Case Information

*1 The Attorney General of Texas October 12, 1984 JIM MAlTOX

Attorney Gener@

supreme Court Building P. 0. BOX 1254a Telecopier Austin. TX. 78711.2y8 ^{[51214752501]} Telex. 9101874.1367 ^{[51214750288]} P. 0. Box 1687 Eonorable J. W. Joknsoa, Jr. Sonora, Texas Dear Hr. Johnson: Sutton County Attor,rey 76550 Opinion No. JIG209 cerning volunteer Re: City-county agreement con- Tour letter rwuestlng an opinion from this office advises: 714 JaCksOn, Suite 700 Dalias. TX. 752024506 21u742.9.944 Sutton Crmty Commissioners Court in conjunction

with the! Sonora City Council entered Into contractwl agreement to contribute and/or 4824 Nbdll. AW.. Suit0 160 compensatt! city of Sonora electrical El Paso. TX. 79905.2793 services provided to thirteen voluntary 915/533.y&(

firemen. Sutton County is to pay one-half (l/2) of the volunteer firemen’s accumulated electrical 1 Texas, Suite 7W bills on 8~ quarterly basis, and the city of Sonora “oustcm. TX. 77002.3111 is to pu:’ one-half (l/2) of the utility bills. 713122MW6 The city of Sonora has been sending quarterly statemenu to the comissioners court for payment 806 Sro~dway, Suite 312 of one-half (l/2) the electrical bill. The LubWck. TX. 794012479 is withholding payment of the electrical aixv747.5238 billings until such time as an attorney general opinion j.s rendered on the legalities 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

We have not heen provided a copy of the agreement, and our

discussion is necessarily couched in general terms. Generally, is not unlawful ik county such as Sutton County to contract with an An Equal Oppwtunityl incorporated city lying vithin its borders to have fire protection Affirmative Action Employer

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 *2 Ronorable J. U. Johnson, Jr. a. Page (JN-209)

manner by any city or county unless provision Is made, nt the time the debt is created, levying and collecting a tax to pay the Interest fund for ita retirement. Within the thereon and to provide a sinking a “debt” includes any pecuniary obliga- meaning of these provisions, imposed by contract ex,z?pT. such aa was, both at the time of the tion 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 since the count]’ is bound thereby to pay for one-half agreement, all the electricity 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 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 liability Is contingent upon the use of electricity by the firemen does not make the obligation any less irot& v. Jefferson County, 406 I “debt.” 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, 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 the private use of volunteer 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 *3 Ronorable J. W. Johnson, Jr. - Page 3 (JM-209) General Opinions H-1122 (1978) (retirement program

sense) ; Attorney volunteer firemen); (emol-ts volunteer 8-665 III, 151-d (survivors' assistance); fireman). Cf. Tex. Const. srt.

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 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 TOM GREEN

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