Untitled Texas Attorney General Opinion ( 1989 )

THE ATTORNEY GENERAL
OF TEXAS
September 18, 1989
Honorable Elizabeth C. Jandt Opinion No. JR-1095
Guadalupe County Attorney
105-A North Austin Re: Validity of contract for
Seguin, Texas 78155 library services (RQ-1647)
Dear Ms. Jandt:
You have asked several questions about a 1964 contract
for library services executed by both the City of Seguin
(the city) and Guadalupe County (the county) as parties, as
well as by the Board of Trustees of the Seguin and Guadalupe
County Library (the board).
The contract, YOU advise, recites that the county
theretofore established the board to supervise the erection
of a library building and to manage the library to be housed
there. By the terms of the agreement, the board agreed to
render free library service for all Guadalupe County under
the authority of article 1694, V.T.C.S. The provisions of
that statute are now embodied in section 323.011 of the
Local Government Code, a nonsubstantive revision of the
former law. &g Acts 1987, 70th Leg., ch. 149, at 1129.
For its part, the city agreed, among other things, to
the erection of the building on city-controlled and city-
maintained property, and promised to relinquish to the
board, as necessary, control of the grounds (which the city
would continue to maintain nevertheless). According to the
agreement, you explain, the board was to be appointed by the
commissioners court of the county "with the consent and
approval" of the city council. The board was to regularly
furnish the city and county with financial statements and
submit budgets for their approval. The city and county
expressed an intention to undertake certain financial
obligations to support the board's operations.
In 1975, we understand, certain "by-laws" proposed by
the board were adopted by both the city and the county as
"amendments to the contract," altering, among other things,
the manner in which board members were selected. In 1988,
however, the commissioners court of the county voted to
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rescind the "by-law" amendments. The city has not joined
the county in that action, nor has the board agreed to it.
You ask, first, about the validity of the 1964
agreement: second, about the validity of the 1975 *'by-law@*
amendments to the agreement; third, about the effect upon
the arrangement of the 1971 enactment of the Interlocal
Cooperation Act; and, finally, about the effect of the 1988
rescission vote by the county commissioners.1 We need not
address your first question about the original validity of
the 1964 agreement because we have concluded that the 1975
adoption of the @'by-lawl* amendments to the agreement
amounted to ratification of an arrangement sanctioned by the
Interlocal Cooperation Act in 1975, whether or not the
arrangment was sanctioned by law prior to the enactment of
that statute.
The City of Seguin has been a home-rule city since
1971. Home-rule cities have general authority to include in
their charters any power so long as it is not inconsistent
with the constitution or general laws enacted by the
legislature. Tex . Const. art. XI, 5 5; Local Gov't Code ch.
9; Forwood v. Citv of Tavlor, 214 S.W.2d 282 (Tex. 1948).
The powers of counties are not so far-reaching and are often
said to depend on authorization by the constitution or the
legislature. See 35 D. Brooks, County and Special District
Law !j5.11 at 151 (Texas Practice 1989).
In 1968 the Texas Constitution was amended to add
article III, section 64(b), reading:
(b) The county government, or any polit-
ical subdivision(s) comprising or located
therein, may contract one with another for
1. Our response to your request is based upon the
above-cited allegations of fact reported to us. It should
not be construed as a confirmation of their accuracy. The
attorney general does not determine fact disputes in the
opinion process. Our conclusions are not based on an
independent examination of the contract and other
instruments supplied with your request. We have made no
independent legal analysis of their effect but have,
instead, for purposes of this opinion, accepted your
representation of the facts surrounding them and their
intended legal consequences.
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Honorable Elizabeth C. Jandt - Page 3 (JM-1095)
the performance of governmental functions
required or authorized by this Constitution
or the Laws of this State, under such terms
and conditions as the Legislature may
prescribe. No person acting under a contract
made pursuant to this Subsection (b) shall be
deemed to hold more than one office of honor,
trust or profit or more than one civil office
of emolument. The term "governmental
functions,1' as it relates to counties,
includes all duties, activities and
operations of statewide importance in which
the county acts for the State, as well as of
local importance, whether required or
authorized by this Constitution or the Laws
of this State.2
And in 1971, the legislature enacted the Interlocal
Cooperation Act, specifying that
Any local government may contract or agree
with one or more local governments to perform
governmental functions and services under
terms of this Act.
V.T.C.S. art. 4413(32c), § 4(a). Library services were
expressly included in the definition of "governmental
functions and services." Id. § 3(2).
Thus, at the time the 1975 *@by-law*@amendments to the
contract were adopted, both the city and the county
possessed full authority to contract with each other for
the establishment and operation of a public library, whether
or not they possessed it before that time. The provisions
of the Interlocal Cooperation Act were made "cumulative of
all other laws or parts of laws, general or special." Id.
§ 7.
2. Some confusion exists as to whether subsection (b)
originally applied to all counties or only to those counties
(Tarrant, El Paso) to which subsection (a) applied, but the
matter was mooted in 1970 when subsection (a) was amended to
apply to all counties. -1 Braden, The Constitution of
the State of Texas: An Annotated and Comparative Analysis,
at 294 (1977).
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If we assume that the contract between the city and the
county was unenforceable and void at the time it was made in
1964 because one or the other (or both) of them was acting
ultra vires, still, counties and cities may ratify a
contract which they might lawfully make at the time of such
ratification although they had no such power when the
contract was executed. See 56 Am. Jur. 2d Municiual
Coruoration , C nties. and Other Political Subdivisions
5 509 at 56: (lzyl) ; 14 Tex. Jur. 3d Contracts § 144 at 243.
In Jcutzschbach v. Williamson County 118 S.W.2d 930
(Tex. Civ. App. - Austin 1938, writ disA#d) the commis-
sioners court, without a written contract Lr written
request from the owner of the land, entered an o:der that
certain terracing work be done although a statute permitted
such county work only "after request in writing by the owner
of the land." (There was, instead, merely an oral agreement
struck by the land owner and one of the commissioners.)
Thus, the contract was ultra vires, but when the land owner
refused to pay for the work, the commissioners court
instituted suit, which, according to the appellate court,
amounted to a ratification of the contract, rendering it
valid. See also Williams v. Pure Oil co., 78 S.W.2d 929
(Tex. 1935); Mobile Electric Co. v. Citv of Mobile, 79 So.
39 (Ala. 1918).
In our opinion, by adopting the "by-law" amendments to
the 1964 agreement in 1975, after the passage of the
Interlocal Cooperation Act permitted such contracts to be
legally made, the county and the city confirmed and ratified
their arrangement, as modified by the "by-law" amendments,
curing any ultra vires defect that might have caused the
original agreement to be unenforceable.
We do not pass upon the particulars of the 1975
"by-lawsl' amendments. We merely advise that it was within
the power of the city and county in 1975 to revise their
pre-existing agreement and, by doing so, to ratify and
validate the arrangement between them.
On the basis of the information furnished us, it
appears that the attempted unilateral rescission of the
agreement by the county commissioners court in 1988 was
ineffective. Assuming that the original 1964 contract was
invalid as ultra vires, it was originally subject to
disaffirmance at the election of the county. But after the
county elected in 1975 to affirm and ratify the agreement by
adopting the *'by-lawV1amendments thereto, the arrangement
was thereafter the subject of a binding contract that could
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not be cancelled arbitrarily by the commissioners court
alone. See 14 Tex. Jur. 3d Contracts §!j 322-328 at 546; 10
Tex. Jur. 3d Cancellation and Reformation of Instruments
§ 53 at 557.
SUMMARY
It was within the power of the City of
Seguin and the County of Guadalupe in 1975 to
revise and ratify a pre-existing 1964
agreement between them regarding library
services. Even if the original 1964
agreement between them was originally invalid
as ultra vires, ratification in 1975 was
effective because the Interlocal Cooperation
Act authorizing such agreements had become
law. After such ratification, the agreement
was not subject to unilateral rescission and
cancellation by the county.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
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