Untitled Texas Attorney General Opinion

L THEA'ITORNEYGENERAL OFTEXAS Ron. Austin F, Anderson Opinion No. V-1219 CFlmlnal Dlstrlct Attorney San Antonio, Texas Re: Whether Bexar County may Issue tl.mewar- rants for purchase Dear Mr, Anderson: of right of way, In your letter of June 27, 1951, you advise 1~ us that Loop 13 Is the name given to the highway that / connects the various military Installationsin and around San Antonio, that the proposed link south f%om Fratt, Texas, hassnever been completed although a right of way has been purchased by the county on plans submittedby the State Bighweg Department,and that the Highway Department has now requested the purchase of'additional right of way by the county In view of' the expected traffle flow over the proposed link, You further state that the county does not have funds on hand with which to purchase the additionalright of way, and that It is desired to issue time warrants therefor. It appears that the following two Orders were enacted by the Bexar County CommlssloneraDCourt on May 25, 1951 (minutesomltted)n "It I.8ordered by the Court that hav- ing been informed by person and by petitiona that the State of Texas and the Federal Qov- ernment have msde plans to widen irna fmpove U, S. Xwg. #81-InterstateRoute from the Austin Hwy. at Fratt to oonneat with the Ex- press Highway in San Antonlo, with the County furni~hlng adaitfonal.right-of-way of 110 Ft, vlae ana approximately3-3/U miles lo that constructfonof Loop 13 ma U. S. % so South from Fratt to U. S. 90 by the State Hlghway Department vlll be completed, that In order to obtain safd right-of-way,war- rants may be issued, does hereby declare that an emergency exfsta." 4 Hon. Austin F. Anderson, page 2 (V-1219 "It is ordered by the Court that In order to purchase right-of-mayfor addl- Mona1 right-of-wayneeded tomcomplete Loop 13 and U.S. Hwy. 81.South from Fratt to U.S. go, that an amoat not tb exceed $50;000.00 of Road AndyBridge Warrants be isstxea to cover the purchase of said rlght~s-of-way." In view of these facts, you ask the follow- ing questions2 "1. May~the Conmdssianers~Court ls- sue $50,000.00Road axidBridge Warrants as a Rational Emergency measure? "2. If the first question Is answer- ed In the negative, under what cadi- tlona may such warrants be issued?" In ~yourletter of request you briefed the law points involved, and you cams to the concllusion that such time warrants could not legally be Issued without an election. We agree vlth your ooneluslon. Section 1~of Bouse~Blll 106, Acts 51st Leg., R.S. 1949, ch. 36, p. 67 (Art. 2368f, V.C.S.), reads as follows: "Section -.- _ 1. In all counties having a popular;lonin excess of three hundred thou- sand (300,000)inhabitantsacoordlng to the last preceding or any future Federal Census, the ConmdsslonersCourt shall have no au- thority or power to Issue time wants un- tll and unless the same h8Ve been authorized by a majority vote of the qualified electors who own taxable~property in the county and hare duly ~renderedthe,s8me for taxation voting at an election therefor, such elec- tion to be held under the authority of 8nd In accorclanoewith the provisions of Chapter 1 of Title 22 of'the~Revised Civil Stetutes of Tex8s~of 1925. provided,,that in case of DublIe calamlts caused by fire. flood, storm. or to moteat the onbllc health. or In case of unforeseendamaRe to Dnblic yroDerts, machinery or eaulmakent,the Hon. Austin F. Anderson, page 3 (v-1219) Cum&ssioners~'Court . _ .. may issue spch-time . warrants m tne aggregate amoum or noz exceeding Flfty.ThonasndDollars ($50,000) amllg~ any one calenbr year as are neces- sary to,urovZdefor .the-ldiate reualr, presewation or nrotectlon~ of rmbllc m D- erti. and the lives and health of the citi- zens of the county without the necessity of such election." (Emphasisadded through- out.) Under the 1940 Federal Census, Bexar County had a population of 338,176 inhabitants, The Final 195CFederal Census gives the county a population of 500,460, There can be no doubt that Bexar County Is severed by the statute quoted above. It is evident, under the statute, that any tims warrants Issued by Ekxar County must be voted unless there Is a situation that comes within one of the exoeptlons specified therein. As you point out In your letter, If one or more of the following three exceptions: a, In Base of public calamity aaused by fire, flood, storm, b. To protect the public health, or c. In case of unforeseendamage to public property, maohlnery, or eqW+=t s are present, then the Commlssloners~Court, without the neoessity of an eleotlon, may Issue tiplewarrants for the following purpose: the llmaealaterepair, preservationw protection of public moperty, and the lives and health of the citizens of the connty. ~'As to the first exception, the Supreme Court of Teas, In the ease of Jones v. Williams, 121 Tex, 94, 45 s.w.28 130, 131 (1931),defined the word %alamltg” a8 follows: Ha. Austin F. Anderson, page 4 (V-1219) ” The w0ra tcalumltyfindl- Gates &'s;lpposesa somewhat contlnu- ous state, produced not usually by the direct agency of msn, *but by natural causes, such as fire, flood, tempest, disease,' etc." The facts as presented show no public ca- lamity present, &nd the orders of the Commlssicmers~ Court show no such calamlty. It certainly cannot be said that the right of way must be purchased because of fire, flood, or storm. There has been no public calamity as set forth In the statute. As for the protection of the public health, we agree with you that,the'prrrchaseof the right of way and the constructionof the highway would not promote the public health. Of course, In a broad sense, an Improved highway may ptotect the pub110 health. However, we think that the statute clearly contemplatesemergency conditions, such as epidemic or plague. As to the third exception, you state that there Is no known damage to public property, maahin- erg, or equipment. If any of the conditions outlined In the three exceptions are present, then time warrants may, without an election, be Issued "for the lzmuedlate repair, preservationor protection of public property, and the lives and health of the citizens of the county." This purpose show that the point of the exceptions la to permit the preservationof the status guo (as it existed prior to arrival of the emergency conditions set out In the exoeptions). It Is our opinion that neither the facts nor the orders of the Conmdssionersf Court show any such emergency condition. You are advised, In answer to your first question, that the Commlssloners(Court has no au- thority to Issue the time warrants In question vlth- out an election as provided in Article 2368f. In your second question, you ask~~~t;&it conditions may such warrants be issued. facts as presented, such warrants could be Issued only after authorizationby a majority vote of the . Hon. Austin F. Anderaon,'pnge5 (V-1219) quallf%ed property taxpaying voters at an election &uly called and held as required by the statute. The ooncluslonaannounced herein are en- tirely In harmony with those expesse8 by you in your very able brief. Under the fads as submitted,the Com- missioners' Court of Bexar County may not leetiethe tlms warrants In questlon for the purchase of right of way unless the 8ame is authorized at an eleatlon called and held as provided In Article 2368f, V.C.S. APPROVED: Yours very truly, Everett Hutchinson PECEDAIIIEL Executive Assistant Attorney @enera Charles D. Mathews FirstAssistant BYQeorge W. Spsrks QUS-S Assistant