Case Information
*1 Grover Sellers
Mr. Charles H. Theobald Opinion Ho. O-7202 Re: Authority of Galveston County County Attorney Galveston County Galveston, Texas to employ a representative to ap-
pear before congressional committees for Federal aid for Galveston County proposed improvements. Dear Mr. Theobald:
Your letter of April 3, 1946, addressed to Attorney General Grover Sellers, requesting an opinion of this depart- ment re ative to subject has been referred to the writer for i
reply. You submitted a memorandum with your request, a por- tion of which is quoted as follows:
* . . .
“Will you please advise the answer to the follow- ing questions?
“1. Whether the Commissioners Court of Galveston County is authorized to employ a representative in Washington to represent the county’s interests before Federal Agencies in connection with one or all of the following projects:
a. Securing for Galveston County a seawall ex- tension.
b. Securing Federal aid for the Texas City pro- tective works.
c. Securing Federal aid for a new courthouse and jail for Galveston County.
“2 . Whether the Commissioners Court of Galveston County is authorized to employ the representative in Washington at an annual salary to represent the County of Galveston before various Federal agencies in connec- tion with general legitimate projects of said county without limiting the employment to projects that are now specifically known.
“The representative, if employed will appear be- fore Congress or congressional committees and before *2 Mr. Charles H. Theobald, page 2
various Federal Agencies and will openly and publicly represent the County of Galveston in the presentation of data and information in connection with various projects of the County of Galveston. The said repre- sentative will not attempt to exercise his personal influence but only present before the various agencies in their official capacities the facts upon which the County of Galveston relies in attempting to obtain Federal Ald in connection with various projects. It is contemplated that the said representative will also be employed for the same purposes insofar as the in- terests of the City of Galveston are concerned and a portion of his expenses will be paid by the City of Galveston Chamber of Commer~e.~
,Article Section 18 of the Constitution of the State of Texas provides in part as follows:
”
. l . . "The County Commissioners so chosen with the County Judge, as presiding officer, shal 1 coapose the County Commissioners' Court, which shall exercise such powers and jurisdiction over all county business as is conferred by this Constitution and the laws o the 1 State, or as may be hereafter prescribed.*
In answering your first question, we believe that it is necessary to first determine whether the pro eats listed in a, above, constitute *county business 4 B, and c as that tes;; igeused' in the a ove iI quotation from the Constitution of Texas.
case of Glenn va Dallas County, Bois DtArc Island Levy District 275 S.W, 137 it was held that under the Constitution providing that County ?!ommlssioners 1 Courts shall exercise such power and jurisdiction over all county business as is conferred by the Con- stitution and laws of the State "county business" should be given broad and liberal construction so as to extend powers to any and all business of the county, and any other business of the county connected with or interrelated with business of any other county properly within jurisdiction of such courts under the Constitu- tion and law.
In the case of Galveston County vs. Gresham 220 S.W. it was held that the construction of a seawall wIthin the liD& s of a city for the protection of the lives and property of the inhabitants of the county is “county busines~‘~ within the jurisdiction of the Commissioners 8 Court, under the provisions of Vernon’s Annotated State Constitution Sec. 18 and Vernon’s Annotated Civil Statutes,
Arte 6830.
In the case of West vs. Coos County, 237 Pacific 961, 115 Ore. 409, it was held that where a county contracted with plaintiff for services to be rendered to the county in attempt- ing to secure from the United States a large sum of money, equitably due the county, it was transacting “county business.”
The following cases have held that the building of a county courthouse is “county business ‘I within the meaning of the Constitution. Kraus vs. Lehman, 83 N.E. 714 170 Ind. 408; Macy v. Board of Commissioners of mama County, 83 N.E. 718 170 Ind. 707; Board of Commissioners of Newton County v. Stite Ex Rel Bringham, 69 N.E. 442, 161 Ind. 616.
It is therefore the opinion of this department that the projects mentioned in your memorandum constitute “county busine ssn as that term is used in Art. 5 Sec. 18 of the Consti- tution of Texas, and hence would be lega i and legitimate proj- ects for the Commissioners t Court of Galveston County to under- take e
Having determined that these projects constitute county business, we will now pass to the proposition of whether or not Galveston County has the authority to employ a represent- ative in Washington to represent its interests before Federal agencies in connection with such projects.
In the case of Gibson vs* Davis (Civ.,App.) S.W. 202, it was held that a contract in payment of attorney’s fees by county commissioners1 court, to get up bond records prepare petitions for bond elections, arrange for printing bon K s9 ob- tain approval thereof by the Attorney General, and to get opin- ion of bond attorney as to the validity of bonds was not an in- valid contract.
In the case of Roper v. Hall (C1v.App.J 280 S.W. 289, it was held that the authority of the commissioners1 court to make contracts in behalf of a county was limited to that confer- red expressly or impliedly by the constitution and statutes and that the commissioners’ court was impliedly authorized by such constitution and statutes to contract with an individual for the compilation of taxation data,
In the case of Galveston County vse Gresham, supra, it was held that Galveston County Commissioners’ Court having broad powers to construct a seawall, has authority to employ an attor- ney to aid in carrying out that power by appearing before the River and Harbors Committee of Congress to explain and urge its approval of the proposed improvement and the grant of Fe&era1 aid in the construction thereof.
Hon. Charles H. Theobald, page 4
We believe it is unnecessary to cite further authority on this proposition as it is our opinion that under the decisions of this State a county has the authority to contract with an at- torney or representative to seaure for it any right that the coun- ty may have under the law and to agree to pay a reasonable compen- sation for such service. We therefore answer your first question in the affirmative,d .
It is the desire of this office, however, in connection with the affirmative answer given to the question above presented, to point out the difference between a valid contract for profes- sional services to appear in behalf of an individual, county or other body to espouse its cause before governmental agencies and a “lobbying contract” which is void as against public policy and denounced by Arts. 179-183, Vernon’s Penal Code of the State of Texas.
The doctrine of our Texas courts is in entire accord with the authorities generally throughout the country, elucidated (3 Williston on Contracts, Art. 1727) thus:
“It has been said by the Supreme Court of the United States, in regard to the presentation to Con- gress of a claim against the United States: ‘We entertain no doubt that in such cases, as under all of the circumstances an agreement , express or im- plied for purely prohessional services is valid.
Within this category are included drafting the peti- tion to set forth the claim,’ attending to the tak- collecting facts, prepaing argu- ing of testimony ments, and submi ting them orally or in writing, to t
a committee or other proper authority, and other services of like character. All of these things are intended to reach only the reason of those sought to be influenced. They rest on the same principle of ethics as professional services rendered in a court of justice, and are no more exceptionable.* On the other hand, personal solicitation of individual mem- bers is a method which cannot be made the subject of contract.”
In 1 Cooley’s, Constitutional Limitations (8th Edi- tion) page 280, in discussing this proposition, the following is said:
“The law also seeks to cast its protection around legislative sessions, and to shield them against corrupt and improper influences, ‘by making void all contracts which have for their object to *5 Hon. Charles H. Theobald, page 5
influence legislation in any other manner than by such open and public presentation of facts, arguments and appeals to reason as are recognized as proper and legitimate with all public bodies.
While counsel may be properly employed to present the reasons in favor of any public measure, to the body authorized to pass upon it, or to any of its committees empowered to collect facts and hear ar- guments, and the parties interested may lawfully con- tract to pay for this service yet to secretly ap- proach the members of such a II ody with a view to in- fluence their action at a time and in a manner that do not allow the presentation of opposite views, is improper and unfair to the opposing interests; and a contract to pay for this irregular and improper service would not be enforced by the law.”
The following is quoted from the opinion of the Court of Civil Appeals at Fort Worth in the case of Graves & Houtchens vs. Diamond Hill Independent School District reported in 243 S. W e, p. 638:
“In the recent words of Williston on contracts, Vol. Sec. 1727, the author thus states the ruling:
“IAn agreement by a legislator to exercise his judgment in a particular way is not binding law. His promise, if without consideration, is not binding for that reason, and if he bargains for considera- tion it is illegal. A contract with one who is not a legislator, to induce legislators to vote in a par- ticular way, is open to similar objections if the methods of inducing legislative action are improper.”
In the case of Davis vs. Texas Farm Bureau Cotton As- sociation (Comtnb of App., Sec. B) S.W.(2d) 90 which was a suit on a contract to pay ari attorney to appear tl efore the Texas Legislature in behalf of a certain bill pending before it and to-urge its passage, the Commission of Appeals-Section B, speak- ing through Justice Ryan, said:
“Whenever any, such paid or employed representa- tive goes beyond the limitation of the statute (Art.
180, 181, Penal Code of Texas) and singles out indi- vidual legislators, privately, and either by argu- ment or otherwise endeavors to influence their action, he transgresses the law, however fair in intent he may been
Further quoting from the opinion in the Davis case, su- pra: *6 6
“The distinction between valid and invalid con- tracts, with paid or employed representatives to further legislation appears to be that in the former the services or the result thereof are used, or ae- signed to be used openly and publicly, either before the Legislature itself or some committee thereof as a body, while in the latter a person is employed to exert his personal influence whether great or little, with indiVidua1 members, or t o labor privately in any form with them, out of the legislative halls in favor of or against any act or subject of legislation. Per- sonal influence exerted over the individual members of a Legislature will vitiate a contract, the consia- eration of which is the procurement of legislative .action. Such a contract should be held void though there is no actual corruption in the particu ar case. i Although the contract may not expressly provide per- sonal solicitation, it will be declared illegal if it appears that in carrying out the contract it is necessary to resort to ‘lobbying’; it is enough that such is the tendency of the contract. R.C.L. ‘733.”
The memorandum submitted with your request for an opinion presents the following facts:
“The representative, if employed will appear before Congress or Congressional Co lid ttees and be- fore various Federal ,Agencies and will openly and publicly represent the County of Galveston in the presentation of data and information in connection with various projects of the county of Galveston.
The said representative will not attempt to exercise his personal influence but only present before the various agencies in their official capacities the facts upon which the County of Galveston relies in attempting to obtain Federal aid in connection with various projects. It is contemplated that the said representative will also be employed for the same purposes insofar as the interests of the City of Galveston are concerned and a portion of his ex- penses will be paid by the City of Galveston and the Galveston Chamber of Commerce .‘I
A contract with an attorney or other representative to represent Galveston County in the manner set out above would, in the opinion of this department, be a valid contract for profes- sional services but would remain such only so long as same was carried out str ctly in accordance with the factual situation above presented and in such a manner as not to infringe upon the principles of law above discussed.
Passing to the second question presented in your memo- randum, it is the opinion of this department that since Galves- ton County has the authority to employ a representative to rep- resent the County's interests before Federal Agencies in Washing- ton with reference to specific projects coming within the defi- nition of "county business" as used in Art. 5, Sec. 18 of the Constitution of Texas, that it would have the authority to employ such representative on an annual basis to represent the County in connection with all legitimate projects pending be,fore Feder- al Agencies in Washington, so long as this representation was confined to projects which constituted "county business" as used in Art. Sec. of the Constitution.
Your second question is, therefore, answered in the affirmative.
Very truly yours ATTORNEY GENERAL OF TEXAS By /s/ Douglas E. Bergman Douglas E. Bergman, Assistant APPROVED APR 23, 1946
/s/ Carlos Ashley
FIRST ASSISTANT ATTORNEY GENERAL
APPROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN
DEB/bw:wb