Untitled Texas Attorney General Opinion

Grover Sellers

Mr. Charles H. Theobald Opinion Ho. O-7202
County Attorney Re: Authority of Galveston County
Galveston County to employ a representativeto ap-
Galveston, Texas pear before congressionalcommittees
for Federal aid for Galveston County
Dear Mr. Theobald: proposed improvements.
Your letter of April 3, 1946, addressed to Attorney
General Grover Sellers, requesting an opinion of this depart-
ment reiative to subject has been referred to the writer for
reply. You submitteda memorandumwith your request, a por-
tion of which is quoted as follows:
*. . .

“Will you please advise the answer to the follow-
ing questions?
“1. Whether the CommissionersCourt of Galveston
County is authorizedto employ a representativein
Washington to represent the county’s interests before
Federal Agencies in connectionwith one or all of the
following projects:
a. Securing for GalvestonCounty a seawall ex-
tension.
b. Securing Federal aid for the Texas City pro-
tective works.
c. Securing Federal aid for a new courthouseand
jail for Galveston County.
“2. Whether the CommissionersCourt of Galveston
County is authorized to employ the representativein
Washington at an annual salary to represent the County
of Galveston before various Federal agencies in connec-
tion with general legitimateprojects of said county
without limiting the employment to projects that are
now specificallyknown.
“The representative,if employed will appear be-
fore Congress or congressionalcommitteesand before
Mr. Charles H. Theobald, page 2

various Federal Agencies and will openly and publicly
represent the County of Galveston in the presentation
of data and informationin connectionwith various
projects of the County of Galveston. The said repre-
sentativewill not attempt to exercise his personal
influence but only present before the various agencies
in their official capacities the facts upon which the
County of Galveston relies in attempting to obtain
Federal Ald in connectionwith various projects. It
is contemplatedthat the said representativewill also
be employed for the same purposes insofar as the in-
terests of the City of Galveston are concerned and a
portion of his expenses will be paid by the City of
Galveston Chamber of Commer~e.~
,Article5, Section 18 of the Constitutionof the State
of Texas provides in part as follows:
”. l . .

"The County Commissionersso chosen with the
County Judge, as presiding officer, shal1 coapose the
County Commissioners'Court, which shall exercise such
powers and jurisdictionover all county business as
is conferred by this Constitutionand the laws o1 the
State, or as may be hereafter prescribed.*
In answering your first question,we believe that it is
necessary to first determine whether the pro eats listed in a,
B, and c above, constitute *county business4 as that tes;;igeused'
in the aiI
ove quotation from the Constitutionof Texas.
case of Glenn va Dallas County, Bois DtArc Island Levy District
275 S.W, 137 it was held that under the Constitutionproviding
that County ?!ommlssioners
1 Courts shall exercise such power and
jurisdictionover all county business as is conferred by the Con-
stitution and laws of the State "county business" should be given
broad and liberal constructionso as to extend powers to any and
all business of the county, and any other business of the county
connected with or interrelatedwith business of any other county
properly within jurisdictionof such courts under the Constitu-
tion and law.
In the case of Galveston County vs. Gresham 220 S.W.
560 it was held that the constructionof a seawall wIthin the
liD& s of a city for the protection of the lives and property of
the inhabitantsof the county is “county busines~‘~ within the
jurisdictionof the Commissioners 8 Court, under the provisions
of Vernon’s Annotated State Constitution
5 Sec. 18 and Vernon’s AnnotatedCivil Statutes,
Arte 6830.
Mr. Charles H. Theobald, page 3

In the case of West vs. Coos County, 237 Pacific 961,
115 Ore. 409, it was held that where a county contractedwith
plaintiff for services to be rendered to the county in attempt-
ing to secure from the United States a large sum of money,
equitably due the county, it was transacting “county business.”
The following cases have held that the building of a
county courthouse is “county business ‘Iwithin the meaning of
the Constitution. Kraus vs. Lehman, 83 N.E. 714 170 Ind. 408;
Macy v. Board of Commissionersof mama County, 83 N.E. 718
170 Ind. 707; Board of Commissionersof Newton County v. Stite
Ex Rel Bringham, 69 N.E. 442, 161 Ind. 616.
It is therefore the opinion of this department that
the projects mentioned in your memorandum constitute “county
businessn as that term is used in Art. 5 Sec. 18 of the Consti-
tution of Texas, and hence would be legai and legitimate proj-
ects for the Commissionerst Court of Galveston County to under-
takee
Having determined that these projects constitute
county business, we will now pass to the propositionof whether
or not GalvestonCounty has the authority to employ a represent-
ative in Washington to represent its interests before Federal
agencies in connectionwith such projects.
In the case of Gibson vs* Davis (Civ.,App.)236 S.W.
202, it was held that a contract in payment of attorney’s fees
by county commissioners1court, to get up bond records prepare
petitions for bond elections, arrange for printing bonK s9 ob-
tain approval thereof by the Attorney General, and to get opin-
ion of bond attorney as to the validity of bonds was not an in-
valid contract.
In the case of Roper v. Hall (C1v.App.J280 S.W. 289,
it was held that the authority of the commissioners1court to
make contracts in behalf of a county was limited to that confer-
red expressly or impliedly by the constitutionand statutes and
that the commissioners’court was impliedly authorized by such
constitutionand statutes to contract with an individualfor the
compilationof taxation data,
In the case of GalvestonCounty vse Gresham, supra, it
was held that Galveston County Commissioners’Court having broad
powers to construct a seawall, has authority to employ an attor-
ney to aid in carrying out that power by appearing before the
River and Harbors Committee of Congress to explain and urge its
approval of the proposed improvementand the grant of Fe&era1 aid
in the constructionthereof.
Hon. Charles H. Theobald, page 4

We believe it is unnecessary to cite further authority
on this proposition as it is our opinion that under the decisions
of this State a county has the authority to contract with an at-
torney or representativeto seaure for it any right that the coun-
ty may have under the law and to agree to pay a reasonable compen-
sation for such service. We therefore answer your first question
in the affirmative,d .
It is the desire of this office, however, in connection
with the affirmativeanswer given to the question above presented,
to point out the difference between a valid contract for profes-
sional services to appear in behalf of an individual,county or
other body to espouse its cause before governmentalagencies and
a “lobbying contract”which is void as against public policy and
denounced by Arts. 179-183, Vernon’s Penal Code of the State of
Texas.
The doctrine of our Texas courts is in entire accord
with the authoritiesgenerally throughoutthe country, elucidated
(3 Williston on Contracts, Art. 1727) thus:
“It has been said by the Supreme Court of the
United States, in regard to the presentationto Con-
gress of a claim against the United States: ‘We
entertain no doubt that in such cases, as under all
of the circumstances an agreement, express or im-
plied for purely prohessionalservices is valid.
Within this category are included drafting the peti-
tion to set forth the claim,’attending to the tak-
ing of testimony collectingfacts, prepaing argu-
ments, and submitting them orally or in writing, to
a committee or other proper authority, and other
services of like character. All of these things
are intended to reach only the reason of those sought
to be influenced. They rest on the same principle of
ethics as professionalservices rendered in a court
of justice, and are no more exceptionable.* On the
other hand, personal solicitationof individualmem-
bers is a method which cannot be made the subject of
contract.”
In 1 Cooley’s, ConstitutionalLimitations (8th Edi-
tion) page 280, in discussing this proposition,the following
is said:
“The law also seeks to cast its protection
around legislative sessions, and to shield them
against corrupt and improper influences,‘bymaking
void all contractswhich have for their object to
Hon. Charles H. Theobald, page 5

influence legislation in any other manner
than by such open and public presentationof facts,
arguments and appeals to reason as are recognized
as proper and legitimatewith all public bodies.
While counsel may be properly employed to present
the reasons in favor of any public measure, to the
body authorized to pass upon it, or to any of its
committeesempowered to collect facts and hear ar-
guments, and the parties interestedmay lawfully con-
tract to pay for this service yet to secretly ap-
proach the members of such a II
ody with a view to in-
fluence their action at a time and in a manner that
do not allow the presentationof opposite views, is
improper and unfair to the opposing interests;and
a contract to pay for this irregular and improper
service would not be enforced by the law.”
The following is quoted from the opinion of the Court
of Civil Appeals at Fort Worth in the case of Graves & Houtchens
vs. Diamond Hill IndependentSchool District reported in 243 S.
W e, p. 638:
“In the recent words of Williston on contracts,
Vol. 3, Sec. 1727, the author thus states the ruling:
“IAn agreement by a legislator to exercise his
judgment in a particularway is not binding law. His
promise, if without consideration,is not binding
for that reason, and if he bargains for considera-
tion it is illegal. A contract with one who is not
a legislator, to induce legislators to vote in a par-
ticular way, is open to similar objections if the
methods of inducing legislative action are improper.”
In the case of Davis vs. Texas Farm Bureau Cotton As-
sociation (Comtnbof App., Sec. B) 62 S.W.(2d) 90 which was a
suit on a contract to pay ariattorney to appear tl
efore the Texas
Legislature in behalf of a certain bill pending before it and
to-urge its passage, the Commission of Appeals-SectionB, speak-
ing through Justice Ryan, said:
“Whenever any,such paid or employed representa-
tive goes beyond the limitation of the statute (Art.
180, 181, Penal Code of Texas) and singles out indi-
vidual legislators,privately, and either by argu-
ment or otherwise endeavors to influence their action,
he transgressesthe law, however fair in intent he
may been
Further quoting from the opinion in the Davis case, su-
pra:
Mr. Charles H. Theobald, page 6

“The distinctionbetween valid and invalid con-
tracts, with paid or employed representativesto
further legislation appears to be that in the former
the services or the result thereof are used, or ae-
signed to be used openly and publicly, either before
the Legislatureitself or some committee thereof as
a body, while in the latter a person is employed to
exert his personal influence whether great or little,
with indiVidua1members, or to labor privately in any
form with them, out of the legislativehalls in favor
of or against any act or subject of legislation. Per-
sonal influence exerted over the individual members
of a Legislaturewill vitiate a contract, the consia-
eration of which is the procurementof legislative
.action. Such a contract should be held void though
there is no actual corruption in the particuiar case.
Although the contract may not expressly provide per-
sonal solicitation,it will be declared illegal if
it appears that in carrying out the contract it is
necessary to resort to ‘lobbying’;it is enough that
such is the tendency of the contract. 6 R.C.L. ‘733.”
The memorandum submittedwith your request for an
opinion presents the following facts:
“The representative,if employed will appear
before Congress or CongressionalColidttees and be-
fore various Federal ,Agenciesand will openly and
publicly represent the County of Galveston in the
presentationof data and informationin connection
with various projects of the county of Galveston.
The said representativewill not attempt to exercise
his personal influence but only present before the
various agencies in their official capacities the
facts upon which the County of Galveston relies in
attemptingto obtain Federal aid in connectionwith
various projects. It is contemplatedthat the said
representativewill also be employed for the same
purposes insofar as the interests of the City of
Galveston are concerned and a portion of his ex-
penses will be paid by the City of Galveston and the
Galveston Chamber of Commerce.‘I
A contract with an attorney or other representativeto
represent GalvestonCounty in the manner set out above would, in
the opinion of this department,be a valid contract for profes-
sional services but would remain such only so long as same was
carried out str1ctly in accordancewith the factual situation
above presented and in such a manner as not to infringe upon the
principles of law above discussed.
Mr. Charles H. Theobald, page 7

Passing to the second question presented in your memo-
randum, it is the opinion of this departmentthat since Galves-
ton County has the authority to employ a representativeto rep-
resent the County's interests before Federal Agencies in Washing-
ton with reference to specific projects coming within the defi-
nition of "county business" as used in Art. 5, Sec. 18 of the
Constitutionof Texas, that it would have the authority to employ
such representativeon an annual basis to represent the County
in connectionwith all legitimate projects pending be,foreFeder-
al Agencies in Washington, so long as this representationwas
confined to projects which constituted"county business" as used
in Art. 5, Sec. 18 of the Constitution.
Your second question is, therefore, answered in the
affirmative.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By /s/ Douglas E. Bergman
Douglas E. Bergman, Assistant
APPROVED APR 23, 1946
/s/ Carlos Ashley
FIRST ASSISTANT ATTORNEY GENERAL
APPROVED:OPINION COMMITTEE
BY: BWB, CHAIRMAN
DEB/bw:wb