on counties. Attorney General Opinions O-2217 .(1940); O-2474 (1940); S-126 (1954); C-246 (1964); C-293 (1964); M-605 (1970); M-680 (1970); MW-33 (1979); MW-533 (1982) JM-65 (1983). A number of those opinions make clear, however, that it is left to the discretion of each county to determine how to meet its obligation to the poor. See Attorney General Opinions O-2217 (1940); C-246 (1964); MW-533 (1982); see also Attorney General Opinions WW-683 (1959); H-892 (1976). But see Attorney General Opinion MW-33 (1979) (county liable for treatment of indigent at joint city-county hospital). In other words, section 2351(11) has been interpreted by this office as a directive to counties to take some action to provide for indigents, but it has never been interpreted as itself requiring a particular level of care for a defined group of persons.

The conclusion that article 2351(11) itself requires no particular level of welfare services is supported by the action of the 69th Legislature in regard to indigent health care. For many years article 2351(11) was interpreted as requiring counties to provide health care for indigents. See Monghon and Sisson v. Van Zandt County, 3 Tex. Civ. Cas. 240 (Ct. App. 1886). Because of various problems created by the legislature’s past failure to establish specific standards for indigent health care, the 69th Legislature enacted the Indigent Health Care and Treatment Act. Acts 1985, 69th Leg., 1st C.S., ch. 1, §1, at 2, codified as art. 4438f, V.T.C.S. See generally Bill Analysis to S.B. 1, 69th Leg. (1985), on file in Legislative Reference Library. That act established requirements for county provision of indigent health care, and it authorized the Department of Human Services to establish more specific guidelines. Art. 4438f, §2.03 (eligibility provisions); §3.01 (required health care services). The legislature also amended article 2351(11) to clarify that the Indigent Health Care and Treatment Act, rather than article 2351(11), governed county responsibility for indigent health care. Acts 1985, 1st C.S., ch. 1, §4, at 33. The bill analysis to the Indigent Health Care and Treatment Act acknowledges that in the past the law -- that is, article 2351(11) -- did not provide guidelines governing counties’ obligation to provide indigent health care. Before the enactment of the Indigent Health Care Act, the bill analysis states, 40 percent of the poor in Texas lived in counties without any clearly defined responsibilities for indigent health care. The Indigent Health Care and Treatment Act was intended to remedy that situation. Id. The legislature did not, however, enact legislation to provide guidelines governing counties’ obligation to support paupers in areas other than health care. The legislature’s failure to adopt standards governing provision of general welfare services by counties at the time it adopted standards governing provision of health care services is an indication that the legislature was content to allow the counties to continue to exercise their discretion in determining the nature and extent of the welfare services they provide in areas other than health care.

We conclude, therefore, that the legislature did not intend article 2351(11) to require counties to provide any particular level of welfare services. Furthermore, the 100-year-old practice of allowing counties to define the nature and extent of their obligations under article 2351(11) cannot have created legitimate expectations of any particular level of welfare benefits apart from those benefits that counties have chosen to provide. Thus, we do not believe that article 2351(11) itself creates property rights cognizable under the 14th Amendment. It has been suggested, however, that the 14th Amendment may be invoked to require a county to define its obligations under article 2351(11). We do not think that the 14th Amendment is the appropriate remedy for such a problem.

In 1984 a federal district court in Georgia considered a similar issue. Scoggins v. Moore, 579 F. Supp. 1320 (N.D. Ga.), aff'd 747 F.2d 1466 (11th Cir. 1984). The plaintiffs in Scoggins argued that a Georgia law that required counties to set standards governing the issuance of malt-beverage licenses created a property right enforceable under the 14th Amendment. The court rejected that argument, holding that even where state law requires a political subdivision to promulgate standards that themselves might create a property right, the state law alone does not create a property right:

GA. CODE ANN. §5A-502 (Harrison 1981) also does not create a protectible property interest. Section 5A-502 outlines the state-law procedural requirements that govern the decision to grant or deny a malt-beverage license. One such requirement is that the ‘governing authority [of a county] shall set forth ascertainable standards in the local licensing ordinance upon which all decisions pertaining to [malt-beverage] permits or licenses shall be based. . . .' Id. §5A-502(b)(1) (emphasis added). Section 5A-502 does not create a protectible property interest because it merely requires the promulgation of standards for the issuance of a malt-beverage license. It does not itself outline standards which, if met, would lead to the issuance of a malt-beverage license. Thus, Section 5A-502 does not create the concrete expectation necessary for the creation of a constitutionally protectible property interest. See generally Durham, supra, at 1180-81; Shamie v. City of Pontiac, 620 F.2d 118, 120-21 (6th Cir. 1980).

If an ordinance, which outlined standards for the issuance of a malt-beverage license, was promulgated pursuant to section 5A-502, the plaintiffs would probably possess a protectible property interest.

Scoggins v. Moore, 579 F. Supp. at 1325 (N.D. Ga.), aff'd 747 F.2d 1466 (11th Cir. 1984). The Scoggins court pointed out in a footnote that the plaintiffs might have a cause of action in a Georgia court for a violation of section 5A-502 because of the county’s failure to promulgate the required standards but that a violation of section 5A-502 does not necessarily mean that federal due process guarantees have been violated. Id. at 1326 n. 9.

Your question raises a similar issue. Article 2351(11) requires counties to make some provision for paupers. The legislature, however, does not provide guidelines and has left it to the counties to determine the nature and extent of their provision for paupers. As the Scoggins court noted, a county will probably create property interests if it promulgates guidelines or creates expectations by its actions. By doing nothing -- even if it is in violation of state law by doing nothing -- a county creates no expectations and thus no property rights enforceable under the due process clause. See Rotunda, Nowak & Young, Treatise on Constitutional Law: Substance and Procedure §17.5, V.2 (1986) (if a person has no claim of entitlement, there need not be any process at all); see also Weber v. City of Sachse, 591 S.W.2d 563, 568 (Tex. Civ. App. 1979, no writ) (state law requiring county to fund a county police force of not less than six patrolmen did not create entitlement to any specified level of law enforcement protection). We do not address whether a cause of action could be brought against a county for failure to provide in any way at all for the support of paupers.

You submitted with your request a petition presented to Crosby County asking Crosby County to provide support to farm workers. The petition suggests that in the past Crosby County has provided certain types of support to indigents. Whether Crosby County has created property interests by generating legitimate expectations of support is a fact question that we cannot address in the opinion process. See Quinn v. Syracuse Model Neighborhood Corporation, 613 F.2d 438, 448 (2d Cir. 1980) (longstanding pattern of practice can establish an entitlement).

You also ask whether article III, section 52, of the Texas Constitution affects a county’s obligation to provide financial assistance to paupers. Article III, section 52, prohibits the donation of public funds to individuals:

(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or 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 whatsoever ... .

That provision does not mean, however, that a political subdivision may not make any expenditure that benefits a private individual. Attorney General Opinion H-912 (1976). In Barrington v. Cokinos, 338 S.W.2d 133 (Tex. 1960), the court wrote:

[A]n expenditure for the direct accomplishment of a legitimate public .. . purpose is not rendered unlawful by the fact that a privately owned business may be benefited thereby.

Id. at 140. The question, then, is whether support of paupers is a proper public purpose. The Texas Constitution itself makes clear that the support of paupers is a public purpose. See Tex. Const. art. XVI, §8 (allowing counties to provide a poor house and farm). See also Housing Authority of City of Dallas v. Higginbotham, 143 S.W.2d 79, 89 (Tex. 1940) (providing housing for low-income families serves a public purpose). Therefore, expenditure by a county for the support of paupers does not violate article III, section 52, of the Texas Constitution. We do not address the propriety of any particular expenditure for the support of paupers.

SUMMARY

Article 2351(11), which provides that commissioners courts shall provide for the support of paupers, does not by itself create property rights cognizable under the due process clause of the 14th Amendment to the United States Constitution.

Very truly yours

JIM MATTOX

Attorney General of Texas

MARY KELLER Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

Prepared by Sarah Woelk Assistant Attorney General

(JM-815)