Untitled Texas Attorney General Opinion ( 1969 )

Honorable Charles H. Jungmlchel Opinion No. M-357
Chairman, House Committee on
Urban Affairs Re: Constltutlonallt of
State Capitol Building House Bill No. 18 4,
Austin, Texas 61st Legislature
Dear Mr. Jungmlchel:
By recent letter you have requested an opinion
concerning the constitutionality of House Bill No. 184,
which relates to membership of cities in municipal organl-
zations. We quote from.the pertinent provisions of House
Bill No. 184 as follows:
"Section 1. DEFINITIONS. In this Act,
unless, the context requires a different
definition,
(1) 'city' means any incorporated city,
town, or village In the State of Texas; and
(2) lmunlclpal organlzatlon~ means any
group organized to promote cooperation among
cities in handling municipal affairs.
Sec. 2. AUTHORITY TO JOIN MUNICIPAL
ORQANIZATIONS. Any city may join any munlcl-
pal organization by adopting a resolution
which states the name of the organization
which the city 1s joining and the purpose
for which the city Is joining the organiza-
tion. The city may also pay any necessary
membership dues.
Sec. 3. WITHDRAWING MEMBERSHIP. Any
city which joins a municipal Organi,ZatiOn
under the provisions of this Act may wlth-
draw from membership in the organization
on a majority vote of the members of the
governi.;gydy of the city.
. . LIMITATION OF POWER. Mem-
bership in any municipal organization
shall not limit the powers of the city. . .'
The only constitutional question which appears to
be raised is found in Section 2 where the cities are author-
-1763-
,
Hon. Charles H. Jungmlchel, page 2'
1zedto"pay any necessary membership dues". In regard to
thla question, you are referred to Section 51 and 52 of
Article III, and Section 3 of Article XI of the Texas
Constitution.
Section 51 of Article III, Vernon's Texas Constl-
tutlon, is quoted, in part, as follows:
"The Legislature shall have no power
to make any grant or authorize the making
of any grant of public moneys to any lndl-
vldual, association of individuals, munl-
clpal 0: other corporation whatsoever;
. . . .
Section 52'of Article III, Vernon's Texas Constl-
tutlcn,ls quoted, in part, as follows:
"The Legislature shall have no power
to authorize any county, city, town or
other political corporation or subdivision
of the State to lend its credit or to grant
public money or thing of value'ln aid of, or
to any lndlvldual, association or corporation
whatsoever, or to become a stockholder in
such co$poratlon, association or company;
. . . .
Section 3 of Article XI, Vernon's Texas Constltu-
tlcn,ls quoted as follows:
"No county, city, or other municipal
corporation shall hereafter become a sub-
scriber to the capital of any private
corporation or association, or make any
appropriation or donation to the same, or
in anywise loan its credit; but this shall
not be construed to in any way affect any
obligation heretofore undertaken pursuant
to law."
Insofar as Section 3 of Article XI is concerned,
the Supreme Court of Texas in the case of Barrln ton vs.
Coklnos, 161 Tex. 136, 338 S.W.2d 133 (196&the
-- 0 state
constitutional test to be utilized when anplying Section
3 of Article XI to a particular authorization or expendl-
ture of public funds.
-1764-
Hon. Charles H. Jungmlchel, page 3
The court atated at page 140:
"Under the Constitution of 1869 and a
statute enacted by the Legislature in 1871,
the counties and munlclpalltles of Texas
were authorized to ald such construction by
taking stock in and making loans or donations
to railroad companies. The primary purpose
of Article XI, Section 3, Is to deprive these
political subdivisions of that power. It does
not prohibit all business dealings with prl-
vate corporations and associations, but munl-
clpal funds or credit may not be used simply
to obtain for the community and its citizens
the general benefits resulting from the
operation of such an enterprise. On the
other hand an expenditure for the direct
accomplishment of a legitimate public and
municipal purpose is not rendered unlawful
by the fact that a privately owned business
may be benefited thereby."
In regard to Sections 51 and 52 of Article III.
Vernon's Texas Constitution, the-supreme Court in Brazes-
Ri;;;&T;o$ty v. Carr, 405 S.W.2d 689, (Tex.Sutim)
e reasoning found in Barrington v. Coklnos,
supra, and cited ,numerous cases dealing with them-
tutlonal provlslona involved in this request, and you are
referred to the discussion on pages 693 and 694 therein.
An analysis of the above quoted cases leads to
the conclusion that an authorized expenditure of public
funds 1s constitutionally sound where the expenditure in
question is for a legitimate public and municipal purpose.
The issue, whether the expenditures authorized
for membership dues to the organizations defined by H. B.
184 constitute a public and municipal purpose, is lnitlal-
ly a legislative function.
"It would not be.of value now to attempt
to thoroughly define or discuss what are public
purposes. No exact definitioncan be made.
Suffice it to say that, unless a court can say
the purposes for which public funds are expend-
ed are clearly not public purposes, it would not
be justlfled in holding Invalid a legislative
act or provision in a city charter providing
-1765-
Hon. Charles H. Jungmlchel, page 4
funds for such purposes." Davis v. Clt
123 Tex. 39, 67 md 103e
?%3?&4,.
We cannot say that the purposes for which the
cities are being authorized to expend money by House Bill
184 are not public purposes. On the contrary, in the
light of previous acts of the Legislature, i.e. Articles
1OllL and 1Ollm. Vernon's Civil Statutes, authorizing
joint municipal planning and cooperation, it is our opln-
ion that the authorized expenditure in House Bill 184
would be for a public purpose.
This very question has been considered in other
jurisdictions and it has been held that it is a public
purpose for cities to belong to an organization of cities,
as is the payment of dues thereto and the sending of its
officials to the conventions held by such an organization.
City ofposevllle v. Tulley, 131 Pa. 2d 395 (Cal. ;
of Kalamazoo, 25 N.W.2d 787 (Mlch.Sup.
hlte, 194 Pa.2d 435 (Ariz.Sup. 1948); State
a erman,v.E.2d a35 (Ohio 1951); 169 A.L.R. T;TIB;
kP---
Baaed upon the above discussions, and our analy-
sis of the bill in question, it 1s our opinion that the bill
in question is constitutional.
SUMMARY
House Bill No. 184, 61st Leglslature is
constitu:lonal and does not violate Sections
51 and 32 of Article III or Section 3 of
Article XI of the Texas Constitution.
Vex$ truly yours,
rney Qeneral of Texas
Prepared by James C. McCoy
Assistant Attorney General
-1766-
Hon Charles H. Jungmlchel, page 5
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Joseph H. Sharpley
Lenny Zwlener
Bill Craig
James Quick
W. V. GEPPERT
Staff Legal Assistant
- 1767 -