OFFICE OF THE ATTORNEY GENER.AL

. STATE OF TEXAS

JOHN CORNYN

July lo,2001

The Honorable Sky Sudderth District Attorney 35th Judicial District Brown County Courthouse Brownwood, Texas 76801 Opinion No. JC-0395
Re: Whether adistrict attorney may, by contract, bind the use ofcounty funds, and related question (RQ-0347-JC)
Dear Mr. Sudderth: Unless aparticular county officer is specifically authorized to do soby law, only acounty commissioners court may enter acontract that binds the use ofcounty funds. SeeAnderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Your predecessor in office leased apostal-meter system for fifty-one months,* and you indicate that the lease payments are made from county funds.* With fourteen months left on the lease, you wish to terminate the lease and stop making lease payments, and you ask whether you are bound by this long-term lease. See Request Letter, note 1,at 1. You are not bound by the lease; your predecessor in office had no authority to enter into a contract purporting to bind the expenditure of county funds. Additionally, because the multiyear form contract your predecessor signed neither provides for levying and collecting atax topay the interest and to create asinking fund nor permits the county toterminate the contract atthe end ofeach year, itcreates anunconstitutional debt. See TEX.CONST. art. XI, 8 7; Contract attached to Request Letter, supva note 1,at 1. Under article XI, section 7 of the Texas Constitution, a multiyear contract requiring expenditures of county funds that is not accompanied by the levy and collection of designated taxes must allow the county to terminate the contract at the end of each year. See TEX.CONST. art. XI, 57 (prohibiting county generally from incurring debt); City ofBonham v.S.W.Sanitation, Inc., 871 S.W.2d 765,768 (Tex. App.-Texarkana 1994, writ denied) (defining “debt” and indicating that multiyear contract that provides right to terminate at the end of each year does not create debt). Soon after you took office on January 1,2001, you discovered that your predecessor had signed, in November 1997, afifty-one month lease for apostal-meter system. See Request Letter, supra note 1, at 1; Contract attached to Request Letter, supra note 1. Believing that the leased

‘Letter from Honorable Sky Sudderth, 35th Judicial District Attorney, to Honorable John Cornyn, Texas Attorney General (Feb. 7, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

2Telephone Conversation with Honorable Sky Sudderth, 35th Judicial District Attorney (May 21, 2001) [hereinafter Telephone Conversation I1.The Honorable Sky Sudderth - Page 2 (JC-0395)

equipment exceeds your office’s needs, you sought to terminate the lease with fourteen months remaining. Request Letter, supra note 1,at 1. The lessor did not agree to the termination. See id.
You accordingly ask whether a long-term lease agreement that a previous elected officeholder entered binds the current elected officeholder. Id. You appear to question whether, solely because your predecessor signed the contract and you have subsequently replaced him, you may terminate the agreement. We donot reach this question because we conclude the former district attorney had no authority to enter into the contract. The contract at issue here warrants some description. It is aform contract between Pitney Bowes Credit Corporation as lessor and “Lee Haney, District Attorney Brown County” as lessee. Contract attached to Request Letter, supra note 1. It lists the equipment to be leased and includes achecklist for items or services that aretobe included inthe lease payments. See id. In afill-in-theblanks format, the contract states that the initial lease term is for “51”months, with lease payments tobepaid quarterly. Id. Finally, the lessee acknowledges the information contained in apre-printed paragraph, including that “[t]his form contains all applicable terms and conditions relating to the leasing ofthe equipment and tothe provision of.

..services.” Id. Your predecessor in office signed the contract in his capacity as district attorney. See id. This office generally does not construe acontract because of the fact issues that normally accompany contract interpretation. See Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at4 (stating that interpreting contract isbeyond this office’s purview); DM-3 83 (1996) at2 (same); DM- 192 (1992) at 10 (same). But in this case we conclude that the contract is void as amatter of law. The district attorney had no authority to enter into acontract requiring the expenditure of county funds. This contract was signed by the district attorney, not by or on behalf of the county commissioners court. See id. Furthermore, we understand that the lease payments were made from county funds allocated to the district attorney’s office under section 41.107 of the Government Code.3 Under section 41.107, acounty commissioners court may “furnish

. . . supplies[] and

. . . other items and equipment that are necessary to carry out the official duties of the prosecuting attorney’s office and may pay the expenses incident to the operation of the office.” TEX.GOV’T CODE ANN. 841.107(a) (Vernon 1988); see also Telephone Conversation II, supra note 3. Unless another county official is vested by law with the authority to enter into a contract that binds the county, only the county commissioners court may do so. SeeAnderson, 152 S.W.2d at 1085; Tex. Att’y Gen. Op. Nos. JC-0364 (2001) at 11,JC-0214 (2000) at7. Acounty cornmissioners court may not delegate its power to contract without statutory authority to do so. See Tex. Att’y Gen. Op. No. JC-0100 (1999) at 2. Neither section 41.107 nor any other law applicable to district attorneys specially authorizes a district attorney to contractually bind expenditures of county funds under section 41.107. See TEX.GOV’TCODE ANN.541.107(a) (Vernon 1988); see also TEX.CONST.art. V, 821 (indicating that district attorney has only those powers that legislature has delegated); TEX.

3Telephone Conversation with Honorable Sky Sudderth, 35th Judicial District Attorney (May 21, 2001) [hereinafter Telephone Conversation II]..

The Honorable Sky Sudderth - Page 3 (JC-0395)

GOV'TCODEANN. $8 43.121(d)(V emon Supp. 2001) (indicating that Thirty-fifth Judicial District Attorney’s specific duties are same as Brown County Attorney’s duties); 45.125 (Vernon 1988) (reserving statute forBrown County Attorney); cJ:TEX. CODEGRIM.

PROC. ANN.art. 59.06(b), (c)(l), (d) (Vernon Supp. 2001) (creating forfeiture fund over which prosecutor has sole control); id. art. 102.007 (creating hot-check fund over which prosecutor has sole control); TEX.GOV'TCODE ANN. $846.002(l), .004(a) (Vemon Supp. 2001) (directing deposit of state money for prosecutor’s use). Nor does any statute authorize a commissioners court to delegate to the district attorney the commissioners court’s power to bind, by contract, expenditures from county funds allocated to the prosecutor’s office. CJ: TEX.Lot. GOV'T CODE ANN. $5 262.001, .Oll, .0115 (Vernon 1999) (permitting county to delegate contracting authority in certain circumstances).
In addition, as an instrument that purports to bind the county, the contract creates adebt in violation ofarticle XI, section 7ofthe Texas Constitution. Under article XI, section 7,acounty may not incur debt for any purpose “in any manner” unless the county simultaneously creates the debt and provides for levying and collecting “a sufficient tax to pay the interest thereon and provide at least two per cent
. . .as a sinking fund.” TEX.CONST.art. XI, 87; cJ:id. art. XI, 85 (prohibiting municipality to create “debt”). With respect to the postal-meter system lease at issue here, the county has not provided for levying and collecting taxes to pay the interest and to create a sinking fund. See TEX.CONST.art.XI, 97. Acounty that enters amultiyear contract without simultaneously providing for levying and collecting designated taxes has created adebt unless the contract gives the county a right to terminate it at the end of each year. See City ofBonham, 871 S.W.2d at 768. Because this formulaic, multiyear postal-meter system lease contract does not provide the county aright to terminate the agreement atthe end ofeach year orprovide for levying and collecting atax to pay the interest and to create a sinking fund, as article XI, section 7 of the Texas Constitution requires, it is unconstitutional and invalid as amatter of law.The Honorable Sky Sudderth - Page 4 (JC-0395)

SUMMARY
A district attorney may not enter into amultiyear contract for office equipment that requires the expenditure of county funds and that does not permit the county to terminate the contract atthe end of each year. Only a county commissioners court may execute a contract that binds the county. Additionally, amultiyear contract that does not either provide for levying and collecting a tax to pay the interest and to create asinking fund orpermit the county toterminate the contract atthe end ofeach year violates article XI, section 7ofthe Texas Constitution.

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General NANCY FULLER Deputy Attorney General - General Counsel SUSAN D. GUSKY Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee