*. .
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
- .
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
. .
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
p. 4020