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The Attorney General of Texas
October 12, 1978
JOHN L. HILL
Attorney General
Honorable Leslie C. Acker Opinion No. Ii- 1256
County Attorney
Midland County Courthouse Re: Donation of city street
Midland, Texas 79701 right-of-way to county.
Dear Mr. Acker:
In Attorney General Opinion H-U88 (1978) we advised you that article
5421c-12, V.T.C.E., which generally requires publication and notiee of bids
prior to the transfer of a street right-of-way, would not apply to a certain
transfer by the City of Midland to Midland County because the county was
the sole “abutting owner” fronting the street to be abandoned. The question
considered there was a narrow one, and we did not address in that opinion the
effect of article 3, section 52 of the Texas Constitution on the transaction, or
the impact of article 1019, V.T.C.S. You have now asked specifically if a gift
of the right-of-way to the county, which intends to use the area to expand its
courthouse facilities, is constitutionally prohibited.
Article 3, section 52 of the Constitution reads in pertinent part:
Except as otherwise provided by this section, 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 in aid of, or to any
individual, association or corporation whatsoever, or to
become a stockholder in such corporation, association
or company.
Counties are considered to be municipal corporations or quasi-corporations
within the scope of this and similar constitutional provisions, and gratuities to
them by other municipal bodies, or even by the state itself, are unconstitu-
tional. See Bexar County v. Linden, 220 S.W. 761 (Tex. 1920). Transfers are
not gratuitous, however, if they are made on condition that the thing
transferred be used for public purposes benefiting the granting entity. San -
Antonio River Authority v. SheDDerd, 299 S.W.2d 920 (Tex. 1957).
p. 4982
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Honorable Leslie C. Acker - Page 2 (H-1256)
The question of whether the expansion of courthouse facilities within the city
would so benefit the City of Midland as to furnish an adequate consideration for the
transaction is one initially for the Midland City Council, and ultimately for the
courts. See Davis v. City of Lubbock, 326 S.W.2d 699 (Tex. 1959). We cannot say
it would not.
With respect to your question on the impact of article 1019, V.T.C.S., we have
concluded that it has no effect. Although that statute speaks to the abandonment
of city streets and provides that no part of a street is to be closed until the
question of closing it is submitted to the voters of the city, governing bodies with
the power of eminent domain need not secure the consent of an electorate to
obtain property they need for public purposes. Bolton v. City of Waco, 447 S.W.2d
718 (Tex. Civ. App. - Waco 1969, writ ref’d n.r.e.1; San Antonio v. Congregation of
Sisters 0: Chrity, 360 S.W.2d 580 (Tex. Civ. App. - Waco 1962, writ ref’d n.r.e.j
cert. denled 372 U.S. 967). -See Austin Ind. Sch. Diit. v. Sierra Club, 495 S.W.2d
878 (Tex. 1973).
Midland County possesses the power to condemn public property needed for
courthouse purposes and could seek to condemn the right-of-way. V.T.C.S. art.
3264a. Of course, the success of condemnation proceedings by one political
subdivision against property already devoted to a public use, if not controlled by
statute, depends upon the paramount need of the public. If the city and the county
agree that the paramount need is a need for courthouse facilities, there is no
difficulty. What Midland County might do by resort to condemnation proceedings,
it can do by agreement with the City of Midland. See Kingsville Ind. Sch. Dist. v.
writ ref’d) adopting
164 S.W.Zd 49 (Tex.
y v. City of El Paso,
also Austin Ind. Sch.
Dist. v. Sierra Club, s; City of Tyler v. Smith County, 246 S.W.2d 601 (Tex.
1952).
If the city and the county reach agreement respecting the paramount public
use of the property, and if the exchange is made for an adequafe consideration or
to accomplish a proper public purpose, we believe a transfer of the property to
Midland County without an election would probably be upheld by the courts.
Attorney General Opinions H-413 (1974); H-108, H-93 (1973).
SUMMARY
If the City of Midland and Midland County reach agreement
respecting the paramount public use of a city street right-of-
way needed for courthouse expansion, and if the exchange is
made for an adequate consideration or to accomplish a
proper public purpose, a transfer of the property to the
county without an election would probably be upheld by the
courts.
p. 4983
1
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Honorable Leslie C. Acker - Page 3 (H-1256)
Attorney General of Texas
APPROVED:
Opinion Committee
P. 4984