Hon. John H. Miller             Opinion HO. v-1181
District Attorney
36th Judicial District          Re:   Validity of the submit-
Sinton, Texas                         ted contract between
                                      McMulletiCounty and Mc-
                                      Mullen County Water
                                      Control and Improvement
                                      District No. 1 for water
                                      for the courthouse and
Dear Mr. Miller:                      jail.
         Your request for an opinion presents the following
factual situation:
        In 1949 the Commissioners' Court of
    McMullen County authorized the construc-
    tion of a water well on the courthouse
    g;;un;s at a cost of approximately $25,-
             The well was paid for with war-
    rants Ad refunded with bonds bearing 4$
    Interest, being a county-wide obligation.
    In May, 1950, the McMullen County Water
    Control and Improvement District was formed
    embracing approximately 160 acres of land
    which Included the unincorporated town of
    Tilden, the county seat. In August, 1950,
    the ConunisslonersfCourt of McMullen COWI-
    ty entered into a contract with 'the Water
    Control and Improvement District relinqulsh-
    lng control of the water well for a period
    of forty years. By the terms of this con-
    tract, the Water Control and Improvement
    District was to pay the county a nominal
    cash consideration annually as well as fur-
    nishing the county palatable water for the
    courthouse and jail. The supply of water
    exceeds that needed for the courthouse and
    jail and a number of residents of Tllden
    have connected pipes to the well and, with
    the permission of the commissioners’ court,
    have been using the water.
Hon. John H. Miller, page 2 (v-1181)


         Question: Did the Commissioners' Court
     of McMullen County have the authority to en-
     ter into this type of contract with the Water
     Control and Improvement District, and If so,
     is such contract a valid and binding obliga-
     tion of McMullen County?
         This office, following the decisions of the Tex-
as courts, has repeatedly held that the commissioners' court
is a court of limited jurisdiction and has only such powers
as are conferred upon it, either by express terms or by nec-
essary implication by the statutes and Constitution of this
State. Childress County v. State, 127 Tex. 343, 92~S.W. 2d
1011 (1936); Von Rosenberg v. Lovett, 173 S.W. 508 (Tex.Civ.
App. 1915, error ref.); Roper v. Hall, 280 S.W. 289 (Tex.
Civ. App. 1926); 11 Tex. Jur. 632, Counties, Sec. 95; 20 C.J.
S. 1006, Counties, Sec. 174.
        Section 20 of Article 2351, V.C.S., provides:
        "The Commissioners Court of each coun-
    ty of this State, in addition to the powers
    already conferred on It by law, is authorized
    and empowered in all cases where such county
    has acquired a water supply from subterranean
    waters for county purposes, to sell, contract
    to sell and deliver any or all of such water
    which is not needed for county purposes to
    any public or municipal corporation, or poli-
    tical subdivision of this State, including
    any water control and improvement district,
    or fresh water supply district now created
    and existing, or which may hereaft~r be creat-
    ed under the laws of this State; ag.
                                       y such wa-
    ter sold or contracted to be sold and delivered
    to any such public or municipal corporation or
    political subdivision of this State, may be
    used or re-sold for any lawful purpose; and
    said Commissioners Court shall have the right
    to fix and determine the rate or rates at
    which such water shall be sold to any such
    public or municipal corporation or political
    subdivision of this State, and to enter in-
    to contracts to sell and supply such water
    at such determined rate or rates for any term
    of years not exceeding forty (40); and all
    monies received by the county from the sale
    of such water shall be placed to the credit
.

    Hon. John H. Miller, page 3 (v-1181)


         of the General Fund of the county and may be
         expended for general county purposes as now
         or hereafter permitted by law.
             In El Paso County v. Elsm, 106 S.W.2d 393, 395
    (Tex.Clv.App. 1937), the court said:
                 the commissioners court is a creature
         oh the Constitution, and its powers are limited
         by the Constitution and the laws passed by the
         Legislature, and must have authority of law for
         the contract, and when the authority is given,
         a reasonable construction of It will be given
         to effect Its purpose. The matter of constructing
         drainage ditches in the county Is, unquestionably,
         county business, and the commissioners' court is
         the only active governing body of the county, with
         a jurisdiction conferred upon it by law to do that
         work, and should be given a broad and liberal con-
         struction so as not to defeat the purpose of the
         law. The commissioners' court has Implied author-
         ity to do what may be necessary,,inthe exercise of
         the duties conferred upon them.
             In Broussard v. Wilson, 183 S.W. 814,   819 (Tex.
    Civ.App. lgli;),the court said:
             "Whether or not said contract was an im-
         provident contract, disadvantageous to the
         county and advantageous to Hanson Sons, In-
         corporated, in the absence of proof of actual
         fraud, 1s not a question for this court to de-
         termine. The Legislature has seen proper to
         confer upon the commissioners' court the power
         and authority to make contracts for the repair-
         ing and construction of roads within its county,
         and, so long as said courts make contracts within
         the restrictions of the Constitution and under
         the authority of law, it is not for the courts
         to substitute their judgment for that of the
         commissioners' court as to the wisdom of such
         contracts."
             Specific authorization is contained In Article
    2351 for a comtnissioners'.courtto sell, contract to sell
Hon. John H. Miller, page 4 (~-1181)


and deliver any or all of such water which is not needed
for county purposes to a water control and improvement
district. It Is our opinion that your factual situation
comes within the purview of Section 20 of Article 2351.
          You are therefore advised that in our opinion the
Commissioners Court of McMullen County was authorized to
enter into the contract in question with the McMullen Coun-
ty Water Control end Improvement District No. 1, and the con-
tract is a valid and binding obligation of McMullen County.
                          SUMMARY
         The Commisaioners~ Court of McMullen
    County is authorized to contract with the
    McMullen County Water Control and Improve-
    ment District No. 1 to sell and supply water
    from a water well on the courthouse grounds
    to the district in return for e sufficient
    quantity of palatable water to satisfy coun-
    ty purposes and e nominal cash consideration,
    the remainder of such water to be used by the
    district for any lawful purpose. Art. 2351,
    Sec. 20, V.C.S.
APPROVED:                                Yours very truly,
J. C. Davis, Jr.                           PRICE.DANIEL
County Affairs Division                  Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
Charles D. Mathews                        Burnell Waldrep
First Assistant                                 Assistant
                                                                .
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