The opinion
THE ATTOHSEY GESERAL
OF TEXAS
October 26, 1987
Honorable John L. Barnhill Opinion No. JR-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. &g Board of
Reaents 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, 58 (county u provide for
care of indigent inhabitants). In order to show that
article 2351(11) created a property interest protected by
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Honorable John L. Barnhill - Page 2 (~~-815)
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 Reaents 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 soecific
benefits. One court phrased the issue as whether a state
statutory scheme substantially limits the state*=
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:
[Vliewed functionally, 'property' is what
is securely and durably yours under state
(or as aldberq federal) law, as distinct
from what you hold subject to so many
conditions as to make your interest meager,
transitory, or uncertain.
Reed v. Villaae 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 Reaents v. Roth,
400 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) h conjunction with the Lubbock County guidelines
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Honorable John L. Barnhill - Page 3 (JR-815)
created a constitutionally protected property interest.
& 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
articles 2351(11) itself created an entitlement. Mireles
. Crosbv Co&V, 724 F.2d 431 (5th Cir. 1984); SteDhens
. 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
aenerallv R ilroad Commission of Texas v. Pullman, 312
U.S. 496 (:941). The court in Wireles, using language
virtually identical to that in SteDhens, wrote:
The district court properly invoked the
abstention doctrine because it is unclear
whether article 2351, 511, 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,' Wonahon and
Sisson v. Van Zandt Countv, 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 w m a pauper within the statute.
HillaCV COUntV v. ValleV BaDtiSt IiOSDital,
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 * no authoritative
statement from ti: 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 Wireles and SteDhPnS, that is, whether
article 2351(11) itself creates a property right, and, if
so, the nature of that right.
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Honorable John L. Barnhill - Page 4 (X4-815)
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. Eft Tex. Const. art.XVI,
§8 (counties peay provide for care for its indigent
inhabitants). Also, several cases have stated that
article 2351(11) requires counties to provide support for
paupers. &&Bonahon and S is 8 o n v. Van Zandt County, 3
Tex. Civ. Gas. 240, 241-42 (Ct. App. 1886); citv f
Wichita Falls v. Travelers Insurance Co 137 S.W.2d 17:
174 (Tex. Civ. App. - Fort Worth 194,;. .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); WW-533 (1982) JW-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. m Attorney General
Opinions O-2217 (1940); C-246 (1964); WW-533 (1982); see
&&G Attorney General Opinions WW-683 (1959); H-892
(1976). Rut see Attorney General Opinion WW-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. Monah n d Sisson Van Zandt
Countv, 3 Tex. CieCas. 241: (C:" App. 18136):. 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, 51,
at 2, codified as art. 4438f, V.T.C.S. S e aen rally Bill
Analysis to S.B. 1, 69th Leg. (1985), on %ile iz Legisla-
tive Reference Library. That act established requirements
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Honorable John L. Barnhill - Page 5 (JM-815)
for county provision of indigent health care, and it
authorized the Department of Human Services to establish
more specific guidelines. Art. 4438f, 82.03 (eligibility
provisions): 53.01 (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, 94, at
33. The bill analysis to the Indigent Health Care and
Treatment Act acknowledges that fin the past the
law -- that is, article 2351(11) -- did not provide
guidelines governing counties8 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
loo-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. coaa * Or
Supp. 1320 (N.D. Ga.), effi9 t47 ?zdv146? (:itl?gci~:
1984). The plaintiffs in Scoaains argued that a Georgia
law that required counties to set standards governing the
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Honorable John L. Barnhill - Page 6 (JM-815)
issuance of malt-beverage licenses created a property
right enforceable under the 14th Amendment. The court
rejected that argument, holding that even where state flaw
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 licensina ordinance
upon which all decisions pertaining to
[malt-beverage] permits or licenses shall be
based. . . .' & S5A-502(b)(l) (emphasis
added). Section 5A-502 does not create a
protectible property interest because it
mere1 y 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. m ,purham,
3, at 1180-81; Shaml
P iac, 620 F.2d 118, 12:-21. (6th Cizf
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.
Scoaains v. Moore, 579 F. Supp. at 1325 (N.D. Ga.), aff'd
747 F.2d 1466 (11th Cir. 1984). The Scoaains 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 prom-
ulgate 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.
p. 3862
Honorable John L. Barnhill - Page 7 (JM-815)
Your question raises a similar issue. Article
23X(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 Scoaains 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. &8 Rotunda,
Nowak & Young, Treatise on Constitutional Law: Substance
and Procedure 517.5, V.2 (1986) (if a person has no claim
of entitlement, there need not be any process at all): see
m Weber v. Citv of Sachse, 591 S.W.Zd 563, 568 (Tex.
Civ. App. 1979, no writ)(state law reguiring'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. &88 Quinn v. Svracuse Model Neiahborhood
Corooration, 613 F.2d 438, 448 (2d Cir. 1980) (longstand-
ing 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 . . . .
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Honorable John L. Barnhill - Page 8 (m-815)
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
2;:;;). In Barrinaton v. Cokinos, 338 S.W,2d 133 (Tex.
, the court wrote:
Wln 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.
u. at 140. The question, then, is whether support of
paupers is a proper public purpose. The Texas Constituion
itself makes clear that the support of paupers is a public
purpose. &B Tex. Const. art. XVI, 58 (allowing counties
to provide a poor house and farm). See also Housing
. .
A th v of i v of Dalla H aqinb otham, 143 S.W.Zd
71,8y1jTex. :9:0) (provid:nG' hiusing 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 I truly yo r ,
M *,
JIM MATTOX
Attorney General of Texas
WARYKELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
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Honorable John L. Barnhill - Page 9 (JM-815)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 3865