Untitled Texas Attorney General Opinion ( 1951 )

Hon. John H. Miller Opinion HO. v-1181
District Attorney
36th Judicial District Re: Validity of the submit-
Sinton, Texas ted contract between
McMulletiCounty and Mc-
Mullen County Water
Control and Improvement
District No. 1 for water
for the courthouse and
Dear Mr. Miller: jail.
Your request for an opinion presents the following
factual situation:
In 1949 the Commissioners' Court of
McMullen County authorized the construc-
tion of a water well on the courthouse
g;;un;s at a cost of approximately $25,-
The well was paid for with war-
rants Ad refunded with bonds bearing 4$
Interest, being a county-wide obligation.
In May, 1950, the McMullen County Water
Control and Improvement District was formed
embracing approximately 160 acres of land
which Included the unincorporated town of
Tilden, the county seat. In August, 1950,
the ConunisslonersfCourt of McMullen COWI-
ty entered into a contract with 'the Water
Control and Improvement District relinqulsh-
lng control of the water well for a period
of forty years. By the terms of this con-
tract, the Water Control and Improvement
District was to pay the county a nominal
cash consideration annually as well as fur-
nishing the county palatable water for the
courthouse and jail. The supply of water
exceeds that needed for the courthouse and
jail and a number of residents of Tllden
have connected pipes to the well and, with
the permission of the commissioners’ court,
have been using the water.
Hon. John H. Miller, page 2 (v-1181)
Question: Did the Commissioners' Court
of McMullen County have the authority to en-
ter into this type of contract with the Water
Control and Improvement District, and If so,
is such contract a valid and binding obliga-
tion of McMullen County?
This office, following the decisions of the Tex-
as courts, has repeatedly held that the commissioners' court
is a court of limited jurisdiction and has only such powers
as are conferred upon it, either by express terms or by nec-
essary implication by the statutes and Constitution of this
State. Childress County v. State, 127 Tex. 343, 92~S.W. 2d
1011 (1936); Von Rosenberg v. Lovett, 173 S.W. 508 (Tex.Civ.
App. 1915, error ref.); Roper v. Hall, 280 S.W. 289 (Tex.
Civ. App. 1926); 11 Tex. Jur. 632, Counties, Sec. 95; 20 C.J.
S. 1006, Counties, Sec. 174.
Section 20 of Article 2351, V.C.S., provides:
"The Commissioners Court of each coun-
ty of this State, in addition to the powers
already conferred on It by law, is authorized
and empowered in all cases where such county
has acquired a water supply from subterranean
waters for county purposes, to sell, contract
to sell and deliver any or all of such water
which is not needed for county purposes to
any public or municipal corporation, or poli-
tical subdivision of this State, including
any water control and improvement district,
or fresh water supply district now created
and existing, or which may hereaft~r be creat-
ed under the laws of this State; ag.
y such wa-
ter sold or contracted to be sold and delivered
to any such public or municipal corporation or
political subdivision of this State, may be
used or re-sold for any lawful purpose; and
said Commissioners Court shall have the right
to fix and determine the rate or rates at
which such water shall be sold to any such
public or municipal corporation or political
subdivision of this State, and to enter in-
to contracts to sell and supply such water
at such determined rate or rates for any term
of years not exceeding forty (40); and all
monies received by the county from the sale
of such water shall be placed to the credit
.
Hon. John H. Miller, page 3 (v-1181)
of the General Fund of the county and may be
expended for general county purposes as now
or hereafter permitted by law.
In El Paso County v. Elsm, 106 S.W.2d 393, 395
(Tex.Clv.App. 1937), the court said:
the commissioners court is a creature
oh the Constitution, and its powers are limited
by the Constitution and the laws passed by the
Legislature, and must have authority of law for
the contract, and when the authority is given,
a reasonable construction of It will be given
to effect Its purpose. The matter of constructing
drainage ditches in the county Is, unquestionably,
county business, and the commissioners' court is
the only active governing body of the county, with
a jurisdiction conferred upon it by law to do that
work, and should be given a broad and liberal con-
struction so as not to defeat the purpose of the
law. The commissioners' court has Implied author-
ity to do what may be necessary,,inthe exercise of
the duties conferred upon them.
In Broussard v. Wilson, 183 S.W. 814, 819 (Tex.
Civ.App. lgli;),the court said:
"Whether or not said contract was an im-
provident contract, disadvantageous to the
county and advantageous to Hanson Sons, In-
corporated, in the absence of proof of actual
fraud, 1s not a question for this court to de-
termine. The Legislature has seen proper to
confer upon the commissioners' court the power
and authority to make contracts for the repair-
ing and construction of roads within its county,
and, so long as said courts make contracts within
the restrictions of the Constitution and under
the authority of law, it is not for the courts
to substitute their judgment for that of the
commissioners' court as to the wisdom of such
contracts."
Specific authorization is contained In Article
2351 for a comtnissioners'.courtto sell, contract to sell
Hon. John H. Miller, page 4 (~-1181)
and deliver any or all of such water which is not needed
for county purposes to a water control and improvement
district. It Is our opinion that your factual situation
comes within the purview of Section 20 of Article 2351.
You are therefore advised that in our opinion the
Commissioners Court of McMullen County was authorized to
enter into the contract in question with the McMullen Coun-
ty Water Control end Improvement District No. 1, and the con-
tract is a valid and binding obligation of McMullen County.
SUMMARY
The Commisaioners~ Court of McMullen
County is authorized to contract with the
McMullen County Water Control and Improve-
ment District No. 1 to sell and supply water
from a water well on the courthouse grounds
to the district in return for e sufficient
quantity of palatable water to satisfy coun-
ty purposes and e nominal cash consideration,
the remainder of such water to be used by the
district for any lawful purpose. Art. 2351,
Sec. 20, V.C.S.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE.DANIEL
County Affairs Division Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
Charles D. Mathews Burnell Waldrep
First Assistant Assistant
.
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