Untitled Texas Attorney General Opinion

The Attorney General of Texas
October 12, 1984
JIM MAlTOX
Attorney Gener@
supreme Court Building
Eonorable J. W. Joknsoa, Jr. Opinion No. JIG209
P. 0. BOX 1254a Sutton County Attor,rey
Austin. TX. 78711.2y8 P. 0. Box 1687 Re: City-county agreement con-
51214752501 Sonora, Texas 76550 cerning volunteer firemen
Telex. 9101874.1367
Telecopier 51214750288
Dear Hr. Johnson:
714 JaCksOn, Suite 700 Tour letter rwuestlng an opinion from this office advises:
Dalias. TX. 752024506
21u742.9.944
Sutton Crmty Commissioners Court in conjunction
with the! Sonora City Council entered Into a
4824 Nbdll. AW.. Suit0 160 contractwl agreement to contribute and/or
El Paso. TX. 79905.2793 compensatt! the city of Sonora for electrical
915/533.y&( services provided to thirteen (13) voluntary
firemen. Sutton County is to pay one-half (l/2)
1 Texas, Suite 7W
of the volunteer firemen’s accumulated electrical
“oustcm. TX. 77002.3111 bills on 8~ quarterly basis, and the city of Sonora
713122MW6 is to pu:’ one-half (l/2) of the utility bills.
The city of Sonora has been sending quarterly
statemenu to the comissioners court for payment
806 Sro~dway, Suite 312
LubWck. TX. 794012479
of one-half (l/2) of the electrical bill. The
aixv747.5238 county is withholding payment of the electrical
billings until such time as an attorney general
opinion j.s rendered on the legalities of this
4309 74. Tenth. Suite S
contractual arrangement.
McAllen. TX. 78501.1885
5lz1682-4547
Sutton County has a population of 5,130 according to the most recent
United States Ct~rsus and a property valuation of more than
200 Main PIUa. Suite 400 $100,000.000. Sorwra~is a city within the county.
?m Antonio. TX. 782052797
51212254191
We have not heen provided a copy of the agreement, and our
discussion is necessarily couched in general terms. Generally, it is
An Equal Oppwtunityl not unlawful for ik county such as Sutton County to contract with an
Affirmative Action Employer incorporated city lying vithin its borders to have fire protection
furnished by the city to county areas outside the .municipality.
V.T.C.S. arts. 2351a-1, 2351b-1; Ector County v. City of Odessa, 492
S.W.Zd 360 (Tex. .Ziv. App. - El Paso 1973. no writ). See also
Attorney General Opinion H-279 (1974).
However, article XI, sections 5 and 7 of the Texas Constitution
provide that no debt for any purpose shall ever be incurred in any
p. 944
Ronorable J. U. Johnson, Jr. a. Page 2 (JN-209)
manner by any city or county unless provision Is made, nt the time the
debt is created, for levying and collecting a tax to pay the Interest
thereon and to provide a sinking fund for ita retirement. Within the
meaning of these provisions, a “debt” includes any pecuniary obliga-
tion imposed by contract ex,z?pT. such aa was, both at the time of the
agreement and within the%rful and reasonable contemplation of the
.parties, to be satisfied out of current revenues for the year or out
of some fund then within the, immediate control of the county. McNelll
v. City of Waco, 33 S.W. 322, 324 (Tex. 1695).
According to the inforwtion supplied us, the county auditor does
not have the power to limit r:he county’s pecuniary liahillty under the
agreement, since the count]’ is bound thereby to pay for one-half of
all the electricity the firemen choose to utilize, whatever that
amount might be. See Attorney General Opinion O-4140 (1941).
Moreover. it appears that the obligation extends not merely for a one-
year period but for the duration of a long-term agreement. Thus, the
county apparently undertook a matter related to its ordinary expenses
that might not be paid cut of current revenues. So far as the
information provided us dlsclores, the county failed to create a
sinking fund or to provide an appropriate means to collect money for
such a fund. Under those c,ircumstances, the creation of the debt was
constitutionally impermissible. City of Wichita Falls v. Kemp Public
Libtary, 593 S.W.2d 834, 83:’ (Tex. Cfv. App. - Fort Worth 1980, writ
ref d n.r.e.). The fact that the extent of county liability Is
contingent upon the use of electricity by the firemen does not make
the obligation any less I “debt.” irot& v. Jefferson County, 406
S.W.2d 185, 188 (Tex. 1966) ; T. & N.O.R.R. Co. v. Galveston County,
169 S.W.2d 713, 715 (Tex. 1943).
In view of our conclwion above, it is unnecessary to consider
the applicability of article 1113, V.T.C.S. (no free service if system
encumbered), or vhether an .rgreement to furnish unlimited electricity
for the private use of volunteer firemen constitutes “monetary
remuneration” vithin the neaning of sections 1 and 25 of article
6243e.3, V.T.C.S. (Voluntew Fire Fighters Relief and Retirement Fund)
[cf. V.T.C.S. art. 6701h. IL, subd. 14; Tax Code S152.001(11) (“no or
nominal compensation”) 1, or a violation of article III. section 52(a)
of the Texas Constitution prohibiting the grant of public money or
thing of value by a county to any individual, association, or
corporation, vhatsoever. he generally V.T.C.S. art. 1069; Willis v.
Potts, 377 S.W.Zd 622, 626-(Tex. 1964) (“lucrative office”); Casualty
Undervriters v. Whitman, 1.3’3 S.W.2d 261, 262 (Tex. 1940) (remuneration
as advantage measurable in aoney); Irwin v. State, 177 S.W.2d 970. 973
(Tex. Crf.m. App. 1944) (“pr:unfary profit, gain or advantage”); Haynes
v. Henderson. 345 S.W.2d f57, 861 (Tex. Civ. App. - Austin 1961. writ
ref’d n.r.e.) (“money” fle:rible term. may Include real and personal
property); Flower v. Dart, 260 S.W.Zd 685, 688 (Tex. Civ. App. - Fort
Worth 1953, writ ref’d n.r.e.) (“money” means wealth in comprehensive
p. 945
Ronorable J. W. Johnson, Jr. - Page 3 (JM-209)
sense) ; Attorney General Opinions H-1122 (1978) (retirement program
for volunteer firemen); 8-665 (1975) (emol-ts for volunteer
fireman). Cf. Tex. Const. srt. III, 151-d (survivors' assistance);
V.T.C..S. arr6228f (payments of assistance); art. 6243e. $53. 5, 6,
7. 8. 9, 10 (firemen's rclLl?f and retirement fund); Attorney General
Opinion M-358 (1969).
SUMMARY
An agreement to pay the cost of electi.icity
furnished volunteer firemen for their private use.
which agreement makes Sutton County pecuniarily
liable for an uncertain amount not within the
power of the cour.ty to limit, is invalid where no
provision for a sinking fund to retire the debt
has been made.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Gf,teral
DAVID R. RICHARDS
Executive Assistant Attornq General
Prepared by Bruce Youngbloclc.
Assistant Attorney General
APPROVED:
OPINION COEfMITTEE
Rick Gilpin. Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 946