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# THEAAITBICNEYGENERAL OF TEXAS

March 29, 1977

The Honorable E. L. Short Chairman Opinion No. H-964
House Committee on Intergovern- Re: Whether article lOllm, mental Affairs section 8,V.T.C.S., violates P. 0. BOX 2910 article 1, section 10 of Austin, Texas 78767 theUnited States Constitution.
Dear Chairman Short: You have asked our opinion whether section 8of article lOllm, V.T.C.S., violates article 1, section 10 of the United States Constitution. Article 1Ollm provides for the creation of regional planning commissions in this State. Any two or more general purpose governmental units may create a regional planning commission tomake studies and plans toguide the development of the area. Recommendations of the commission may be adopted inwhole or inpart by the respective governing bodies of the cooperating governmental units. V.T.C.S. art. lOllm, §S 3, 4. Section 8of article 1Ollm provides:

With advance approval of the governor, a Commission in a region or area contiguous to areas in the Republic ofMexico may expend the funds available under theprovisions of Section 6of thisAct in cooperation with agencies of the Republic ofMexico or its constituent states or local governments forplanning studies encompassing areas lying both in this state and in contiguous territory of the Republic of Mexico. You ask if this provision conflicts with article 1, section 10 of the United States Constitution, which provides in pertinent part:

No State shall enter into any Treaty, Alliance, or Confederation
. . . .

p. 4017- .

The Honorable E. L. Short -page 2. (H-964)

. . . . No State shall, without the Consent of Congress
. . .enter into any Agreement or Compact with another State, orwith a foreign Power . . . . Although the terms "Treaty, Alliance, or Confederation" and "Agreement or Compact" are nowhere defined in the Constitution, their meanings have long been understood.

LT]heterms used, "treaty, alliance, or confederation"
. . .apply to treaties of apolitical character: such as treaties of alliance for purposes of peace and war: and treaties of confederation, inwhich the parties are leagued formutual government, political co-operation, and the exercise of political sovereignty; and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges. The latter clause, "compacts and agreements," might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty; such as questions of boundary; interests in land situate in the territory of each other: and other internal regulations for themutual comfort and convenience of States bordering on each other. 2J. Story, Commentaries on the Constitution of the United States 9 1403 at 264 (4thed. 1873); Virginia v. Tennessee, - 148 U.S. 503, 519 (18931. Section 8of article 1Ollm clearly does not authorize the creation of any "Treaty, Alliance, or Confederation" within themeaning of the Constitution. Whether that section authorizes an "Agreement or Compact" requiring the consent of Congress depends upon whether it permits

the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.

P. 4018. .

The Honorable E. L. Short, Page 3. (H-964)

Virginia v. Tennessee, supra at 519;New Hampshire v. Maine, 42fi U.S. x3. 369 (19761; -- Unite! States Steel Corporation v. Multistate Tax Commission, 417 E

.SUPP. 795 (S.D.N.Y. 1976x (3iudae ct.). urob. iuris. noted, 45U.S.L.W. 3570 (Feb. 22,~A19?7) (No:76-6357; McHenry County v Brady, 163N.W. -L 540 (N.D. 1917).
We do not believe that the "cooperation" between a regional planning commission and agencies, states or local governments of the Republic of Mexico authorized by section 8of article 1Ollm constitutes an agreement or compact within themeaning of the Constitution. Regional planning commissions are not authorized to enter into any binding agreements with officials of the Republic of Mexico. The purpose of the commission's "cooperation" with Mexican officials is to assist in "planning studies encompassing areas lying both in this state and in contiguous territory of the Republic of Mexico." The commission has no authority to bind itsmembers as to the implementation of any such plans. The plans and recommendations of the commission and officials of the Republic of Mexico are merely preparatory to any action thatmight be taken either unilaterally or pursuant to an agreement or compact.

The legislative declaration will take the form of an agreement or compact when it recites some consideration for it from the other party affected by it
. . . . The mutual declarations may then be reasonably treated asmade upon mutual considerations. The compact or agreement will then be within the prohibition of the Constitution or without it, according
. . .[towhether it]may lead or not to the increase of the political power or influence of the States affected, and thus encroach or not upon the full and free exercise of Federal authority. Virginia v. Tennessee, supra at 520.

- It is our opinion, therefore, that the cooperation authorized by section 8of article 1Ollm between a regional planning commission and agencies, states and local qovernments of the Republic of Mexico does not empower a planning commission to enter into any treaty, alliance, confederation, agreement or compact with any level of the government of the Republic of Mexico. Consequently, article 1Ollm does not contravene article 1, section 10 of theUnited States Constitution.

P. 4019. .



### TheHonorableE.L. Short,page 4. (H-964)

SUMMARY Section 8ofarticlelOllm,V.T.C.S.., doesnot authorizeanytreaty,alliance,confederation, agreementor compactbetweenaregionalplanning commissionanda foreigngovernmentanddoesnot, therefore,violatearticle1,section10ofthe UnitedStatesConstitution.

AttorneyGeneralofTexas

C.ROBERTHEATH,Chairman OpinionCommittee lfd

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