HonorableC. R. Bennington,
Chairmn of the Board
Lower ColoradoRiver Authority
Austin, Texas

Dear Mr. Pennington:         OpinionNo. O-2613

                             Re: Authorityof the Lower Colorado
                                 River Authorityto enter ipto c
                                 proposedcontractwith a lacor union.

Your requestfor an opinionfrom this departtintis as follows:

    "CeveceI~'.
              members of the Board of Directorsof the Lower Colorado
     River Iluthority
                    have :lvequested me, as Chairnanof the Board, to
     address this cormrmnicationto you:: There has been presentedto the
    Board of Directorsof the Authoritythe Questionof whether the
    Authoritywill enter into a contractwith a laborunion organization
    known as the InternationalBrotherfoodof ElectricalWorkers. A
    copy of the contractwhich has been presentedto'thdBoard of Directors
    of the Authorityfor consideration  by the Board is attachedto this
    communication.

    "Beforefinallyacting upon such matter, the Board of Directorsof the
    Authoritywdivldlike to be advisedwith'respectto certainquestions,
    as set out hereinbelow. As you know, the Lower ColoradoRiver Authority
    is an agency of the State of Texas, hhving been createdby the provisions
    of Chapter7 of the GeneralLaws of the 43rd Iegislatureof the State,jf
    Texas, at its Fourth CalledSession.

    The questionstowhich answersare desir)ed
                                           are as follows:

    "(1) a. Can the Lower ColoradoRiver Authority,and a'gencyof the
    State of Texas, legallyenter into a contra'ct
                                                with a labor union?

    b. If your answer is that the Authoritycan legallyenter into a contract
    with a labor union,can it enter into a contractsimilarto the one
    submittedherewith?

    ",(2)Under Article 3 of the proposedcontract,the Authorityagrees
    that any employeemay be member of the Union and shall remain in good
    standingin said Union."
Hon. C. R. Pennington - Page 2   (o-2613)



The proposedcontract,copy of which accOmpeniesyour letterof inquiry,
purportsto be one betweenLocal No. 5ZU of the InternationalBrotherhood
of ElectricalWorkers,and the Lower ColoradoRiver Authority,and is
perhapsthe usual form for collectivebargainingby a union on behalf of $
its members. It deals with hours,wages, yorking conditions,and kindred
cluestions
         affectingemploymentof the membersof the Union by the Authority.

We will not attempttoconsiderthe largerquestionsof whether or not the
Authoritycan in any event make a contractwith the Union of the type here
being considered,or whether or not the Legislaturecould authorizethe
making of such a contract,but we will considerthe case whcLly from the
standpointof.whetheror not under the statutecreatingthe Authoritythe
Board has the power to nmke such a contract.

The statutorypowers of the Board are broad, and aumngstthem are,the
following:

     "(m). To appointofficers,agents and employees,to prescribetheir
     duties and to fix their compensation;

    "(n). To make contracts and to execute instrumentsnecessaryor
    convenientto the exerciseof the powers,rights,privilegesand
    functionsconferredupon it by this Act."

    v(p). To do any and all other acts or thingsnecessaryor convenient
    to the exerciseof the powers,rights,privilegesor functionsconferred
    upon it by this Act or any other Act or 18w.v

It is familiarlaw that the grant of power to a corporation,either private
or public,to do specificthings,or for specificpurposes,carrieswith
it by implicationthe furtherpower to do any and all thingswhatsoever
reasonablynecessaryto the accomplishement  of the maJor purposesenumerated.
Provisions(n) and (p)iwouldbe read into the powers,whether they had
been expresslya;IpuLatedor not. Such is the universalrule of construction
of powers. '

It is the furtherrule, however,that "statuteswhich prescribeand limit
to exerciseof officialduty are strictlyconstruedin respectof the power
conferred,and the manner of their exercise,and such powersare not to be
enlargedby construction." -- 34 Tex. JUT. p* 443, 1 68,

Now, themarbersof the Board of Bower ColoradoRiver Authorityare public
officersof the State, and there is a specificprovisionthat they have the
power (m) "to appointofficers,agents and employees,to prescribetheir
duties and to fix their compensation."This being a vestitureof official
powers in the Board as public officers,it followsthat they may not delegate
such power to any other person,nor may they enter into any contractwith
anotherperson that would or could abridgeor lessen in any way the exclusive
power of the Board to performthe officialduties 'Gus expresslyentrusted
to them. The Board may not enter intoa contractwith another,the effect
of which would be in anywiseor to any extent to share with such other the
exerciseof such officialduties.
Hon. C. R. Pennington -P 3 (0-2613)



The provisionsof subdivisions(n) and (p) above quoted,with respectto
the latitudeof contract,and other acts or thingsnecessaryor convenient
to the exerciseof the powers,rights,privilegesof functionsconferred
upon the Board cannot possiblybe construedso as to destroy,abrogateor
lessenthe expresspower and duty-providedin subdivision(m) imposed
exclusivelyupon the Board "to appointofficers,agentsand employees,
toprescribek'theirdutiesand to fix their compensation"for this would be
destructiveof that exclusivepower and not in aid of its exercise.

Public officersare requiredat all times to hold themselvesfree to
exercisethe59 officialdiscretionwith respectto mattersentrustedto
them up to the time they are called upon to act upon such matters,and any
contractor agreementwhatsoever,which is calculatedto destroyor
interferewith the free exerciseof that discretionof officersor boards
in the performanceof their duties, is void as againstpublic policy. See
34 Tex. Jur. p. 454, 1 75.

    "A contractmade by a public officer is againstpublic policyand
     void, if it interfemwith the unbiaseddischargeof his duty to the
     public in the exerciseof his office,ai if it places him in a position
    inconsistent with hls duty to the public,or even if it has a tendency
    to inducehim to violate'suchduty." -- 22 R. C. L. P. S. p. 460 1 121.

    “All public officer:and officersare creaturesof law. The powers
    and duties of public officersare definedand limitedby law. Ry
    being definedand limitedby law, we mean the acts of a public officer
    must be expresslyauthorizedby law or impliedtherefrom; It follows
    from the above that public officersmay meke only such contractsfor
    the goveethey     representas they are authorizedby law to make."
    I- Fort Worth CavalryClub vs. Sheppard,83 S. W. (2) 660.

We have nade a care&iistudy of the Act creatingthe Lower ColoradoRiver
Authority,and fllndnothing thereinthat could be construed,even under the
most liberalrules of construction, as authorizingthe Authorityto enter
into a contractof the type of that proposedin the present case.

     "It is -11 settled&st no governmentalagency can, by contractor
     otherwise,suspendor surrenderits functions,nor can it legally
     enter into any contract which will embarrpssor controlits legislative
     poweraand duties,or which amount to an abdicationthereof,PowersVS,
     City of Taylor (Tex.Corn.App.) @ S. W. (2) 520, and cases cited.

     “To sustain such a contract as ia here claimedwould be in the face of
     that well recognizedrule and render impotentthe administrative  control
     of the HighwayCommissionwith respectto the designation.location,
     relocation,abandonment,or discontinuance  of roads formingpart of
     the State highway system."-- Nairn vs. &an, 48 S. W. (2) 584.
                                                                          -   *


Hon. C. R. Pennington- Page 4   (o-2613)




This principleof lack of power of public officershas been applied in
numerouscases in situationswhere it was soughtto bind the officer
eitherupon contractor some act or qonductamountingto estoppelwith
respectto an officalact.,

    maw vs. kwis, 86 s. w. (2) 741;
    4$&ixi&r vp, Singleton,50 S. W. (2) 893;
    Horn Companyvs. City of Dallas, 45 S. W. (2) 714;
    IndustrialCo. vs. Towins, 27, S. W. (2) 343;
    City of Dallas vs. S&awe, 12 S. W. (2) 1074;
    Chapmanvs. Rank, 297 S. W. 545;
    Austin, Commissioner,VS. O~~Zl.ee, 29@, 8. W. 613;
    Autin, Commissioner, Vq. Fleming,290 S. W. 835;
    State vs. Davison,280 s. W. 292;
    San Antonio,etc vs. Bell, 223 S. W. 506;
    Countyvs. Cossett,213 S. W. 725;
    Thomson vs. Upshur County,211s. W. 325;
    GraysonCountyvs. Harrell,202 S. W. 160;
    Lane vs. Schultz,146 S. W. 1009;
    TarrantCounty vs. Rogers, I.25S. W. 592;
    BurCk VS. Abbott, 9 S. W.   314;




Our decisionis put upon the groundthat the statutecreatingthe Lower
ColoradoRiver Authoritynowhere confersupon its Board the authorityto
make a contractof the type of that under consideration,
                                                      withoutwhich
statutoryauthoritythe Board is not authorizedto make it.

                                             Very truly yours

                                       AITORNRIGZNEXALOFTRXAS

                                       s/ Ocie Speer



                                       BY
                                            Ocie Speer
                                             Assistant



APPROVED SEP. 9, 1940                       THIS OPINIONCONSIDEREDAND
                                            APPROVEDIN IJMlTEDCONFEXFXE
GSRALTlC.MANN
ATl'ORWRYORRRRALOFTFXAS
