                                      The Attorney             General of Texas
                                                          October       12, 1984
JIM MAlTOX
Attorney Gener@


supreme Court Building
                                     Eonorable J. W. Joknsoa,        Jr.                 Opinion No.        JIG209
P. 0. BOX 1254a                      Sutton County Attor,rey
Austin. TX. 78711.2y8                P. 0. Box 1687                                      Re: City-county   agreement con-
51214752501                          Sonora, Texas   76550                               cerning volunteer  firemen
Telex. 9101874.1367
Telecopier  51214750288
                                     Dear Hr. Johnson:

714 JaCksOn, Suite 700                    Tour letter    rwuestlng         an opinion     from this     office    advises:
Dalias. TX. 752024506
21u742.9.944
                                               Sutton Crmty Commissioners Court in conjunction
                                               with     the! Sonora City            Council     entered        Into     a
4824 Nbdll.      AW..    Suit0 160             contractwl           agreement         to     contribute         and/or
El Paso. TX. 79905.2793                        compensatt!       the city        of    Sonora for        electrical
915/533.y&(                                    services       provided       to     thirteen      (13)    voluntary
                                               firemen.        Sutton County is to pay one-half                   (l/2)
    1 Texas, Suite 7W
                                               of the volunteer          firemen’s       accumulated electrical
 “oustcm. TX. 77002.3111                       bills    on 8~ quarterly basis,            and the city of Sonora
 713122MW6                                     is to pu:’ one-half            (l/2)      of the utility         bills.
                                               The city        of Sonora has been sending quarterly
                                               statemenu        to the comissioners            court for payment
 806 Sro~dway, Suite 312
 LubWck.    TX. 794012479
                                               of one-half         (l/2)    of the electrical           bill.        The
 aixv747.5238                                  county is withholding              payment of the electrical
                                               billings      until     such time as an attorney                general
                                               opinion      j.s rendered on the legalities                    of this
 4309 74. Tenth. Suite S
                                               contractual       arrangement.
 McAllen. TX. 78501.1885
 5lz1682-4547
                                     Sutton County has a population    of 5,130 according to the most recent
                                     United    States   Ct~rsus and a property     valuation  of  more than
 200 Main      PIUa.    Suite 400    $100,000.000.    Sorwra~is a city within the county.
 ?m   Antonio.     TX. 782052797
 51212254191
                                           We have not heen provided         a copy of the agreement,      and our
                                     discussion   is necessarily    couched in general terms.   Generally,    it is
  An Equal Oppwtunityl               not unlawful for ik county such as Sutton County to contract          with an
  Affirmative Action Employer        incorporated    city   lying vithin   its borders to have fire    protection
                                     furnished    by the city     to county areas outside     the .municipality.
                                     V.T.C.S. arts.     2351a-1,  2351b-1; Ector County v. City of Odessa, 492
                                     S.W.Zd 360 (Tex. .Ziv. App. - El Paso 1973. no writ).               See also
                                     Attorney General Opinion H-279 (1974).

                                           However, article       XI,      sections 5 and 7 of the Texas Constitution
                                     provide that no debt         for      any purpose shall ever be incurred in any




                                                                             p. 944
Ronorable    J. U. Johnson,      Jr.   a. Page 2   (JN-209)




 manner by any city or county unless provision     Is made, nt the time the
 debt is created,  for levying and collecting    a tax to pay the Interest
 thereon and to provide a sinking fund for ita retirement.         Within the
 meaning of these provisions,    a “debt” includes    any pecuniary obliga-
 tion imposed by contract   ex,z?pT. such aa was, both at the time of the
 agreement and within the%rful        and reasonable   contemplation   of the
.parties,  to be satisfied  out of current revenues for the year or out
 of some fund then within the, immediate control of the county.       McNelll
 v. City of Waco, 33 S.W. 322, 324 (Tex. 1695).

      According to the inforwtion          supplied us, the county auditor does
not have the power to limit r:he county’s pecuniary liahillty              under the
agreement, since the count]’ is bound thereby to pay for one-half                  of
all   the electricity       the firemen choose to utilize,            whatever that
amount might be.           See Attorney        General     Opinion  O-4140   (1941).
Moreover. it appears that the obligation             extends not merely for a one-
year period but for the duration of a long-term agreement.                 Thus, the
county apparently undertook a matter related to its ordinary expenses
that might not be paid cut of current                   revenues.   So far as the
information      provided    us dlsclores,      the county failed       to create    a
sinking fund or to provide          an appropriate      means to collect   money for
such a fund.       Under those c,ircumstances,        the creation  of the debt was
constitutionally       impermissible.      City of Wichita Falls v. Kemp Public
Libtary,    593 S.W.2d 834, 83:’ (Tex. Cfv. App. - Fort Worth 1980, writ
ref d n.r.e.).         The fact     that the extent        of county liability     Is
contingent     upon the use of electricity          by the firemen does not make
the obligation       any less I “debt.”          irot& v. Jefferson      County, 406
S.W.2d 185, 188 (Tex. 1966) ; T. & N.O.R.R. Co. v. Galveston County,
 169 S.W.2d 713, 715 (Tex. 1943).

        In view of our conclwion              above, it is unnecessary            to consider
 the applicability        of article     1113, V.T.C.S.       (no free service if system
 encumbered), or vhether an .rgreement to furnish unlimited electricity
 for    the private         use of volunteer          firemen      constitutes      “monetary
 remuneration”        vithin    the neaning of sections             1 and 25 of article
 6243e.3,    V.T.C.S.      (Voluntew     Fire Fighters Relief and Retirement Fund)
 [cf.   V.T.C.S. art. 6701h. IL, subd. 14; Tax Code S152.001(11)                      (“no or
 nominal compensation”) 1, or a violation                 of article    III. section 52(a)
 of the Texas Constitution             prohibiting       the grant of public money or
 thing of value           by a county         to any individual,           association,     or
 corporation,       vhatsoever.      he generally          V.T.C.S. art. 1069; Willis v.
 Potts,    377 S.W.Zd 622, 626-(Tex.            1964) (“lucrative       office”);    Casualty
 Undervriters       v. Whitman, 1.3’3 S.W.2d 261, 262 (Tex. 1940) (remuneration
 as advantage measurable in aoney); Irwin v. State, 177 S.W.2d 970. 973
  (Tex. Crf.m. App. 1944) (“pr:unfary            profit,     gain or advantage”);       Haynes
 v. Henderson. 345 S.W.2d f57, 861 (Tex. Civ. App. - Austin 1961. writ
  ref’d   n.r.e.)      (“money” fle:rible      term. may Include real and personal
  property);      Flower v. Dart, 260 S.W.Zd 685, 688 (Tex. Civ. App. - Fort
 Worth 1953, writ ref’d n.r.e.)              (“money” means wealth in comprehensive




                                            p. 945
Ronorable   J. W. Johnson,    Jr.   - Page 3    (JM-209)




sense) ; Attorney    General Opinions H-1122 (1978) (retirement         program
for   volunteer    firemen);     8-665   (1975)   (emol-ts      for    volunteer
fireman).     Cf. Tex. Const. srt.      III,  151-d (survivors'    assistance);
V.T.C..S. arr6228f      (payments of assistance);      art. 6243e. $53. 5, 6,
7. 8. 9, 10 (firemen's       rclLl?f and retirement   fund); Attorney General
Opinion M-358 (1969).

                                    SUMMARY

                An agreement to pay the cost of electi.icity
            furnished volunteer firemen for their private use.
            which agreement makes Sutton County pecuniarily
            liable    for an uncertain   amount not within   the
            power of the cour.ty to limit,   is invalid where no
            provision    for a sinking fund to retire   the debt
            has been made.




                                               JIM     MATTOX
                                               Attorney General of Texas

 TOMGREEN
 First Assistant   Attorney    Gf,teral

 DAVID R. RICHARDS
 Executive Assistant Attornq        General

 Prepared by Bruce Youngbloclc.
 Assistant Attorney General

 APPROVED:
 OPINION COEfMITTEE

 Rick Gilpin.   Chairman
 David Brooks
 Colin Carl
 Susan Garrison
 Jim Moellinger
 Nancy Sutton
 Bruce Youngblood




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