THE A?~SORNEY GESERUU 

OF TEAxAS 

Honorable Raymond W. Vowel1 

Executive Director 

Board for Texas State Hospitals 

and Special Schools 

Box S - Capitol Station 

Austin, Texas Opinion NO. ~~-1081 

Re: Questions relating to contract between State Board 

of Control and City of Big 

Spring for supplying water 

Dear Mr. Vowell: to Big Spring State Hospital. 

Your request for an opinion reads as follows: 

"Under date of March 5, 1959, this 

office submitted to you a request pertaining to the validity of a water contract 

between this Board and the City of Big 

Spring for the supplying of water to the 

Big Spring State Hospital. Our question 

was subsequently answered by you in 

Opinion No. w-689 dated August 17, 1459. 

"Presumably, as the result of said 

opinion there was enacted during the 57th 

Legislature H.C.R. 20 by Read, a copy of 

which Is enclosed for your Information. 

As a result of the passage of this Resolution, the City of Big Spring has again 

approached this Board with a view of renegotiating our present water contract; 

however, certain questions have arisen 

relative to our authority to so renegotiate. 

"It would be appreciated If you would 

give this matter further consideration and 

advise whether or not this Board is presently empowered to renegotiate the water contract with the City of Big Spring.' 
Honorable Raymond W. Vowell, page 2 (~~-1081) 

The original authority to contraot for the hospital’s 

water supply Is found la the statute dlreoting t!e establishment of said hospital, Article 3185~4~ Verno;$ g’,;g 

Statutes, wherein It was provided that, 

of Control . . . shall have the power and*a%orlty to do 

and perform all things ntcessary for carrying out the purpose of this Act. As noted in our previous opinion 

on this subject (WW:6&), this power and authority was transferred to the Board for Texas State Hospitals and~Specla1 

Schools by Article 3174b, Vernon’s Civil Statutes. 

This prior opinion also made the following statement 

with reference to the Board’s right to renegotiate the subject contract: 

“It Is our opinion, however, that 

this is a valid and subsisting contract 

and the Board has no right to and cannot terminate said contract OD Pennegotiate 

said contract so long as the State of Texas 

L??,. qavuL f%lth. maIntiE anIl QQlzmkes UlEt 

Big Spring State Htspltal at the City Of 

Big Spring, Texas. 

We are of the opinion that the passage of H.C.R. 20 

does not authorize the Board to renegotiate the contract, 

under the facts stated, for the reason that an attempt to 

Increase the payments made to the City of Big Spring, when 

the state Is to receive no new, adequate consideration, 

would violate Sections 44 and 55 of Article III of the 

Constitution of Texas, quoted In part below: 

“Sec. 44. ‘Ihe Legislature shall provide by law for the compensation Of all 

officers, servants, agents and public contractors, not provided for in this Constltutlon, but shall not grant extra compensation to any officer, agent, servant, or 

public contractors, after suoh pub110 service shall have been performed or oontract 

entered it&t, for the performance of the 

same; . . . 

“Sec. 55. The Legislature shall have 

no power to release or extinguish, or to 

authorize the releasing or extinguishing, 

In whole or la part, the indebtedness, llablllty or obligation of any oorporatlon or 
Honorable Raymond W. Vowell, page 3 (~~-1081.) 

individual, to this State or to any county 

or deflned subdivision thereof, or other 

municipal corporation therein, except 

delinquent taxes which have been due for 

a period of at least ten years." As 

amended Nov. 8, 1932. 

It Is well settled that a resolution does not have the 

force and effect of a statute, but is rather an expression 

of the Legislative opinion or will with regard to a partlcular subject. But neither resolution nor statute may authorize action by any agency or officer of the state that Is 

prohibited by the Constitution. 

In Delta Counts v. ack rn 100 Tex. 51 93 S.W. 419 

(1906), the action of the Com%ssl~e&' Court in rgduclng 

the rate of interest that a note given to the County by a 

purchaser of land was to bear for the remainder of time until 

payment was held to be a release to the purchaser of an 

obligation to the County which was forbidden by Section 55 

of Article III of the Constitution of Texas. 

S.W.2d 576 

In Fihoads Drllllnn Co. v. Allred, 123 Tex. 299, 70 

(19341, the Court, in considering statutory provisions authorizing the State Board of Mineral Development to 

modify or revise existing oil and gas leases by reducing, 

within limitations, royalties payable to the State, presented 

the constitutional question posed as follows: 

'Ihe question presented Is whether these 

sections of the Constitution fiectlons 44, 

51, 53,and 55 of Article II$ or any of them, 

prohibit the Legislature from authorizing the 

diminishing or reducing, for a consideration, 

of an executory obligation to the state In an 

existing contract. Or the question may be 

said to be whether the Legislature has the 

authority in view of these sections of the 

Constitution, to authorize the amendment or 

modification of an existing contract with the 

state, for a consideration." 

In upholding the constitutionality of the statute, 

the Court made the following statements: 

“Since none of the sections of the Constitution which have been cited forbids, 

either in terms or by necessary or reasonable 
- _ 

Honorable Raymond W. Vowell, page 4 (~~-1081) 

Implication, the changing or modifying of 

contracts with the state so as to reduce for 

a consideration executory obligations to the 

state. and since the decisions which have 

been discussed construe these sections of the 

Constitution as forbidding gifts, gratuities, 

or bounties, or the gratuitous releasing or 

extinguishing of obligations, our opinion is 

that chapter 120 In its necessary effect and 

operation as determined from Its terms, Is 

not unconstitutional. Judklns v. Roblson, 

109 Tex. 6, 160 S.W. 955. It authorizes the 

board to revise existing contracts, but it 

contemplates and provides that the revision 

be accomplished by supplemental contract, 

meaning, of course, a valid contract su 

ed bs a consideration. (Emphasis added 3= 

'The act would be within the constltutlonal prohlbltlon If It undertook to authorize the 

gratuitous releasing in whole or in part of an 

existing indebtedness, liability, or obllgation to the state. Delta County v. Blackburn, 

100 Tex. 51, 93 S.W. 419, 420; Judkins v. 

Roblson, 109 Tex. 6, 160 S.W. 955' Greene v. 

Robison, 177 Tex. 516, 8 S.W. (2d) 655; 

Empire Gas & Fuel Co. v. State, 121 Tex. 

138, 47 S.W. (2d) 265." 

Under the facts presented, It does not appear that 

the parties contemplate an assumption by the City of any obllgation beyond that which it Is presently bound to perform. In 

the event the parties reach an agreement affording a new and 

adequate consideration to the State, they then may renegotiate 

the contract. 

SUMMARY 

The Board for Texas State Hospitals and 

Special Schools Is not empowered to renegotiate its water contract with the City 

of Big Spring unless such renegotiation 

affords some new and adequate consideration 

to the State. 
Honorable Raymond W. Vowell, page 5 (~~-1081) 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

DDM:lgh 

APPROVED: 

OPINION COMMITTEE 

w. V. Geppert, Chairman 

L. P. Lollar 

William E. Allen 

Raymond V. Loftln, Jr. 

Houghten Brownlee, Jr. 

REVIEWRDFORATTORN!3YGENRR~ 

BY: Morgan Nesbitt 

Assistant