Could Sutton County agree to pay half of volunteer firefighters' private electricity bills without limiting the amount or creating a sinking fund?

Texas AG Opinion JM-209: Volunteer Firefighter Utility Bills

Plain-English summary

Sutton County and the City of Sonora had agreed to split the electricity bills of thirteen volunteer firefighters. The county was to pay half of the accumulated bills quarterly, but withheld payment while seeking an Attorney General opinion on the arrangement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

JM-209 said a county generally could contract with a city within its borders for fire protection in unincorporated county areas. The problem was not the general city-county fire-protection relationship. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

The constitutional problem arose because the agreement made the county responsible for half of however much electricity the firefighters chose to use. The county auditor could not limit the county's total liability, and the obligation appeared to continue for a long term rather than a single year. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Under article XI, sections 5 and 7, the opinion treated that unlimited contractual obligation as county debt. It concluded the debt was constitutionally impermissible because the county had not created a sinking fund or another appropriate means to collect money for one. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

JM-209 did not decide whether free utility service conflicted with article 1113, counted as remuneration under the volunteer-firefighter retirement law, or violated article III, section 52(a)'s public-grant restriction. Its debt holding made those issues unnecessary to reach. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was any city-county fire-protection agreement unlawful?

No. JM-209 said it generally was lawful for a county such as Sutton County to contract with a city inside the county to furnish fire protection outside the municipality. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Why was this electricity-payment agreement invalid?

The county promised to pay half of an uncertain amount that it could not limit, and the obligation appeared to extend beyond one year. The opinion treated that promise as debt for which no sinking fund or collection mechanism had been provided. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Did the amount depend on how much electricity the firefighters used?

Yes, but that contingency did not keep the obligation from being debt. JM-209 said the county remained contractually bound for half of the electricity used, whatever the amount. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Did JM-209 decide whether paying private utility bills was a grant of public money?

No. The opinion expressly found it unnecessary to decide the article III, section 52(a) issue after concluding that the agreement created impermissible debt. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Did the Attorney General review the actual contract?

No. JM-209 said the office had not received a copy of the agreement and therefore discussed the issue only in general terms based on the supplied facts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Background and statutory framework

The request described Sutton County as paying one-half of each quarterly electricity statement sent by Sonora for thirteen volunteer firefighters. It also stated that Sonora was a city within the county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

JM-209 cited articles 2351a-1 and 2351b-1, along with Ector County v. City of Odessa, for the general authority to arrange city fire protection for county areas outside the city. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

The debt analysis used the rule quoted from McNeill v. City of Waco: a contractual pecuniary obligation counted as debt unless the parties reasonably contemplated payment from current-year revenue or a fund already under the county's immediate control. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Citations and references

• Article XI, sections 5 and 7 of the Texas Constitution supplied the debt and sinking-fund requirements applied in JM-209. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf
• McNeill v. City of Waco, 33 S.W. 322, 324 (Tex. 1895), supplied the definition of debt used by the opinion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf
• City of Wichita Falls v. Kemp Public Library, 593 S.W.2d 834, 837 (Tex. Civ. App. - Fort Worth 1980, writ ref'd n.r.e.), appeared in the sinking-fund analysis. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf
• Brown v. Jefferson County, 406 S.W.2d 185, 188 (Tex. 1966), and T. & N.O.R.R. Co. v. Galveston County, 169 S.W.2d 713, 715 (Tex. 1943), appeared for the point that contingent liability could still be debt. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0209
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0209.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

October 12, 1984

Honorable J. W. Johnson, Jr.
Sutton County Attorney
P. O. Box 1687
Sonora, Texas 76950

Opinion No. JM-209

Re: City-county agreement concerning volunteer firemen

Dear Mr. Johnson:

Your letter requesting an opinion from this office advises:

Sutton County Commissioners Court in conjunction with the Sonora City Council entered into a contractual agreement to contribute and/or compensate the city of Sonora for electrical services provided to thirteen (13) voluntary firemen. Sutton County is to pay one-half (1/2) of the volunteer firemen's accumulated electrical bills on a quarterly basis, and the city of Sonora is to pay one-half (1/2) of the utility bills. The city of Sonora has been sending quarterly statements to the commissioners court for payment of one-half (1/2) of the electrical bill. The county is withholding payment of the electrical billings until such time as an attorney general opinion is rendered on the legalities of this contractual arrangement.

Sutton County has a population of 5,130 according to the most recent United States Census and a property valuation of more than $100,000,000. Sonora is a city within the county.

We have not been provided a copy of the agreement, and our discussion is necessarily couched in general terms. Generally, it is not unlawful for a county such as Sutton County to contract with an incorporated city lying within 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.2d 360 (Tex. Civ. 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 manner by any city or county unless provision is made, at the time the debt is created, for levying and collecting a tax to pay the interest thereon and to provide a sinking fund for its retirement. Within the meaning of these provisions, a "debt" includes any pecuniary obligation imposed by contract except such as was, both at the time of the agreement and within the lawful 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. McNeill v. City of Waco, 33 S.W. 322, 324 (Tex. 1895).

According to the information supplied us, the county auditor does not have the power to limit the county's pecuniary liability under the agreement, since the county 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 out of current revenues. So far as the information provided us discloses, the county failed to create a sinking fund or to provide an appropriate means to collect money for such a fund. Under those circumstances, the creation of the debt was constitutionally impermissible. City of Wichita Falls v. Kemp Public Library, 593 S.W.2d 834, 837 (Tex. Civ. 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 a "debt." Brown 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 conclusion above, it is unnecessary to consider the applicability of article 1113, V.T.C.S. (no free service if system encumbered), or whether an agreement to furnish unlimited electricity for the private use of volunteer firemen constitutes "monetary remuneration" within the meaning of sections 1 and 25 of article 6243e.3, V.T.C.S. (Volunteer Fire Fighters Relief and Retirement Fund), 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, whatsoever.

SUMMARY

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

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

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