Can a Texas county pay travel, tuition, and dues for a contractor who isn't a county employee?

Plain-English summary

In the aftermath of Hurricane Harvey, grant money channeled through Workforce Solutions made temporary workers available in Southeast Texas, and Newton County contracted to take on some of them. One of those contract workers went to work for the county judge, helping with floodplain issues and handling other secretarial duties. The county did not pay the worker's salary — another entity did — but it did pay for the worker's travel, education expenses, and professional membership fees tied to floodplain work, including a certified-floodplain-manager exam, a course through the Texas Floodplain Management Association, training travel, and membership in that association. The county judge charged these to a county credit card and the county paid the bill. The county's criminal district attorney asked whether the commissioners court actually had authority to pay those expenses for someone who was not a county employee.

The AG started from a basic principle: a commissioners court may exercise only the powers expressly given by the constitution or the Legislature, but where the constitution or Legislature imposes an obligation on the court, the court also has implied authority to do what is necessary to carry out that duty. So the question split into express authority and implied authority.

On express authority, the AG looked at two statutes. Local Government Code section 152.011 lets a commissioners court set travel and other allowances for county officers and employees paid wholly from county funds — but the contract worker was not a county employee and was paid by another entity, so that did not apply. Section 152.901, by contrast, lets a commissioners court authorize reasonable travel expenses for a person who is an agent of the county (and not an officer or employee covered by section 152.011) while performing county business authorized by the court. The statute does not define "agent," and the AG explained that agency generally turns on the principal's right to control the agent's actions. The facts — the county contracted for the worker, assigned the worker to the county judge, and the worker then incurred travel doing assigned duties — suggested the worker might qualify as an agent, but the AG stressed that whether a principal-agent relationship existed, and whether the work was authorized county business, are questions of fact and contract construction for the commissioners court to decide in the first instance, subject to judicial review. And even if section 152.901 applied, it covered only the travel expenses, not the tuition or membership costs.

For those remaining expenses, the AG turned to implied authority. The county had adopted a Flood Damage Prevention Order and the commissioners court was serving as the county's designated floodplain manager. Water Code section 16.315 gives political subdivisions broad authority over flooding, including engaging in floodplain management, and federal regulations require certain counties to implement a floodplain management plan to obtain federal flood insurance. Because the Legislature expressly vested the county with floodplain-management authority, the commissioners court also had implied authority to exercise broad discretion to accomplish that purpose. So depending on whether a particular expenditure was necessary to accomplish the county's express directives, expenses to qualify an individual to assist with floodplain management could fall within the court's implied authority. But the AG attached the constitutional condition: to be valid under article III, section 52(a), the payment must be necessary for the direct accomplishment of a legitimate public purpose, the county must receive adequate consideration, and there must be appropriate controls to ensure the public purpose is carried out. Whether the expenses met those tests was, again, for the commissioners court to determine in the first instance, subject to judicial review.

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

Commissioners courts paying non-employee workers: At the time of the opinion, the AG read Local Government Code section 152.901 to allow payment of reasonable travel expenses for a person acting as the county's agent on authorized county business, while explaining that whether someone is an "agent" and whether the work was authorized are fact and contract questions for the court to resolve first.

Counties handling disaster and floodplain work: The opinion explained that, because the Water Code charges counties with floodplain management, a commissioners court may have implied authority to pay expenses necessary to accomplish that duty — but only consistent with the public-funds limits of article III, section 52(a).

Anyone reviewing a county credit-card expenditure: The AG noted that whether expenses like exam fees, tuition, and dues serve a legitimate public purpose, are supported by adequate consideration, and are subject to appropriate controls is a determination for the commissioners court, subject to judicial review.

Common questions

Can a Texas county pay travel expenses for someone who isn't a county employee?
The AG concluded it can, under Local Government Code section 152.901, if the person is acting as an agent of the county and performing county business authorized by the commissioners court. Whether those conditions are met is a fact question for the court to decide first.

What makes someone an "agent of the county"?
The AG explained that agency is the legal relationship by which one party is authorized to act for another, and a basic test is the principal's right to control the agent's actions. Being a contractor does not by itself preclude agency for a particular transaction.

Can the county pay for the worker's certification exam, course, and dues?
The AG found no statute expressly authorizing those payments for a non-employee. They might fall within the commissioners court's implied authority to carry out its floodplain-management duty, but only if the spending satisfies the constitution's public-funds requirements.

What does article III, section 52(a) require for such payments?
The AG explained the payment must be necessary for the direct accomplishment of a legitimate public purpose, the county must receive adequate consideration, and there must be appropriate controls to ensure the public purpose is carried out.

Did the AG decide whether Newton County's payments were authorized?
No. The AG explained that the agency question, the authorized-business question, and whether the expenses satisfied the constitution are all determinations for the commissioners court in the first instance, subject to judicial review.

Background and statutory framework

The request concerned a contract worker — supplied through a post-Harvey Workforce Solutions arrangement (Tex. Loc. Gov't Code § 81.032; Tex. Gov't Code § 418.074(a)) — whose travel, education, and membership expenses the county paid while the worker assisted the county judge with floodplain matters. The AG framed the analysis around the rule that a commissioners court has only expressly granted powers plus the implied authority to accomplish duties imposed on it (City of San Antonio v. City of Boerne).

On express authority, section 152.011 covers travel and allowances for county officers and employees paid wholly from county funds, which did not fit a non-employee. Section 152.901 allows payment of reasonable travel expenses for a person who is an agent of the county (and not a section 152.011 officer or employee) while performing authorized county business. Because "agent" is undefined, the AG applied the ordinary meaning of agency, keyed to the principal's right to control (Tex. Att'y Gen. Op. No. JM-590 (1986); State v. $1,760.00 in U.S. Currency). Whether a principal-agent relationship existed and whether the work was authorized are fact and contract questions for the commissioners court (Tex. Att'y Gen. Op. No. GA-0633 (2008); Weidner v. Sanchez; Tex. Att'y Gen. Op. No. JC-0302 (2000)), and unauthorized actions could be ratified later (Tex. Att'y Gen. Op. No. JM-818 (1987); Boydstun v. Rockwall Cty.). Section 152.901 covers only travel; section 152.907 covers continuing-education expenses only for a county or precinct officer, which the worker was not.

For the non-travel expenses, the AG looked to implied authority. The Water Code vests political subdivisions with broad flooding authority, including engaging in floodplain management (Tex. Water Code § 16.315; 44 C.F.R. § 60.1(a)). Because the county had express floodplain-management authority, the commissioners court also had implied authority to exercise broad discretion to accomplish that purpose (Anderson v. Wood), so expenses to qualify someone to assist with floodplain management could fall within that implied authority depending on necessity (Tex. Att'y Gen. Op. No. GA-0472 (2006)). To be constitutional, however, such a payment must be necessary for the direct accomplishment of a legitimate public purpose, supported by adequate consideration, and subject to appropriate controls (Tex. Const. art. III, § 52(a); Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n). The AG concluded those determinations are for the commissioners court in the first instance, subject to judicial review.

Citations

Statutory and constitutional provisions:

• Tex. Loc. Gov't Code § 81.032; § 152.011; § 152.901; § 152.907
• Tex. Gov't Code § 418.074(a)
• Tex. Water Code § 16.315
• 44 C.F.R. § 60.1(a)
• Tex. Const. art. III, § 52(a); art. III, § 52

Cases and Attorney General opinions:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex. 2013)
• Weidner v. Sanchez, 14 S.W.3d 353, 373-74 (Tex. App.-Houston [14th Dist.] 2000, no pet.)
• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• Boydstun v. Rockwall Cty., 24 S.W. 272, 236-37 (Tex. 1893)
• Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 384 (Tex. 2002)
• Tex. Att'y Gen. Op. No. JM-590 (1986)
• Tex. Att'y Gen. Op. No. GA-0633 (2008)
• Tex. Att'y Gen. Op. No. JC-0302 (2000)
• Tex. Att'y Gen. Op. No. GA-0472 (2006)
• Tex. Att'y Gen. Op. No. JM-818 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0235
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0235.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 22, 2019

The Honorable Courtney Tracy Ponthier Opinion No. KP-0235
Newton County Criminal District Attorney
110 East Court Street Re: County payment of expenses for
Newton, Texas 75966 contracted workers in specific circumstances
(RQ-0238-KP)

Dear Ms. Ponthier:

    You ask whether the commissioners court of Newton County ("County") has authority to

spend public funds to pay certain expenses, including transportation and tuition, for an individual
who is not a County employee. [1] Your question arises from the following facts:

              Following Hurricane Harvey, grant money made employment
              available in Southeast Texas through Workforce Solutions. Newton
              County contracted with Workforce to receive a number of those
              employees. One of those contracted workers went to work for the
              County Judge, assisting with floodplain issues, as well as
              performing other secretarial duties ["the contract worker"].

Request Letter at 1; see also TEX. LOC. GOV'T CODE § 81.032 (providing that commissioners court
"may accept a donation of labor or services, gift, grant, [or] donation . . . for the purpose of
performing a function conferred by law on the county or a county officer"); TEX. GOV'T CODE
§ 418.074(a) (providing that political subdivision may accept donated services for purposes of
disaster recovery). You imply that the County did not pay the contract worker's salary but tell us
that it paid for travel, education expenses, and professional membership fees incurred by the
worker while performing certain duties assigned by the county judge. Request Letter at 1-2.
Specifically, you tell us that the contract worker performed several activities related to floodplain
management, including taking an exam to become a certified floodplain manager, enrolling in a
course offered through the Texas Floodplain Management Association, traveling for trainings, and
becoming a member of the Texas Floodplain Management Association. Id. at 1. You tell us that
the county judge paid for these expenses with a county credit card issued to the judge and that the
County then paid the charges. Id. at 1-2. You question whether the County had the authority to
pay those expenses. See id. at 2.

      [1] See Letter from Honorable Courtney Tracy Ponthier, Newton Cty. Crim. Dist. Att'y, to Honorable Ken

Paxton, Tex. Att'y Gen. at 1-2 (July 23, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-
rqs ("Request Letter").

   "[A] commissioners court may exercise only those powers expressly given by either the

Texas Constitution or the Legislature." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28
(Tex. 2003). However, when "the Constitution or Legislature imposes an obligation on a
commissioners court, that commissioners court also has the implied authority to exercise the power
necessary to accomplish its assigned duty." Id. To address your question, we must therefore
determine whether the commissioners court had authority, either express or implied, to pay the
expenses incurred by the contract worker. See id.; Request Letter at 2.

     We begin with express authority. Two legislative enactments are relevant to this issue.

First, section 152.011 of the Local Government Code provides:

           The commissioners court of a county shall set the amount of the
           compensation, office and travel expenses, and all other allowances
           for county and precinct officers and employees who are paid wholly
           from county funds.

TEX. LOC. GOV'T CODE § 152.011. This provision vests the commissioners court with express
authority to pay travel expenses and other allowances for county employees who are paid entirely
from county funds. See id. However, you tell us that the contract worker is not a county employee
and imply that the worker's salary is paid by another entity; thus, this provision does not apply.
See Request Letter at 1. For those individuals who are not compensated wholly from county funds,
the Legislature additionally enacted section 152.901:

           (a)   The commissioners court of a county may authorize the
                 payment of reasonable travel expenses incurred by a person
                 who:

                 (1)   is an agent of the county, or is a board or committee
                       member appointed by the commissioners court; and

                 (2)   is not a county or precinct officer or employee whose
                       travel expenses may be set under Section 152.011.

           (b)   The travel expenses must be incurred by the person while
                 performing county business authorized by the commissioners
                 court.

TEX. LOC. GOV'T CODE § 152.901. Under this provision, a commissioners court has discretion to
authorize the payment of reasonable travel expenses incurred by an individual who is not a county
employee but is acting as an agent of the county while performing county business authorized by
the commissioners court. Id.

    Section 152.901 does not define "agent of the county." See id. Generally, however, agency

"is defined as the legal relationship, based upon an express or implied contract of the parties or
created by operation of law, by virtue of which one party, the agent, is authorized to act for the
other party, who is the principal." Tex. Att'y Gen. Op. No. JM-590 (1986) at 4; see State v.
$1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex. 2013) ("Undefined terms in a statute are
typically given their ordinary meaning."). "A basic test of agency is the right of the principal to
control the actions of the agent." Tex. Att'y Gen. Op. No. JM-590 (1986) at 4. You tell us that
the County contracted for the services of the worker, then assigned this individual to work for the
county judge, and that this individual then incurred travel expenses while performing duties
assigned by the county judge. Request Letter at 1. While these facts suggest that the contract
worker qualifies as an agent for purposes of section 152.901, ultimately the question of whether a
principal-agent relationship exists is a question of fact and contract construction for the
commissioners court to determine in the first instance subject to judicial review. See Tex. Att'y
Gen. Op. No. GA-0633 (2008) at 4; see also Weidner v. Sanchez, 14 S.W.3d 353, 373-74 (Tex.
App.-Houston [14th Dist.] 2000, no pet.) ("[T]he fact that a person is normally an independent
contractor does not preclude a finding of agency as to the particular transaction at issue.").
Similarly, the issue of whether the contract worker was performing county business authorized by
the commissioners court will turn on specific facts, including the terms of the parties' agreement. [2]
See Tex. Att'y Gen. Op. No. JC-0302 (2000) at 2 ("[B]ecause contract questions usually involve
disputed issues of fact of the sort this office cannot determine in the opinion process, this office
does not construe such contracts in that process."). To the extent section 152.901 does apply, it
only authorizes the commissioners court to pay the contract worker's travel expenses. See TEX.
LOC. GOV'T CODE § 152.901. As no other statute directly authorizes the County to pay the other
expenses at issue, we must additionally look to whether the expenses fall within the commissioners
court's implied authority. [3]

    You tell us that the County has adopted a Flood Damage Prevention Order, and at the time

the expenses were incurred, the commissioners court was serving as the designated floodplain
manager for the County. Request Letter at 1-2. Section 16.315 of the Water Code vests political
subdivisions with broad authority related to flooding, including the power to "engag[e] in
floodplain management" and numerous other powers aimed at flood prevention, such as
"authorizing and engaging in continuing studies of flood hazards" and "participating in floodplain
management and mitigation initiatives ... developed by federal, state, or local government." TEX.
WATER CODE § 16.315; see also 44 C.F.R. § 60.1(a) (requiring certain counties to implement a
floodplain management plan consistent with federal criteria to obtain federal flood insurance in
designated areas). Given that the Legislature vested the County with express authority to engage
in floodplain management, the commissioners court therefore also has "implied authority to
exercise a broad discretion to accomplish the purposes intended." Anderson v. Wood, 152 S.W.2d
1084, 1085 (Tex. 1941). Thus, depending on whether a particular expenditure is necessary to
accomplish the County's express directives, expenses related to qualifying an individual to assist
with floodplain management could fall within the commissioners court's implied authority. See,
e.g., Tex. Att'y Gen. Op. No. GA-0472 (2006) at 3 (noting implied authority of county to pay
travel and related expenses of a prospective employee when the expenditure was necessary to
fulfill the county's duty to hire personnel). However, to be constitutional, the payment of such
expenses "must be necessary for the direct accomplishment of a legitimate public purpose, [the
County] must receive adequate consideration for its expenditure, and there must be appropriate
controls in place to assure that the public purpose will be carried out." Id.; see TEX. CONST. art.
III, § 52(a); Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d
377, 384 (Tex. 2002). Whether these expenses accomplish an express purpose of the County and
satisfy constitutional concerns is for the commissioners court to determine in the first instance,
subject to judicial review. See id.

      [2] To the extent the contract worker was not an agent or performing authorized business at the time of incurring

these travel expenses, "[t]hat which the commissioner's court could authorize in the first instance could be ratified by
it at a subsequent date." Tex. Att'y Gen. Op. No. JM-818 (1987) at 5; see also Boydstun v. Rockwall Cty., 24 S.W.
272, 236-37 (Tex. 1893) (concluding that unauthorized contract of a county judge could be ratified on a later date by
commissioners court when the contract was within the court's authority).
[3] The commissioners court does have express authority to pay "reasonable continuing education expenses
incurred by a county or precinct officer if the expenses are related to the officer's official duties." TEX. LOC. GOV'T
CODE § 152.907 (emphasis added). The contract worker, however, is not a county or precinct officer.

                                 SUMMARY

                 Local Government Code section 152.901 authorizes a
          commissioners court to pay travel expenses for a contract worker
          who is not wholly compensated from county funds but is acting as
          an agent on behalf of the county while performing county business
          authorized by the commissioners court.

                  No constitutional or statutory provision vests a
          commissioners court with express authority to pay floodplain
          management expenses incurred by a contract worker who is not
          wholly compensated from county funds. However, pursuant to its
          duty under section 16.315 of the Water Code to engage in floodplain
          management within the county, a commissioners court may have
          implied authority to pay these expenses depending on whether the
          costs are necessary to accomplish an express duty of the county and
          are consistent with Texas Constitution article III, section 52.

                                       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