             THE    ATTORNEY    GENERAL
                       OF TEXAS


                       September 18, 1989



Honorable Elizabeth C. Jandt    Opinion   No. JR-1095
Guadalupe County Attorney
105-A North Austin              Re: Validity of contract for
Seguin, Texas 78155             library services (RQ-1647)

Dear Ms. Jandt:

     You have asked several questions about a 1964 contract
for library services executed by both the City of Seguin
(the city) and Guadalupe County (the county) as parties,  as
well as by the Board of Trustees of the Seguin and Guadalupe
County Library (the board).

     The contract, YOU advise, recites that the county
theretofore established the board to supervise the erection
of a library building and to manage the library to be housed
there. By the terms of the agreement, the board agreed to
render free library service for all Guadalupe County under
the authority of article  1694, V.T.C.S. The provisions   of
that statute are now embodied in section 323.011 of the
Local Government  Code, a nonsubstantive   revision  of the
former law. &g Acts 1987, 70th Leg., ch. 149, at 1129.

     For its part, the city agreed, among other things,     to
the erection of the building on city-controlled and city-
maintained property,  and promised to relinquish       to the
board, as necessary, control of the grounds (which the city
would continue to maintain nevertheless).   According to the
agreement, you explain, the board was to be appointed by the
commissioners court of the county "with the consent and
approval" of the city council.   The board was to regularly
furnish the city and county with financial statements      and
submit budgets  for their approval.     The city and county
expressed   an intention to undertake     certain    financial
obligations to support the board's operations.

     In 1975, we understand,  certain "by-laws" proposed by
the board were adopted by both the city and the county as
"amendments to the contract," altering, among other things,
the manner in which board members were selected.   In 1988,
however, the commissioners court of the county voted to




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rescind the "by-law" amendments.   The city has not joined
the county in that action, nor has the board agreed to it.

     You ask, first, about the validity       of the    1964
agreement: second, about the validity of the 1975 *'by-law@*
amendments to the agreement; third, about the effect upon
the arrangement  of the 1971 enactment of the Interlocal
Cooperation Act; and, finally, about the effect of the 1988
rescission vote by the county commissioners.1   We need not
address your first question about the original validity   of
the 1964 agreement because we have concluded that the 1975
adoption of the @'by-lawl* amendments to the       agreement
amounted to ratification of an arrangement sanctioned by the
Interlocal Cooperation  Act in 1975, whether    or not the
arrangment was sanctioned by law prior to the enactment   of
that statute.

     The City of Seguin has been a home-rule      city since
1971. Home-rule cities have general authority to include in
their charters any power so long as it is not inconsistent
with the constitution     or general laws enacted by the
legislature.  Tex . Const. art. XI, 5 5; Local Gov't Code ch.
9; Forwood v. Citv of Tavlor, 214 S.W.2d 282 (Tex. 1948).
The powers of counties are not so far-reaching and are often
said to depend on authorization   by the constitution or the
legislature.  See 35 D. Brooks, County and Special District
Law !j5.11 at 151 (Texas Practice 1989).

     In 1968 the Texas Constitution was      amended   to   add
article III, section 64(b), reading:

           (b) The county government, or any polit-
        ical subdivision(s)  comprising  or located
        therein, may contract one with another  for



     1. Our response to your request     is based upon the
above-cited allegations of fact reported to us. It should
not be construed as a confirmation of their accuracy.   The
attorney general   does not determine fact disputes in the
opinion process.    Our conclusions  are not based on an
independent   examination   of  the   contract   and  other
instruments supplied with your request. We have made no
independent   legal analysis of their effect but      have,
instead,   for purposes   of this opinion, accepted    your
representation of the facts surrounding     them and their
intended legal consequences.




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        the performance      of governmental     functions
        required or authorized by this Constitution
        or the Laws of this State, under such terms
        and conditions       as the      Legislature   may
        prescribe.     No person acting under a contract
        made pursuant to this Subsection (b) shall be
        deemed to hold more than one office of honor,
        trust or profit or more than one civil office
        of     emolument.      The    term   "governmental
        functions,1' as it         relates to    counties,
        includes      all    duties,     activities    and
        operations of statewide       importance in which
        the county acts for the State, as well as of
        local      importance,     whether   required   or
        authorized by this Constitution or the Laws
        of this State.2

And in 1971, the      legislature     enacted   the   Interlocal
Cooperation Act, specifying that

           Any local government may contract or agree
        with one or more local governments to perform
        governmental  functions and services under
        terms of this Act.

V.T.C.S. art. 4413(32c),  § 4(a).    Library      services were
expressly  included in the definition     of       "governmental
functions and services." Id. § 3(2).

     Thus, at the time the 1975 *@by-law*@amendments to the
contract were adopted, both the city and the          county
possessed full authority to contract with each other for
the establishment and operation of a public library, whether
or not they possessed it before that time. The provisions
of the Interlocal Cooperation  Act were made "cumulative  of
all other laws or parts of laws, general or special."    Id.
§ 7.




       2. Some confusion exists as to whether subsection    (b)
originally applied to all counties or only to those counties
(Tarrant, El Paso) to which subsection (a) applied, but the
matter   was mooted in 1970 when subsection (a) was amended to
apply to all counties. -1         Braden, The Constitution   of
the State of Texas: An Annotated and Comparative     Analysis,
at 294 (1977).




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     If we assume that the contract between the city and the
county was unenforceable and void at the time it was made in
1964 because one or the other   (or both) of them was acting
ultra vires,   still, counties and cities may ratify a
contract which they might lawfully make at the time of such
ratification although they had no such power when the
contract was executed.      See 56 Am. Jur. 2d Municiual
Coruoration , C nties. and Other Political       Subdivisions
5 509 at 56: (lzyl) ; 14 Tex. Jur. 3d Contracts § 144 at 243.

     In Jcutzschbach v. Williamson   County  118 S.W.2d   930
(Tex. Civ. App. - Austin    1938, writ disA#d)    the commis-
sioners court, without a written contract      Lr     written
request from the owner of the land, entered an o:der that
certain terracing work be done although a statute permitted
such county work only "after request in writing by the owner
of the land."   (There was, instead, merely an oral agreement
struck by the land owner and one of the commissioners.)
Thus, the contract was ultra vires, but when the land owner
refused to pay for the work, the commissioners          court
instituted suit, which,   according to the appellate   court,
amounted to a ratification    of the contract, rendering   it
valid. See also Williams v. Pure Oil co., 78 S.W.2d       929
(Tex. 1935); Mobile Electric Co. v. Citv of Mobile, 79 So.
39 (Ala. 1918).

     In our opinion, by adopting the "by-law" amendments  to
the 1964 agreement    in 1975, after the passage     of the
Interlocal Cooperation Act permitted such contracts to be
legally made, the county and the city confirmed and ratified
their arrangement, as modified by the "by-law" amendments,
curing any ultra vires defect that might have caused the
original agreement to be unenforceable.

     We do not pass upon the particulars      of the 1975
"by-lawsl' amendments. We merely advise that it was within
the power of the city and county in 1975 to revise their
pre-existing agreement  and, by doing so, to ratify and
validate the arrangement between them.

     On the basis of the information      furnished us, it
appears that the attempted unilateral    rescission  of the
agreement by the county commissioners    court in 1988 was
ineffective.  Assuming that the original 1964 contract was
invalid as ultra vires,     it was originally    subject to
disaffirmance at the election of the county. But after the
county elected in 1975 to affirm and ratify the agreement by
adopting the *'by-lawV1amendments thereto, the arrangement
was thereafter the subject of a binding contract that could




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not be cancelled  arbitrarily by the commissioners     court
alone. See 14 Tex. Jur. 3d Contracts §!j 322-328 at 546; 10
Tex. Jur. 3d Cancellation  and Reformation   of Instruments
§ 53 at 557.

                       SUMMARY

           It was within the power of the City of
        Seguin and the County of Guadalupe in 1975 to
        revise and    ratify a    pre-existing    1964
        agreement between them regarding       library
        services.   Even   if   the   original    1964
        agreement between them was originally invalid
        as ultra vires, ratification     in 1975 was
        effective because the Interlocal   Cooperation
        Act authorizing  such agreements had become
        law. After such ratification, the agreement
        was not subject to unilateral rescission   and
        cancellation by the county.




                                      JIM     MATTOX
                                      Attorney General of Texas

MARY KELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General




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