Untitled Texas Attorney General Opinion ( 1961 )

THE A?~SORNEY GESERUU
OF TEAxAS
Honorable Raymond W. Vowel1
Executive Director
Board for Texas State Hospitals
and Special Schools
Box S - Capitol Station
Austin, Texas Opinion NO. ``-1081
Re: Questions relating to con-
tract between State Board
of Control and City of Big
Spring for supplying water
Dear Mr. Vowell: to Big Spring State Hospital.
Your request for an opinion reads as follows:
"Under date of March 5, 1959, this
office submitted to you a request pertain-
ing to the validity of a water contract
between this Board and the City of Big
Spring for the supplying of water to the
Big Spring State Hospital. Our question
was subsequently answered by you in
Opinion No. w-689 dated August 17, 1459.
"Presumably, as the result of said
opinion there was enacted during the 57th
Legislature H.C.R. 20 by Read, a copy of
which Is enclosed for your Information.
As a result of the passage of this Resolu-
tion, the City of Big Spring has again
approached this Board with a view of re-
negotiating our present water contract;
however, certain questions have arisen
relative to our authority to so renegotiate.
"It would be appreciated If you would
give this matter further consideration and
advise whether or not this Board is present-
ly empowered to renegotiate the water con-
tract with the City of Big Spring.'
Honorable Raymond W. Vowell, page 2 (``-1081)
The original authority to contraot for the hospital’s
water supply Is found la the statute dlreoting t!e estab-
lishment of said hospital, Article 3185~4~Verno;$ g’,;g
Statutes, wherein It was provided that,
of Control . . . shall have the power and*a%orlty to do
and perform all things ntcessary for carrying out the pur-
pose of this Act. As noted in our previous opinion
on this subject (WW:6&), this power and authority was trans-
ferred to the Board for Texas State Hospitals and~Specla1
Schools by Article 3174b, Vernon’s Civil Statutes.
This prior opinion also made the following statement
with reference to the Board’s right to renegotiate the sub-
ject contract:
“It Is our opinion, however, that
this is a valid and subsisting contract
and the Board has no right to and can-
not terminate said contract OD Pennegotiate
said contract so long as the State of Texas
L??,.qavuL f%lth. maIntiE anIl QQlzmkes UlEt
Big Spring State Htspltal at the City Of
Big Spring, Texas.
We are of the opinion that the passage of H.C.R. 20
does not authorize the Board to renegotiate the contract,
under the facts stated, for the reason that an attempt to
Increase the payments made to the City of Big Spring, when
the state Is to receive no new, adequate consideration,
would violate Sections 44 and 55 of Article III of the
Constitution of Texas, quoted In part below:
“Sec. 44. ‘Ihe Legislature shall pro-
vide by law for the compensation Of all
officers, servants, agents and public con-
tractors, not provided for in this Constl-
tutlon, but shall not grant extra compensa-
tion to any officer, agent, servant, or
public contractors, after suoh pub110 ser-
vice shall have been performed or oontract
entered it&t, for the performance of the
same; . . .
“Sec. 55. The Legislature shall have
no power to release or extinguish, or to
authorize the releasing or extinguishing,
In whole or la part, the indebtedness, lla-
blllty or obligation of any oorporatlon or
Honorable Raymond W. Vowell, page 3 (``-1081.)
individual, to this State or to any county
or deflned subdivision thereof, or other
municipal corporation therein, except
delinquent taxes which have been due for
a period of at least ten years." As
amended Nov. 8, 1932.
It Is well settled that a resolution does not have the
force and effect of a statute, but is rather an expression
of the Legislative opinion or will with regard to a partlcu-
lar subject. But neither resolution nor statute may author-
ize action by any agency or officer of the state that Is
prohibited by the Constitution.
In Delta Counts v. ack rn 100 Tex. 51 93 S.W. 419
(1906), the action of the Com%ssl~e&' Court in rgduclng
the rate of interest that a note given to the County by a
purchaser of land was to bear for the remainder of time until
payment was held to be a release to the purchaser of an
obligation to the County which was forbidden by Section 55
of Article III of the Constitution of Texas.
In Fihoads Drllllnn Co. v. Allred, 123 Tex. 299, 70
S.W.2d 576 (19341, the Court, in considering statutory provi-
sions authorizing the State Board of Mineral Development to
modify or revise existing oil and gas leases by reducing,
within limitations, royalties payable to the State, presented
the constitutional question posed as follows:
'Ihe question presented Is whether these
sections of the Constitution fiectlons 44,
51, 53,and 55 of Article II$ or any of them,
prohibit the Legislature from authorizing the
diminishing or reducing, for a consideration,
of an executory obligation to the state In an
existing contract. Or the question may be
said to be whether the Legislature has the
authority in view of these sections of the
Constitution, to authorize the amendment or
modification of an existing contract with the
state, for a consideration."
In upholding the constitutionality of the statute,
the Court made the following statements:
“Since none of the sections of the Con-
stitution which have been cited forbids,
either in terms or by necessary or reasonable
- _
Honorable Raymond W. Vowell, page 4 (``-1081)
Implication, the changing or modifying of
contracts with the state so as to reduce for
a consideration executory obligations to the
state. and since the decisions which have
been discussed construe these sections of the
Constitution as forbidding gifts, gratuities,
or bounties, or the gratuitous releasing or
extinguishing of obligations, our opinion is
that chapter 120 In its necessary effect and
operation as determined from Its terms, Is
not unconstitutional. Judklns v. Roblson,
109 Tex. 6, 160 S.W. 955. It authorizes the
board to revise existing contracts, but it
contemplates and provides that the revision
be accomplished by supplemental contract,
meaning, of course, a valid contract su
ed bs a consideration. (Emphasis added 3=
'The act would be within the constltutlon-
al prohlbltlon If It undertook to authorize the
gratuitous releasing in whole or in part of an
existing indebtedness, liability, or obllga-
tion to the state. Delta County v. Blackburn,
100 Tex. 51, 93 S.W. 419, 420; Judkins v.
Roblson, 109 Tex. 6, 160 S.W. 955' Greene v.
Robison, 177 Tex. 516, 8 S.W. (2d) 655;
Empire Gas & Fuel Co. v. State, 121 Tex.
138, 47 S.W. (2d) 265."
Under the facts presented, It does not appear that
the parties contemplate an assumption by the City of any obllga-
tion beyond that which it Is presently bound to perform. In
the event the parties reach an agreement affording a new and
adequate consideration to the State, they then may renegotiate
the contract.
SUMMARY
The Board for Texas State Hospitals and
Special Schools Is not empowered to re-
negotiate its water contract with the City
of Big Spring unless such renegotiation
affords some new and adequate consideration
to the State.
Honorable Raymond W. Vowell, page 5 (``-1081)
Yours very truly,
WILL WILSON
Attorney General of Texas
DDM:lgh Assistant
APPROVED:
OPINION COMMITTEE
w. V. Geppert, Chairman
L. P. Lollar
William E. Allen
Raymond V. Loftln, Jr.
Houghten Brownlee, Jr.
REVIEWRDFORATTORN!3YGENRR~
BY: Morgan Nesbitt