### THE A?~SORNEY GESERUU OF TEAxAS

Honorable RaymondW.Vowel1 Executive Director Board for Texas State Hospitals andSpecial Schools Box S- Capitol Station Austin, Texas Opinion NO.~~-1081 Re: Questions relating to contract between State Board of Control andCity 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. Ourquestion was subsequently answered byyou in Opinion No. 

### w-689 dated August 17, 1459. "Presumably, as the result of said opinion there wasenacted during the 57th Legislature H.C.R. 20by Read, acopy 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 aview of renegotiating our present water contract; however, certain questions have arisen relative to our authority to sorenegotiate. "It would be appreciated If you would give this matter further consideration and advise whether or not this Board is presently empoweredto renegotiate the water contract with the City of Big Spring.'Honorable RaymondW.Vowell, page 2 

### (~~-1081)

Theoriginal 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 wasprovided that, of Control

. . . shall have the power and*a%orlty to do andperform all things ntcessary for carrying out the purpose of this Act. As noted in our previous opinion on this subject (WW:6&), this power andauthority wastransferred to the Board for Texas State Hospitals and~Specla1 Schools by Article 3174b, Vernon’s Civil Statutes.

This prior opinion also madethe following statement with reference to the Board’s right to renegotiate the subject contract:

“It Is our opinion, however, that

this is avalid and subsisting contract andthe Board has no right to andcannot terminate said contract **OD** Pennegotiate said contract solong as the State of Texas L??,. qavuLf%lth. maIntiE anIlQQlzmkesUlEt Big Spring State Htspltal at the City **Of** Big Spring, Texas. Weare 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 madeto the City of Big Spring, when the state Is to receive nonew, adequate consideration, would violate Sections 44 and

### 55 of Article III of the Constitution of Texas, quoted In part below:

“Sec. 

### 44. ‘IheLegislature shall provide by law for the compensation Ofall officers, servants, agents andpublic contractors, not provided for in this Constltutlon, but shall not grant extra compensation to anyofficer, 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. TheLegislature 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 orHonorable RaymondW.Vowell, page 3 (~~-1081.)

individual, to this State or to anycounty or deflned subdivision thereof, or other municipal corporation therein, except delinquent taxes which have been due for aperiod of at least ten years." As amendedNov. 8, 1932. It Is well settled that a resolution does not have the force andeffect of a statute, but is rather an expression of the Legislative opinion or will with regard to apartlcular subject. But neither resolution nor statute mayauthorize action by anyagency or officer of the state that Is prohibited by the Constitution.

In Delta Counts v. ack rn 100Tex. 51 93S.W. 419 (1906), the action of the Com%ssl~e&' Court in rgduclng the rate of interest that anote given to the Countyby a purchaser of land wasto bear for the remainder of time until payment washeld to be a release to the purchaser of an obligation to the Countywhich wasforbidden by Section 55 of Article III of the Constitution of Texas.

S.W.2d 576In FihoadsDrllllnn Co. v. Allred, 123Tex. 299, 70

(19341, the Court, in considering statutory provisions authorizing the State Board of Mineral Development to modify or revise existing oil andgas 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 55of Article II$ or any of them, prohibit the Legislature from authorizing the diminishing or reducing, for aconsideration, of anexecutory obligation to the state In an existing contract. Or the question maybe said to be whether the Legislature has the authority in view of these sections of the Constitution, to authorize the amendmentor modification of anexisting contract with the state, for aconsideration." In upholding the constitutionality of the statute, the Court madethe following statements: “Since none of the sections of the Constitution which have been cited forbids, either in terms or by necessary or reasonable- _

Honorable RaymondW.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. andsince 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, 109Tex. 6, 160 S.W. 955. It authorizes the board to revise existing contracts, but it contemplates andprovides that the revision be accomplished by supplemental contract, meaning, of course, avalid contract su ed bs aconsideration. (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 Countyv. Blackburn, 100Tex. 51, 93 S.W. 419, 420; Judkins v. Roblson, 109Tex. 6, 160 S.W. 955' Greene v. Robison, 177 Tex. 516, 8 S.W. (2d) 655; Empire Gas&Fuel Co. v. State, 121Tex. 138, 47 S.W. (2d) 265." Under the facts presented, It does not appear that the parties contemplate an assumption by the City of anyobllgation beyond that which it Is presently bound to perform. In the event the parties reach anagreement affording anewand adequate consideration to the State, they then mayrenegotiate the contract. SUMMARY

TheBoard for Texas State Hospitals and Special Schools Is not empoweredto renegotiate its water contract with the City of Big Spring unless such renegotiation affords somenewand adequate consideration to the State.Honorable RaymondW.Vowell, page 5 (~~-1081)

Yours very truly, WILLWILSON Attorney General of Texas

DDM:lgh APPROVED: OPINIONCOMMITTEE w. V. Geppert, Chairman L. P. Lollar William E. Allen RaymondV. Loftln, Jr. Houghten Brownlee, Jr. REVIEWRDFORATTORN!3YGENRR~ BY: MorganNesbitt Assistant