Can a Texas county spend its chapter 324 health-services sales tax on mosquito control, animal services, or emergency management?

Plain-English summary

The auditor of Chambers County asked the AG a budgeting question. The county collects a sales and use tax under chapter 324 of the Tax Code, which authorizes certain counties to impose such a tax for health services. The auditor wanted to know whether the commissioners court could use that revenue to fund several county departments: environmental health, emergency management, mosquito control, and animal services.

The AG started with the spending restriction built into the tax. Section 324.081 provides that revenue from a chapter 324 tax "may be used only to provide health services in the county," and it lets the county allocate all or part of the revenue to a county hospital authority or hospital district with the same boundaries as the county, or to a public health district the county participates in. The statute does not define "health services," so an earlier opinion (KP-0162) had read the term by reference to the three named recipients. Because the Legislature singled out those entities as authorized recipients, "health services" relates to the functions they perform: as a class, the treatment and prevention of physical pain and disease to the public. The AG applied the same understanding here, using the ejusdem generis canon that examples illustrating an undefined statutory term limit it to things of the same kind (Cty. of Harris v. Eaton).

The AG then walked through the kinds of work the named entities do, from operating hospitals and caring for the disabled or elderly to the minimum public-health-district services listed in the Health and Safety Code (personal health promotion, infectious disease control, environmental and consumer health programs, public health education, laboratory services, and administrative services). Against that benchmark, the answer for each county department depends on the actual expense. The Legislature treats mosquitoes as spreaders of infectious disease and a public health nuisance, so spending to control mosquitoes in order to prevent infectious disease likely fits within chapter 324. Animal services is mixed: animal control administered to protect human health, like rabies prevention, directly protects the public from disease and likely qualifies, while services aimed at animal welfare do not directly relate to human health and likely do not.

Because the auditor's request gave no detail about what these departments actually do or which specific expenses were at issue, the AG could not draw the line for any particular item. It concluded that whether a given expense qualifies as a chapter 324 health service is a question for the commissioners court to decide in the first instance, subject to judicial review for abuse of discretion.

Currency note

This opinion was issued in 2019. 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 meant for those who asked

County auditors and commissioners courts: The AG concluded that chapter 324 sales-tax revenue may be spent only on health services, meaning services for the treatment and prevention of physical pain and disease to the public. Whether a specific departmental expense qualifies is a factual determination the commissioners court makes first, subject to judicial review.

Counties running mosquito-control and animal-services programs: The opinion explained that mosquito control to prevent infectious disease, and animal control to protect human health such as rabies prevention, likely fall within chapter 324, while animal-welfare work that does not directly relate to human health likely does not.

Common questions

What can a Texas county spend chapter 324 sales-tax money on?
At the time of the opinion, only health services in the county. The AG read that to mean services for the treatment and prevention of physical pain and disease to the public, like those a county hospital authority, hospital district, or public health district provides.

Can the tax pay for mosquito control?
The AG concluded that a county's use of the funds to control mosquitoes for the purpose of preventing infectious disease likely falls within the health services chapter 324 contemplates, because the Legislature treats mosquitoes as spreaders of infectious disease.

Can it pay for animal services?
It depends. The AG explained that animal control administered to protect human health, such as rabies prevention, likely qualifies, while services administered to promote animal welfare do not directly relate to human health.

Who decides whether a particular expense qualifies?
The AG said the commissioners court decides in the first instance whether an expenditure is for an authorized purpose, subject to judicial review for abuse of discretion.

Background and statutory framework

Chapter 324 of the Tax Code authorizes certain counties to impose a sales and use tax for health services (Tex. Tax Code §§ 324.001-.081), and section 324.081 limits the revenue to providing health services in the county, allowing allocation to a county hospital authority or hospital district coterminous with the county or to a public health district (Tex. Tax Code § 324.081). Because the statute does not define "health services," the AG followed Tex. Att'y Gen. Op. No. KP-0162 (2017), which read the term by reference to the named recipients, and applied ejusdem generis (Cty. of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)).

The AG described the functions of those entities under the Health and Safety Code: county hospital authority powers tied to operating a hospital and caring for the disabled or elderly (§§ 264.022, .034); a hospital district's duty to provide adequate hospital services and promote health (§§ 282.049, .050(a); § 281.046); and the minimum public-health-district services (§§ 121.006(d), .043(b)). As a class these provide treatment and prevention of physical pain and disease to the public. The AG then weighed the county departments against that benchmark, noting that the Legislature recognizes mosquitoes as a public health nuisance and disease vector (§§ 341.011(7), .038), that infectious disease prevention is a required public-health-district service (§ 121.006(d)(2)), and that animal-related provisions split between human-health protection and animal cruelty or welfare (§§ 822.001-.004, .041-.047; § 826.017; § 821.022; Ctr. for Food Safety v. Lakey, No. 03-13-00094-CV, 2014 WL 711622, at *3 (Tex. App.-Austin 2014, no pet.) (mem. op.)). Whether a particular expense qualifies is for the commissioners court to decide first, subject to judicial review (Tex. Att'y Gen. Op. No. GA-0340 (2005)).

Citations

Statutory provisions:

• Tex. Tax Code §§ 324.001-.081; § 324.081
• Tex. Health & Safety Code §§ 264.022, .034; §§ 282.049, .050(a); § 281.046; §§ 121.006(d), .043(b); § 121.006(d)(2); §§ 341.011(7), .038; §§ 822.001-.004, .041-.047; § 826.017; § 821.022

Cases and Attorney General opinions:

• Cty. of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)
• Ctr. for Food Safety v. Lakey, No. 03-13-00094-CV, 2014 WL 711622, at *3 (Tex. App.-Austin 2014, no pet.) (mem. op.)
• Tex. Att'y Gen. Op. No. KP-0162 (2017)
• Tex. Att'y Gen. Op. No. GA-0340 (2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0230
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0230.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 7, 2019

Mr. Tony Sims Opinion No. KP-0230
Chambers County Auditor
404 Washington Avenue Re: Whether a commissioners court may fund
Post Office Box 910 certain county departments through revenue
Anahuac, Texas 77514 generated by a sales and use tax imposed
pursuant to chapter 324 of the Tax Code
(RQ-0232-KP)

Dear Mr. Sims:

   You ask whether a commissioners court may use tax revenue generated pursuant to chapter

324 of the Tax Code to fund several county departments, including environmental health,
emergency management, mosquito control, and animal services. [1] Chapter 324 of the Tax Code
authorizes certain counties to impose a sales and use tax for health services. TEX. TAX CODE
§§ 324.001-.081. Section 324.081, however, limits the county's use of the tax revenue:

          "Revenue from the tax imposed under this chapter may be used only
            to provide health services in the county. The county imposing the
            tax may allocate all or part of that revenue to:

             (1)      a county hospital authority or a hospital district having the
                      same boundaries as the county; or

             (2)      a public health district in which the county participates.

Id. § 324.081 (emphasis added).

     Attorney General Opinion KP-0162 addressed the meaning of "health services" for

purposes of section 324.081. Tex. Att'y Gen. Op. No. KP-0162 (2017) at 2. In the absence of a
legislative definition for the term, the opinion noted that section 324.081 identifies a county
hospital authority, a hospital district, and a public health district as three potential recipients for all
or part of the tax revenue generated under chapter 324 and concluded that the Legislature's
specification of these entities as authorized recipients "suggests that it intended 'health services'
to relate to the functions these entities perform." Id; see Cty. of Harris v. Eaton, 573 S.W.2d 177,
179 (Tex. 1978) (concluding that when examples are given to illustrate an undefined term in a
statute, principle of ejusdem generis requires court to construe term to include others "of the same
kind or class as the ones expressly mentioned"). Thus, in determining whether a county may use
tax revenue generated under chapter 324, we look to whether the expense is for the provision of
health services similar in kind or class to the services provided by these entities. See Eaton, 573
S.W.2d at 179; Tex. Att'y Gen. Op. No. KP-0162 (2017) at 2.

     The Legislature vested county hospital authorities with powers generally related to

operating a hospital in the county, as well as providing facilities and services to care for the
disabled or elderly. See TEX. HEALTH & SAFETY CODE §§ 264.022, .034. Similarly, a county
hospital district must "provide adequate hospital services" and may generally "promote health in
the district." Id. §§ 282.049, .050(a); see also id. § 281.046. The Legislature vested public health
districts with a wider range of responsibilities, providing that at a minimum these entities must
provide the following public health services: "(1) personal health promotion and maintenance
services; (2) infectious disease control and prevention services; (3) environmental and consumer
health programs; (4) public health education and information services; (5) laboratory services; and
(6) administrative services." Id. §§ 121.006(d), .043(b). As a class, these entities generally provide
services relating to "the treatment and prevention of physical pain and disease to members of the
public." Tex. Att'y Gen. Op. No. KP-0162 (2017) at 2.

     Turning to your question, your request provides no detail as to the services provided by the

county's environmental health, emergency management, mosquito control, and animal services
departments or the specific expenses you seek to fund with revenue generated under chapter 324.
Request Letter at 1. Whether an expense serves an authorized purpose under chapter 324 will
depend on the specific facts and circumstances concerning the expenditure. For example, the
Legislature recognizes that mosquitoes spread infectious disease and constitute a public health
nuisance. See, e.g., TEX. HEALTH & SAFETY CODE §§ 341.011(7), .038. Thus, a county's use of
funds to control the spread of mosquitoes for the purpose of preventing infectious disease likely
falls within the class of health services contemplated by chapter 324. See id. § 121.006(d)(2)
(providing that public health district must provide infectious disease prevention services). On the
other hand, a county's animal control department may encompass services related to both human
health and animal welfare. Compare id. §§ 822.001-.004, .041-.047 (providing, in part,
procedures for county animal control authority to seize or destroy dangerous dogs), and id.
§ 826.017 (requiring county to designate an officer to act as local rabies control authority), with
id. § 821.022 (providing that officer with responsibility for animal control in county may apply for
warrant to seize cruelly treated animal). Animal control services administered for the purpose of
protecting human health, such as rabies prevention, directly protect the public from disease and
likely fall within the class of health services contemplated by chapter 324. See id. § 121.006(d)(2)
(providing that public health district must provide infectious disease prevention services). While
other services administered for the purpose of promoting animal welfare may contribute to the
overall wellbeing of the community, such services do not directly relate to human health. See Tex.
Att'y Gen. Op. No. KP-0162 (2017) at 3 (concluding that the general statutory scheme of section
324.081 "relates to services for the direct treatment and prevention of physical pain and disease
provided to members of the public"); see also Ctr. for Food Safety v. Lakey, No. 03-13-00094-
CV, 2014 WL 711622, at *3 (Tex. App.-Austin 2014, no pet.) (mem. op.) (distinguishing
between chapters of the Health and Safety Code pertaining to animals that "expressly address the
protection of human health" and those that address animal cruelty). Thus, some of the expenses
for the departments you identify may relate to services provided to the public for the treatment and
prevention of physical pain and disease, while others certainly will not. Whether a particular
expense qualifies as a health service for purposes of chapter 324 is a question for the
commissioners court to determine in the first instance, subject to judicial review. See Tex. Att'y
Gen. Op. No. GA-0340 (2005) at 6 (concluding commissioners court was authorized to make
reasonable decision as to whether a particular expenditure was for an authorized purpose, subject
to judicial review for abuse of discretion).

                                 SUMMARY

                 If a specific expense of a county's environmental health,
          emergency management, mosquito control, or animal services
          departments relates to the treatment and prevention of physical pain
          and disease to the public, the county may use funds generated under
          Tax Code chapter 324 to fund health services provided by the
          relevant departments.

                  Whether a county incurs an expense in the accomplishment
          of a health service under chapter 324 will depend on the specific
          facts and circumstances concerning the expenditure. Such factual
          determinations are questions for the commissioners court to
          determine in the first instance, subject to judicial review.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee

[1] Letter and attachment from Mr. Tony Sims, Chambers Cty. Auditor, to Op. Comm., Office of the Tex. Att'y Gen. at 1 (May 23, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Attachment," respectively) (Attachment on file with the Op. Comm.).