    OFFICE OF THE ATTORNEY GENER.AL . STATE OF TEXAS

    JOHN      CORNYN




                                                    July lo,2001



The Honorable Sky Sudderth                                 Opinion No. JC-0395
District Attorney
35th Judicial District                                    Re: Whether a district attorney may, by contract,
Brown County Courthouse                                   bind the use of county funds, and related question
Brownwood, Texas 76801                                    (RQ-0347-JC)


Dear Mr. Sudderth:

         Unless a particular county officer is specifically authorized to do so by law, only a county
commissioners court may enter a contract that binds the use of county funds. See Anderson v. Wood,
152 S.W.2d 1084, 1085 (Tex. 1941). Your predecessor in office leased a postal-meter system for
fifty-one months,* and you indicate that the lease payments are made from county funds.* With
fourteen months left on the lease, you wish to terminate the lease and stop making lease payments,
and you ask whether you are bound by this long-term lease. See Request Letter, note 1, at 1. You
are not bound by the lease; your predecessor in office had no authority to enter into a contract
purporting to bind the expenditure of county funds.

         Additionally, because the multiyear form contract your predecessor signed neither provides
for levying and collecting a tax to pay the interest and to create a sinking fund nor permits the county
to terminate the contract at the end of each year, it creates an unconstitutional debt. See TEX.CONST.
art. XI, 8 7; Contract attached to Request Letter, supva note 1, at 1. Under article XI, section 7 of
the Texas Constitution, a multiyear contract requiring expenditures of county funds that is not
accompanied by the levy and collection of designated taxes must allow the county to terminate the
contract at the end of each year. See TEX. CONST. art. XI, 5 7 (prohibiting county generally from
incurring debt); City ofBonham v. S. W. Sanitation, Inc., 871 S.W.2d 765,768 (Tex. App.-Texarkana
1994, writ denied) (defining “debt” and indicating that multiyear contract that provides right to
terminate at the end of each year does not create debt).

        Soon after you took office on January 1,2001, you discovered that your predecessor had
signed, in November 1997, a fifty-one month lease for a postal-meter system. See Request Letter,
supra note 1, at 1; Contract attached to Request Letter, supra note 1. Believing that the leased


           ‘Letter from Honorable Sky Sudderth, 35th Judicial District Attorney, to Honorable John Cornyn,        Texas
Attorney    General (Feb. 7, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

           2Telephone Conversation with Honorable    Sky Sudderth,   35th Judicial   District Attorney   (May 21, 2001)
[hereinafter Telephone Conversation I 1.
The Honorable    Sky Sudderth      - Page 2            (JC-0395)




equipment    exceeds your office’s needs, you sought to terminate the lease with fourteen months
remaining.    Request Letter, supra note 1, at 1. The lessor did not agree to the termination. See id.

         You accordingly   ask whether a long-term lease agreement that a                         previous elected
officeholder entered binds the current elected officeholder. Id. You appear to                   question whether,
solely because your predecessor signed the contract and you have subsequently                    replaced him, you
may terminate the agreement. We do not reach this question because we conclude                   the former district
attorney had no authority to enter into the contract.

         The contract at issue here warrants some description. It is a form contract between Pitney
Bowes Credit Corporation as lessor and “Lee Haney, District Attorney Brown County” as lessee.
Contract attached to Request Letter, supra note 1. It lists the equipment to be leased and includes
a checklist for items or services that are to be included in the lease payments. See id. In a fill-in-the-
blanks format, the contract states that the initial lease term is for “5 1” months, with lease payments
to be paid quarterly. Id. Finally, the lessee acknowledges the information contained in a pre-printed
paragraph, including that “[t]his form contains all applicable terms and conditions relating to the
leasing of the equipment and to the provision of. . . services.” Id. Your predecessor in office signed
the contract in his capacity as district attorney. See id.

          This office generally does not construe a contract because of the fact issues that normally
accompany contract interpretation. See Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that
interpreting contract is beyond this office’s purview); DM-3 83 (1996) at 2 (same); DM- 192 (1992)
at 10 (same). But in this case we conclude that the contract is void as a matter of law.

         The district attorney had no authority to enter into a contract requiring the expenditure of
county funds. This contract was signed by the district attorney, not by or on behalf of the county
commissioners court. See id. Furthermore, we understand that the lease payments were made from
county funds allocated to the district attorney’s office under section 41.107 of the Government
Code.3 Under section 41.107, a county commissioners court may “furnish . . . supplies[] and . . .
other items and equipment that are necessary to carry out the official duties of the prosecuting
attorney’s office and may pay the expenses incident to the operation of the office.” TEX. GOV’T
CODE ANN. 8 41.107(a) (Vernon 1988); see also Telephone Conversation II, supra note 3. Unless
another county official is vested by law with the authority to enter into a contract that binds the
county, only the county commissioners court may do so. See Anderson, 152 S.W.2d at 1085; Tex.
Att’y Gen. Op. Nos. JC-0364 (2001) at 11, JC-0214 (2000) at 7. A county cornmissioners court may
not delegate its power to contract without statutory authority to do so. See Tex. Att’y Gen. Op. No.
JC-0100 (1999) at 2. Neither section 41.107 nor any other law applicable to district attorneys
specially authorizes a district attorney to contractually bind expenditures of county funds under
section 41.107. See TEX. GOV’T CODE ANN. 5 41.107(a) (Vernon 1988); see also TEX. CONST. art.
V, 8 21 (indicating that district attorney has only those powers that legislature has delegated); TEX.


           3Telephone Conversation with Honorable   Sky Sudderth,   35th Judicial   District Attorney   (May 21, 2001)
[hereinafter Telephone Conversation II].
                                            .


The Honorable   Sky Sudderth    - Page 3           (JC-0395)




GOV'TCODEANN. $8 43.121(d)(V emon Supp. 2001) (indicating that Thirty-fifth Judicial District
Attorney’s specific duties are same as Brown County Attorney’s duties); 45.125 (Vernon 1988)
(reserving statute for Brown County Attorney); cJ: TEX.CODE GRIM.PROC.ANN. art. 59.06(b), (c)(l),
(d) (Vernon Supp. 2001) (creating forfeiture fund over which prosecutor has sole control); id. art.
102.007 (creating hot-check fund over which prosecutor has sole control); TEX. GOV'T CODE ANN.
$8 46.002(l), .004(a) (V emon Supp. 2001) (directing deposit of state money for prosecutor’s use).
Nor does any statute authorize a commissioners       court to delegate to the district attorney the
commissioners court’s power to bind, by contract, expenditures from county funds allocated to the
prosecutor’s office. CJ: TEX. Lot. GOV'T CODE ANN. $5 262.001, .Oll, .0115 (Vernon 1999)
(permitting county to delegate contracting authority in certain circumstances).

         In addition, as an instrument that purports to bind the county, the contract creates a debt in
violation of article XI, section 7 of the Texas Constitution. Under article XI, section 7, a county may
not incur debt for any purpose “in any manner” unless the county simultaneously creates the debt
and provides for levying and collecting “a sufficient tax to pay the interest thereon and provide at
least two per cent . . . as a sinking fund.” TEX. CONST. art. XI, 8 7; cJ: id. art. XI, 8 5 (prohibiting
municipality to create “debt”). With respect to the postal-meter system lease at issue here, the
county has not provided for levying and collecting taxes to pay the interest and to create a sinking
fund. See TEX.CONST. art. XI, 9 7. A county that enters a multiyear contract without simultaneously
providing for levying and collecting designated taxes has created a debt unless the contract gives the
county a right to terminate it at the end of each year. See City of Bonham, 871 S.W.2d at 768.
Because this formulaic, multiyear postal-meter system lease contract does not provide the county
a right to terminate the agreement at the end of each year or provide for levying and collecting a tax
to pay the interest and to create a sinking fund, as article XI, section 7 of the Texas Constitution
requires, it is unconstitutional   and invalid as a matter of law.
The Honorable   Sky Sudderth     - Page 4          (JC-0395)




                                         SUMMARY

                         A district attorney may not enter into a multiyear contract for
                office equipment that requires the expenditure of county funds and
                that does not permit the county to terminate the contract at the end of
                each year. Only a county commissioners             court may execute a
                contract that binds the county. Additionally, a multiyear contract that
                does not either provide for levying and collecting a tax to pay the
                interest and to create a sinking fund or permit the county to terminate
                the contract at the end of each year violates article XI, section 7 of the
                Texas Constitution.




                                                Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
