JIM MAlTOX 

Attorney Gener@ 

supreme Court Building 

P. 0. BOX 1254a 

Austin. TX. 78711.2y8 

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An Equal Oppwtunityl 

Affirmative Action Employer 

The Attorney General of Texas 

October 12, 1984 

Eonorable J. W. Joknsoa, Jr. 

Sutton County Attor,rey 

P. 0. Box 1687 

Sonora, Texas 76550 

Opinion No. JIG209 

Re: City-county agreement 

cerning volunteer firemen 

Dear Hr. Johnson: 

Tour letter rwuestlng an opinion from this office advises: 

Sutton Crmty Commissioners Court in conjunction 

with the! Sonora City Council entered Into a 

contractwl agreement to contribute and/or 

compensatt! the city of Sonora for electrical 

services provided to thirteen (13) voluntary 

firemen. Sutton County is to pay one-half (l/2) 

of the volunteer firemen’s accumulated electrical 

bills on 8~ quarterly basis, and the city of Sonora 

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 

of one-half (l/2) of the electrical bill. The 

county is withholding payment of the electrical 

billings until such time as an attorney general 

opinion j.s rendered on the legalities of this 

contractual arrangement. 

conSutton County has a population of 5,130 according to the most recent 

United States Ct~rsus and a property valuation of more than 

$100,000.000. Sorwra~is a city within the county. 

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

discussion is necessarily couched in general terms. Generally, it is 

not unlawful for ik county such as Sutton County to contract with an 

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 obligation 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 oneyear 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 

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 

p. 946