JIMMAlTOX AttorneyGener@

supreme Court Building P.0. BOX1254a Austin. TX. 78711.2y8 51214752501 Telex. 9101874.1367 Telecopier 51214750288

714 JaCksOn, Suite 700 Dalias. TX. 752024506 21u742.9.944

4824 Nbdll. AW.. Suit0 160 El Paso. TX. 79905.2793 915/533.y&(

1Texas, Suite 7W “oustcm. TX. 77002.3111 713122MW6

806 Sro~dway, Suite 312 LubWck. TX. 794012479 aixv747.5238

4309 74.Tenth. Suite S McAllen. TX. 78501.1885 5lz1682-4547

200 Main PIUa. Suite 400 ?m Antonio. TX. 782052797 51212254191

An Equal Oppwtunityl Affirmative Action Employer 

# TheAttorney General ofTexas

October 12, 1984

Eonorable J. W.Joknsoa, Jr. Sutton CountyAttor,rey P. 0. Box 1687 Sonora, Texas 76550 Opinion No. JIG209

Re: City-county agreement cerning volunteer firemen

DearHr. Johnson:
Tour letter rwuestlng anopinion fromthis 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 on8~quarterly basis, andthe 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.
Wehave not heen provided a copy of the agreement, and our discussion is necessarily couched in general terms. Generally, it is not unlawful for ikcounty 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 Countyv. 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 and7of the Texas Constitution provide that no debt for any purpose shall ever be incurred in any

p. 944Ronorable J. U. Johnson, Jr. a.Page 2 (JN-209)

mannerby anycity or county unless provision Is made, nt the time the debt is created, for levying andcollecting a tax to pay the Interest thereon andto provide asinking fund for 

## ita retirement. Within the meaning of these provisions, a “debt” includes any pecuniary obligation imposed by contract ex,z?pT.such aawas, 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 somefund thenwithin the,immediate control of the county. McNelll
v. City of Waco, 33S.W. 322, 324 (Tex. 1695). According to the inforwtion supplied us, the county auditor does not have the power to limit r:hecounty’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 aoneyear period but for the duration of a long-term agreement. Thus, the county apparently undertook amatter 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 anappropriate means to collect moneyfor such afund. Underthose c,ircumstances, the creation of the debt was constitutionally impermissible. City of Wichita Falls v. KempPublic 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, 169S.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 andRetirement Fund) [cf. V.T.C.S. art. 6701h. IL, subd. 14; TaxCode S152.001(11) (“no or nominal compensation”) 1, or aviolation 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, 1.3’3S.W.2d 261, 262 (Tex. 1940) (remuneration
as advantage measurable in aoney); Irwin v. State, 177S.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. mayInclude real and personal property); Flower v. Dart, 260S.W.Zd 685, 688 (Tex. Civ. App. - Fort Worth 1953, writ ref ’d n.r.e.) (“money” meanswealth in comprehensive

p. 945Ronorable 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
TOMGREEN First Assistant Attorney Gf,teral
DAVIDR. RICHARDS Executive Assistant Attornq General Prepared byBruce Youngbloclc. Assistant Attorney General
APPROVED: OPINIONCOEfMITTEE
Rick Gilpin. Chairman David Brooks Colin Carl SusanGarrison JimMoellinger NancySutton Bruce Youngblood

p. 946