THE ATTORSEY GESEKAL
OF TRS,~S
September 20, 1989
Honorable Dale Hanna Opinion No. JM-1097
Johnson County Attorney
First Floor, Courthouse Re: Whether Johnson County has
Cleburne, Texas 76031 the option of creating a county
industrial commission instead
of a board of development
(RQ-1692)
Dear Mr. Hanna:
You ask three questions regarding the application of
sections 381.001 and 381.002 of the Local Government Code to
Johnson County. Your questions are as follows:
1. Does a County with a population census
figure of 67,000 in 1980 have the option of
forming a County Industrial Commission under
Section 381.001 or is it required to form a
Board of Development under Section 381.002?
2. If Section 381.001 is available, can
the County expend funds from the general fund
to promote industrial development without an
election pursuant to Section 381.002?
3.' If Section 381.002 is the exclusive
choice, what options are available to a
County, with a population census figure of
67,000 in 1980, as to appropriating funds for
industrial growth and development?
Your questions are based on the law prior to its
amendment by the 71st Legislature. The adoption of Senate
Bill 24, which amends section 381.002, Acts 1989, 71st Leg.,
ch. 1060, § 2, at 4306, has changed both the sense of your
questions and the answers.1 Your questions numbered one and
three indicate the population of Johnson County, and prior
1. The effective date of Senate Bill 24 was August 28,
1989.
Honorable Dale Hanna - Page 2 (JM-1097)
to the amendment the population was a significant consi-
deration. However, the amendment deleted population
brackets that had limited the application of section 381.002
to counties with a population of more than 50,000. We now
conclude that any county may act under either of the
sections.
First, we will examine the provisions of the two
statutes about which you inquire. Section 381.001 allows
the county judge of any county to appoint a County
Industrial Commission to "investigate and undertake ways of
promoting the prosperous development of business, industry,
and commerce in the county." Local Gov't Code 5 381.001(f).
That section allows the county to "pay the necessary
expenses of the commission." Id. 13381.001(e). The com-
mission is required to cooperate with and use the services
of the Texas Department of Commerce. Id. 5 381.001(g), as
amended by Acts 1987, 70th Leg., ch. 374, g 8(e), at 1871.
We will discuss section 381.002 as amended by Senate
Bill 24, and our subsection citations will refer to the
section as amended. Section 381.002 creates a board of
development in all counties. Local Gov't Code § 381.002(b).
The county commissioners court appoints the members of the
board, which is required to "devote its time and effort to
advertising and promoting the growth and development of the
county." Id. 5 381.002(b), (c). That section also allows
counties to appropriate funds and to levy a tax for the
purposes of the board but makes such appropriation or tax
subject to a popular vote and sets a ceiling on the rate.
Id. 5 381.002(a). Subsection (g) recognizes that "a county
may operate under another law authorizing the appropriation
of money or levy of a tax for advertising and promotion
purposes" but extends the appropriation and tax limitations
established by subsection (a) to counties operating under
another law. Id. § 381.002(g).
This office examined these two provisions prior to
their inclusion in the Local Government Code. In Attorney
General Opinion JM-516 (1986), we said:
A county has authority to promote the develop-
ment of businesses and industries in the
county through a county industrial commission
established under article 1581g-2, V.T.C.S.
[now Local Gov't Code § 381.001], or through
a board of development established under
article 2352d, V.T.C.S. [now Local Gov't Code
§ 381.002].
Honorable Dale Hanna - Page 3 (JM-1097)
Attorney General Opinion JM-516 (1986).
In that earlier opinion we did not discuss the popula-
tion bracket that had limited the application of section
381.002 because it was not relevant. NOW, with the 1989
amendment to section 381.002, the legislature has clearly
indicated its intent that any county may operate under that
section. Section 381.001, which allows the county judge
of any county to appoint a county industrial commission,
similarly applies to all counties. It is clear that any
county may act under either section.
Your second question is whether a county acting under
section 381.001 may expend funds from the general fund to
promote development without an election. Section 381.001
does not require an election prior to the expenditure of
funds, and it allows the county to pay the "necessary
expenses" of the commission. Local Gov't Code 5 381.001(e).
We caution, however, as noted above, subsection (g) of
section 381.002 extends the limit on appropriations found in
subsection (a) ("an amount not to exceed five cents on the
$100 assessed valuation") to counties operating under
another law.
We need not answer your third question because we have
concluded that Johnson County may operate under either of
the two sections.
SUMMARY
In order to create a county level agency
and to appropriate county funds to promote
development in Johnson County, the county may
operate under either section 381.001 or
section 381.002 of the Local Government Code.
Any appropriation under either section may
not exceed the ceiling established by section
381.002(a). If operating under section
381.002, any appropriation must be approved
in advance by a majority vote of the county
electorate.
/V-f; yJf&
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Honorable Dale Hanna - Page 4 (JM-1097)
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General