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Texas AG: Counties May Spend Funds on Holiday Décor

The Texas Attorney General issued an opinion on Monday that concluded a commissioners court may use county funds on holiday lights and decorations.

It was the attorney general’s opinion that a court would most likely determine that a holiday light display does not violate the Establishment Clause of the U.S. Constitution. This constitutional provision provides that “Congress shall make no law respecting an establishment of religion.”

Large numbers of Christians and those who believe in celebrating Christmas as one of this nation’s foundational traditions, believe that both Christianity and Christmas are under attack as never before.

Breitbart Texas reported in December 2015 that the “War on Christmas” came to Orange, Texas. Residents were furious that a nativity scene had been taken down after being displayed for 30 years. The city manager decided to remove it from public property after atheists demanded a display of their own. At the time, Attorney General Ken Paxton said, “The Orange County Commissioners Court is under no legal obligation to remove the Nativity Scene outside the county courthouse during the Christmas season.” He added, “The U.S. Supreme Court has consistently held that passive public displays—such as the Nativity scene–acknowledging our nation’s religious heritage are constitutional. My office stands to provide appropriate legal support to the city and the commissioners court.”

Texas Governor Greg Abbott issued a statement about the Orange, Texas controversy saying, “As the U.S. Supreme Court has continually held, public acknowledgement of our religious heritage is entirely consistent with the Constitution. The Constitution commands accommodation of religion rather than hostility towards it. I strongly encourage the City of Orange to stand up to the demands of a select few who wish to see God thrown out of the public square, embrace the season of Christmas and restore the Nativity Scene immediately.”

In April, Upshur County Criminal District Attorney Billy W. Byrd asked AG Ken Paxton for an opinion on whether a commissioners court could spend county dollars on holiday decorations. The DA did so citing a provision of the Texas Government Code which provides that a commissioners court of a county may develop and administer a program to stimulate business and commercial activity, including to stimulate and develop it as a business location for commercial activity, or to attract conventions, visitors and businesses, or to support literary or art programs, and other interests.

The opinion stated that “Whether placing holiday lighting and decorations in and on county buildings serves one or more of these purposes will depend on the particular facts and therefore cannot be resolved in an attorney general opinion.” Fact finding is beyond the scope of an attorney general opinion.

However, KP-0116 (attached below) set out that “a commissioners court may expend county funds on holiday lights and decorations on county buildings and facilities, and may expend county funds to contract with or donate to a local county literacy program, to the extent that such expenditures serve purposes specified in the Texas statute.”

Whether a particular expenditure serves a purpose stated within the Texas Government Code section (381.004), and meets the requirements of Article III, Section 52(a) of the Texas Constitution, is for the commissioners court to determine in the first instance, subject to judicial review, he opines. A court would likely conclude that such a holiday light display is not a violation of the Establishment Clause. Article III, Section 52(a) of the Texas Constitution prevents counties, cities, or other political or governmental subdivisions from spending public money on private interests.

The attorney general opinion also answered the question of whether a county may expend funds to contract with or donate to a local county literary program. His answer applies to a literacy program as well.

As reported by Breitbart Texas, the Office of the Texas Attorney General has also addressed another issue involving government property when it issued an opinion saying the national motto “In God We Trust”could be displayed on law enforcement patrol vehicles. The Freedom From Religion Foundation (FFRF), an organization based in Wisconsin, had threatened a lawsuit over the display of the motto on patrol cars in Childress, Texas.

In January, we reported that the Supreme Court of Texas issued an opinion ruling in favor of the Kountze cheerleaders. The case had received national media attention after the FFRF filed a complaint and the Kountze School District banned the cheerleaders from making football banners with Bible verses on them. Officials at the district claimed they had the authority to ban the speech because it was government speech.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.

Texas AG Opinion KP-0116

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