*.   .




                THEAAITBICNEYGENERAL
                        OF TEXAS


                            March 29, 1977




         The Honorable E. L. Short           Opinion No. H- 964
         Chairman
         House Committee on Intergovern-     Re: Whether article lOllm,
            mental Affairs                   section 8, V.T.C.S., violates
         P. 0. BOX 2910                      article 1, section 10 of
         Austin, Texas 78767                 the United States Constitu-
                                             tion.

         Dear Chairman Short:

              You have asked our opinion whether section 8 of article
         lOllm, V.T.C.S., violates article 1, section 10 of the United
         States Constitution.  Article 1Ollm provides for the creation
         of regional planning commissions in this State. Any two or
         more general purpose governmental units may create a regional
         planning commission to make studies and plans to guide the
         development of the area. Recommendations of the commission
         may be adopted in whole or in part by the respective governing
         bodies of the cooperating governmental units. V.T.C.S. art.
         lOllm, §S 3, 4. Section 8 of article 1Ollm provides:

                     With advance approval of the governor,
                  a Commission in a region or area contiguous
                  to areas in the Republic of Mexico may
                  expend the funds available under the pro-
                  visions of Section 6 of this Act in cooperation
                  with agencies of the Republic of Mexico or
                  its constituent states or local governments
                  for planning studies encompassing areas lying
                  both in this state and in contiguous territory
                  of the Republic of Mexico.
         You ask if this provision conflicts with article 1, section
         10 of the United States Constitution, which provides in
         pertinent part:

                      No State shall enter into any Treaty,
                   Alliance, or Confederation . . . .



                                  p. 4017
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The Honorable E. L. Short - page 2.    (H-964)



             .   .   .   .

             No State shall, without the Consent of
          Congress . . . enter into any Agreement
          or Compact with another State, or with a
          foreign Power . . . .

     Although the terms "Treaty, Alliance, or Confederation"
and "Agreement or Compact" are nowhere defined in the Consti-
tution, their meanings have long been understood.

          LT]he terms used, "treaty, alliance, or
          confederation" . . . apply to treaties of
          a political character: such as treaties of
          alliance for purposes of peace and war: and
          treaties of confederation, in which the
          parties are leagued for mutual government,
          political co-operation, and the exercise of
          political sovereignty; and treaties of cession
          of sovereignty, or conferring internal political
          jurisdiction, or external political dependence,
          or general commercial privileges.  The latter
          clause, "compacts and agreements," might then
          very properly apply to such as regarded what
          might be deemed mere private rights of sovereignty;
          such as questions of boundary; interests in land
          situate in the territory of each other: and other
          internal regulations for the mutual comfort and
          convenience of States bordering on each other.

2 J. Story, Commentaries on the Constitution of the United
States 9 1403 at 264 (4th ed. 1873); Virginia -
                                              v. Tennessee,
148 U.S. 503, 519 (18931.
     Section 8 of article 1Ollm clearly does not authorize
the creation of any "Treaty, Alliance, or Confederation"
within the meaning of the Constitution.  Whether that sec-
tion authorizes an "Agreement or Compact" requiring the
consent of Congress depends upon whether it permits

          the formation of any combination tending to the
          increase of political power in the States, which
          may encroach upon or interfere with the just
          supremacy of the United States.




                             P. 4018
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        The Honorable E. L. Short, Page 3.    (H-964)



        Virginia v. Tennessee, supra at 519; New Hampshire v. Maine,
        42fi U.S.  x3.  369 (19761;
                                                             --
                                    Unite! States Steel Corporation v.
        Multistate Tax Commission, 417 E . SUPP. 795 (S.D.N.Y. 1976x
        (3 iudae ct.). urob. iuris. noted, 45 U.S.L.W. 3570 (Feb.
        22,~A19?7) (No: 76-6357; McHenry County -L
                                                 v Brady, 163 N.W.
        540   (N.D. 1917).

             We do not believe that the "cooperation" between a
        regional planning commission and agencies, states or local
        governments of the Republic of Mexico authorized by section
        8 of article 1Ollm constitutes an agreement or compact
        within the meaning of the Constitution.  Regional planning
        commissions are not authorized to enter into any binding
        agreements with officials of the Republic of Mexico. The
        purpose of the commission's "cooperation" with Mexican
        officials is to assist in "planning studies encompassing
        areas lying both in this state and in contiguous territory
        of the Republic of Mexico."  The commission has no authority
        to bind its members as to the implementation of any such
        plans. The plans and recommendations of the commission and
        officials of the Republic of Mexico are merely preparatory
        to any action that might be taken either unilaterally or
        pursuant to an agreement or compact.

                  The legislative declaration will take the
                  form of an agreement or compact when it
                  recites some consideration for it from the
                  other party affected by it . . . . The
                  mutual declarations may then be reasonably
                  treated as made upon mutual considerations.
                  The compact or agreement will then be within
                  the prohibition of the Constitution or without
                  it, according . . . [to whether it] may lead or
                  not to the increase of the political power or
                  influence of the States affected, and thus
                  encroach or not upon the full and free exercise
                  of Federal authority.

        Virginia v.
                 - Tennessee, supra at 520.
             It is our opinion, therefore, that the cooperation
        authorized by section 8 of article 1Ollm between a regional
        planning commission and agencies, states and local qovern-
        ments of the Republic of Mexico does not empower a planning
        commission to enter into any treaty, alliance, confederation,
        agreement or compact with any level of the government of the
        Republic of Mexico. Consequently, article 1Ollm does not
        contravene article 1, section 10 of the United States Con-
        stitution.



                                  P. 4019
                                                             .   .




The Honorable E. L. Short, page 4. (H-964)


                    SUMMARY
         Section 8 of article lOllm, V.T.C.S..,does not
         authorize any treaty, alliance, confederation,
         agreement or compact between a regional planning
         commission and a foreign government and does not,
         therefore, violate article 1, section 10 of the
         United States Constitution.




                                Attorney General of Texas




C. ROBERT HEATH, Chairman
Opinion Committee
lfd




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