Honorable C. R. Bennington, Chairmn of the Board Lower Colorado

River Authority Austin, Texas

Dear Mr. Pennington: Opinion No. O-2613

Re: Authority

of the Lower Colorado River Authorityto enter ipto c proposedcontract

with a lacorunion.

Your requestfor an opinionfrom this departtint is as follows:

"CeveceI~'.

members of the Board of Directors of the Lower Colorado River Iluthority

have :lvequested

me, as Chairnanof the Board, to address this cormrmnication to you:: There has been presented to the Board of Directors of the Authoritythe Question of whether the Authority

will enter into a contract with a laborunion organization known as the International Brotherfood

of Electrical

Workers. A copy of the contract which has been presented to'thdBoard of Directors of the Authorityfor consideration by the Board is attachedto this communication.

"Before

finallyacting upon such matter, the Board of Directors of the Authority

wdivld like to be advised

with'respect

to certain

questions,
as set out hereinbelow. As you know, the Lower Colorado River Authority is an agency of the State of Texas,hhving been created by the provisions of Chapter 7 of the GeneralLaws of the 43rd Iegislature of the State,jf Texas, at its Fourth CalledSession.

The questionsto

which answersare desir)ed are as follows:
"(1) a. Can the Lower Colorado River Authority,

and a'gency

of the State of Texas, legally enter into a contra'ct with a labor union?

b. If your answer is that the Authoritycan legallyenter into a contract with a laborunion,can it enter into a contract similarto the one submitted

herewith?
",(2) Under Article 3 of the proposedcontract, the Authority

agrees that any employee

may be member of the Union and shall remain in good standingin said Union."Hon. C. R. Pennington - Page 2 (o-2613)

The proposedcontract, copy of which accOmpenies your letterof inquiry, purportsto be one betweenLocalNo. 5ZU of the International Brotherhood of Electrical

Workers,and the Lower Colorado RiverAuthority,

and is perhaps the usual form for collective bargaining

by a union on behalf of $ its members. It dealswith hours,wages,yorking conditions, and kindred cluestions

affecting

employment

of the membersof the Union by the Authority.

We will not attemptto consider

the largerquestions of whether or not the Authoritycan in any event make a contract with the Union of the type here being considered,

or whether or not the Legislature could authorize

the making of such a contract, but we will consider the case whcLly from the standpoint

of.whether

or not under the statutecreating the Authority

the Board has the power to nmke such a contract.
The statutory

powers of the Board are broad, and aumngst them are, the following:
"(m). To appointofficers, agents and employees, to prescribe

their dutiesand to fix their compensation;
"(n). To make contracts and to execute instruments necessary

or convenient

to the exercise

of the powers,rights,privileges and functions

conferred

upon it by this Act." v(p). To do any and all other acts or thingsnecessary or convenient to the exercise

of the powers,rights, privileges

or functions

conferred upon it by this Act or any otherAct or 18w.v

It is familiarlaw that the grant of power to a corporation, eitherprivate
or public,to do specific things,

or for specific

purposes,

carries

with it by implication

the further

power to do any and all thingswhatsoever reasonably

necessary

to the accomplishement of the maJor purposes enumerated. Provisions (n) and (p)iwould be read into the powers, whether they had been expressly

a;IpuLated

or not. Such is the universal rule of construction of powers. '

It is the furtherrule, however, that "statutes

which prescribe

and limit to exercise

of official

duty are strictlyconstrued in respectof the power conferred,

and the manner of their exercise, and such powersare not to be enlarged

by construction."

-- 34 Tex. JUT. p* 443, 1 68,

Now, themarbers

of the Board of Bower Colorado River Authority

are public officers

of the State, and there is a specific provision

that they have the power (m) "to appointofficers, agents and employees, to prescribe

their duties and to fix their compensation." This being a vestiture of official powers in the Board as public officers, it follows that they may not delegate such power to any other person, nor may they enter into any contract with anotherperson that would or could abridgeor lessen in any way the exclusive power of the Board to perform the official duties 'Gus expressly entrusted to them. The Board may not enter intoa contract with another,

the effect of which would be in anywiseor to any extent to sharewith such other the exercise

of such official

duties.Hon. C. R. Pennington -P 3 (0-2613)

The provisions

of subdivisions

(n) and (p) above quoted, with respectto the latitude

of contract,

and other acts or thingsnecessary or convenient to the exercise

of the powers,rights,privileges of functions

conferred upon the Board cannotpossibly be construed

so as to destroy,

abrogate

or lessenthe expresspower and duty-provided in subdivision

(m) imposed exclusively

upon the Board "to appointofficers, agentsand employees, toprescribek'their

dutiesand to fix their compensation" for this would be destructive

of that exclusive

power and not in aid of its exercise.
Public officers

are required

at all times to hold themselves free to exercise

the59 official

discretion

with respectto mattersentrusted to them up to the time they are calledupon to act upon such matters, and any contract

or agreement

whatsoever,

which is calculated to destroyor interfere

with the free exercise of that discretion of officers

or boards in the performance

of their duties, is void as against publicpolicy. See 34 Tex. Jur. p. 454, 1 75.

"A contract

made by a public officer is againstpublicpolicyand void, if it interfemwith the unbiased discharge

of his duty to the public in the exercise of his office,ai if it placeshim in a position inconsistent

with hls duty to the public,or even if it has a tendency to induce

him to violate'such duty." -- 22 R. C. L. P. S. p. 460 1 121.

“All public officer: and officers

are creatures

of law. The powers and duties of public officers are definedand limited by law. Ry being definedand limited by law, we mean the acts of a public officer must be expressly

authorized

by law or implied

therefrom; It follows from the above that public officers may meke only such contracts for the goveethey represent as they are authorized by law to make." I- Fort Worth CavalryClub vs. Sheppard, 83 S. W. (2) 660.

We have nade a care&iistudy of the Act creating the Lower Colorado

River Authority,

and fllnd

nothing thereinthat couldbe construed, even under the most liberal

rules of construction, as authorizing

the Authorityto enter into a contract

of the type of that proposedin the present case.

"It is -11 settled&st no governmental agency can, by contract or otherwise,

suspendor surrender its functions,

nor can it legally enter into any contract which will embarrpss or control its legislative poweraand duties,or which amount to an abdication thereof,

Powers VS, City of Taylor (Tex.Corn. App.) @ S. W. (2) 520, and cases cited.

“To sustain such a contract as ia here claimed would be in the face of that well recognized rule and render impotent the administrative

control of the HighwayCommission with respectto the designation. location, relocation,

abandonment,

or discontinuance

of roads formingpart of the State highway system."-- Nairn vs. &an, 48 S. W. (2) 584.- *

Hon. C. R. Pennington - Page 4 (o-2613)

This principle

of lack of power of public officers has been applied in
numerouscases in situations where it was soughtto bind the officer eitherupon contract or some act or qonduct amounting

to estoppel

with respect to an officalact.,

maw vs. kwis, 86 s. w. (2) 741; 4$&ixi&r vp, Singleton, 50 S. W. (2) 893; Horn Company

vs. City of Dallas, 45 S. W. (2) 714; Industrial

Co. vs. Towins, 27, S. W. (2) 343; City of Dallasvs. S&awe, 12 S. W. (2) 1074; Chapman

vs. Rank, 297 S. W. 545; Austin,Commissioner, VS. O~~Zl.ee, 29@, 8. W. 613; Autin, Commissioner, Vq. Fleming,290 S. W. 835; State vs. Davison,280 s. W. 292; San Antonio,etc vs. Bell, 223 S. W. 506; Countyvs. Cossett, 213 S. W. 725; Thomson vs. Upshur County, 211s. W. 325; GraysonCountyvs. Harrell,202 S. W. 160; Lane vs. Schultz, 146 S. W. 1009; TarrantCountyvs. Rogers, I.25 S. W. 592; BurCk VS. Abbott, 9 S. W. 314;
Our decisionis put upon the groundthat the statutecreating the Lower Colorado

River Authority

nowhere confers

upon its Board the authority to make a contract

of the type of that under consideration, without

which statutory

authority

the Board is not authorized to make it.
Very truly yours

AITORNRIGZNEXALOFTRXAS
s/ Ocie Speer

BY Ocie Speer Assistant

APPROVED SEP. 9, 1940

GSRALTlC.MANN ATl'ORWRYORRRRALOFTFXAS THIS OPINIONCONSIDERED AND APPROVEDIN IJMlTEDCONFEXFXE