           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 con-
                                     tract 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 pertain-
          ing 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 Resolu-
          tion, the City of Big Spring has again
          approached this Board with a view of re-
          negotiating    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 present-
           ly empowered to renegotiate    the water con-
           tract 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 estab-
lishment 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 pur-
pose of this Act.             As noted in our previous      opinion
on this subject   (WW:6&), this power and authority       was trans-
ferred 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 sub-
ject contract:
                   “It Is our opinion,   however, that
            this is a valid and subsisting      contract
            and the Board has no right to and can-
            not 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 pro-
             vide by law for the compensation Of all
             officers,    servants, agents and public con-
             tractors,    not provided for in this Constl-
             tutlon,   but shall not grant extra compensa-
             tion to any officer,     agent, servant, or
             public contractors,     after suoh pub110 ser-
             vice 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,         lla-
             blllty   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 partlcu-
lar subject.     But neither resolution   nor statute may author-
ize 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.
            In Fihoads Drllllnn   Co. v. Allred,  123 Tex. 299, 70
S.W.2d 576 (19341, the Court, in considering       statutory provi-
sions 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 Con-
            stitution    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 constltutlon-
            al prohlbltlon    If It undertook to authorize the
            gratuitous   releasing    in whole or in part of an
            existing   indebtedness,     liability, or obllga-
            tion 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 obllga-
tion 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 re-
            negotiate 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                                Assistant

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
