Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN I Honorable John R. Shook Grlminal Distriot AttOlTmy San AntaniO, Texas Dear Sir; AttentiOSll &‘. o? ArtloXe EMOh, statutes, $6 an opinion of thin depert- ed bee bsen rsoalved. or Artlols lmvh or of Texee Of 19&E, en t any 9ountp may ab- on or purohare land for such county, oould euoh nnty therefor?w rtiole ta whioh you refer (Astiole 1869h, R. 0. S., 1985) does not give the ofamaii~loners oourt suoh authorlt~y, either arpre86ly or tipliddly, and the To&m appellate odurte have aonsietentlpadhered to the prinolpl.6 that the oomnlssion%reoourt oan ereroies only auah authar- ity aa is conterred upon them by the Gonetltutlanand the statutes of thP6 State+ Ronorabla John R. Shook, paga Z Bland v. Om, 39 S. W. 558; Xill~OU~un~y~4Lampaaas County, -, h’unn-“;pl~rau’~bliahing Coqany v. Hutohison County, 45 S.W. (2d) 651; Hogg v. Campbell, 48 S.W. ad) 5131 Ladman ‘I.State, 97 S.W. t2d) 8641 El PM; County V. Elam, 106 3.W. (8d) i Howard V* Banderron Ccmty, 116 R.W. Dod,!i”!.‘~!k&izi,,118 S.W. (2d) 081. Counties obtain the power and authority to dlspoae of their real a&ate by tha provisions of Artlola 1377, Ra- vised Civil Statuhae of 1OeS, whloh reads a8 follawar *Artdale X397. The oowaieslonarsoourt may, by an order to be antarad on its ruinutae, eppolnt a aammIqaion%rto eel1 and dlopoaa of any real estdtcl OS a oounty at pub110 euatlon, The deed of auoh aomraisalona’r,made in aontom- ity to auoh order for and in behalf of the oounty, duly aoknowledgadand approved and reoorded shall be suffloientto oontay to th% purohaaaraall the right, tltla and Interest and estate whiah the county mey have in ana to the premises to ba COnveyad* Kathing oontained In thfa artiala shall authoriea any oommIssion%rsoourt to dia- posa of say lands @van, donated, or qxantad to suoh aounty for the purpose of eduoation in any other manner than shall be.dlrsoted by law.” The oonetruoticagenerally plaaad upon this statute wea laid down by Chief Justiae Roberta In an asrly Taxaa aa8a 08 r011ower ?!The@mare1 doctrine la, that a8 the aounty court is tha agent of tha aountg, in its oar rata oapr,oIty,it muat oonform to the ada presorrbed for Its aotlcn In tha ax%roIaa or the powers oon- ridad ta ita The psesaribing of a mode of axaraie- ing a power by auoh 8ubordinatea@moiee of the, Govern&exitbaa often been hsld to be a reatriotion to tkt tsOda‘* FerSuson Y. Wlalaell,47 T’ex.421, (18771‘e 2 Honorable John R. Shook, page 3 In the oase from whioh we have quoted, the Supreme cturt set aside a deed by whioh the oommissloneraoourt at- tempted to transfer title to some of the oounty'e real es- tate in satisfactionof a clsin against the oounty. Shortly after the above ease was deolded, Justioe Stayton in Yooters V. Eall, 01 Tex. 15, (lSS4) reaffirmed this oonstruotlonond held that oounty land could be sold only in the manner provided by statute, and oould not be given away. Thereafter the Colurtof Divil Appeals in two oases deolsred that the oounty oosnniasionersocurt has no author- ity whatsoeverto donate any of the oounty's real estate to any person for any purpose. Llano County v, Knowles, et al., 29 3. r. 549 and Llano County V. Johnson, et al., 29 S. W. 56. The following language was used by the oourt in both these casea: "The oomaiasionerst oourt of the oounty oooupy towards its property a trust relation, and they oan only dispose of its property in the aanner required by law, and for purposes that are in keepin with the trust they reRresentr They have no right to donate the ocuntg property, or dispose of it 80 as to virtually amount to a donation. It is a trust estate, and the prlnoiptee of equity will not per- mit them to be liberal and generous with property they do not own, end whioh they hold in trust for Rublio purposes." A rnoent ass8 by the Commiseion of Appeals shows a continuedadherence to this prinolple. 9ee Dreaben v. Xhite- hurst, (Cona. App., seotion A, 1934) 66 3. W. (2d) 1025. This department has uniformly placed the same construo- tion upon this statute thnt has been placed upon it 3y the oourts. We enolose s oopp of Opinion PO. O-1779, in whioh the power of the oommisslonereoourt to donate or-nntyreal estate is consi- dered, and in which this department held that a county nay dis- pose of its land only in the menuer presoribed by statute. The Forty-sixth Leeieleturedeviated slightly from the re;auiremant'th,at county lands be sold only at publio auotion. By .artiole52420, Revised Zivll Statui.es,enacted as House Bill I Ronorable John R. Shook, page 4 30. 922, Aots of 1939, oountias are authorized to sell ex- oeas real estate to the Federal Gwernment et a private sale, for e fai.roonsideratlon. An outright donation oan hardly be oonsldereda aomnlianoawith the requirement that a fair oonsiderntionbe paid and we know of no statute or conetitutionalprovisio~n ws;iohpermits a aounty to waive pay- ment of a fair considerationfor oounty owned real a&ate under any oiroumstenoes. .%nyother method of dispoainp,of such land by the oonuaisalonersoo?lrtwith6ut oonaiderationwould be subject to the same lt~itr.tions,and would likewise be beyond the powers of the oommiseioneraoourt. You are, therefore,respeotfullyadvised that It is the opinion of this departmentthc2tyo::x!question thould be answered in the negative, and it is 60 answered. Your8 very truly ATTORREYGENERAL OF TEXAS Peter Msnlroaloo Aasiatant PMrdb API’ROVEDsEP 30, 1940 u.u ATTORNEY GENERAL OF TEXAS