Untitled Texas Attorney General Opinion ( 1987 )

Honorable Tony Hileman Opinion No. JM-753
Marion County Attorney
105 Austin Street Re: Whether a county may furnish
Jefferson, Texas. 75657 rent-free office space in the
county courthouse annex to a
chamber of commerce
Dear Mr. Bileman:
You ask whether Marion County may provide rent-free office space
in the county courthouse annex building to the Marion County Chamber
of Commerce.
Article 2351(7), V.T.C.S., authorizes the commissioners court of
each county to
provide and keep in repair court houses, jails and
all necessary public buildings.
Article 1603, V.T.C.S., provides that
[t]he commissioners court of each county . . .
shall provide a courthouse and jail for the
county, and offices for county officers . . . and
keep the same in good repair.
The Marion County Commissioners Court has only the powers
conferred either expressly or by necessary implication by the consti-
tution and statutes of this state. See Tex. Const. art. V, §18;
Canales V. Laughlin, 214 S.W.2d 451, 453(Tex. 1948).
The question of renting space within a courthouse has been
litigated. In Tarrant County V. Rattikin Title Company, 199 S.W.2d
269 (Tex. Civ. App. - Fort Worth 1947, no writ) the court found
authority for the commissioners to assign space in the courthouse
basement for use by five title companies to inspect and copy real
property records. The companies were viewed as "agents of the public
who examine and copy the records as agents of the individual members
of the public after receiving orders for the preparation of an
abstract." 199 S.W.2d at 272. The Rattikin court disallowed the
county's attempt .to charge rent for the space provided to the title
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Honorable Tony Rileman - Page 2 (JM-753)
companies, because it was space that the court required the companies
to use to perform their examinations of public records. The court
considered that rental charges under those facts would constitute a
prohibited fee for the examination of public records.
In Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App. - Waco
1938. writ dism'd), the court approved the rental of an alcove in a
courthouse rotunda for a cigar and cold drink stand as a permissible
exercise of the county's duty to provide a courthouse. The court
viewed the stand as a "necessary convenience incident to the carrying
on of the county's business in the courthouse." 118 S.W.2d at 623.
The court noted that the rented spacr was not suitable for use for
county offices, that no public funds were expended to maintain the
space, and that the use did not interfere with the proper use of the
courthouse. 118 S.W.2d at 622 and 624.
Relying on the rationale in Rattikin and Dodson, this office has
determined that a county may allocate free space in the courthouse for
use by the news media and by a county employees' credit union. See
-
Attorney General Opinion MW-200 (1980).
In our opinion, the Marion County Chamber of Commerce is not "an
agent of the public" equivalent to the news media or title companies.
Nor is it an entity similar to a cigar stand or a credit union whose
presence in the courthouse is necessary to the convenience of county
employees or those transacting business in the courthouse. Therefore,
we do not believe that the commissioners court may provide free office
space in the courthouse to the chamber of commerce without violating
article III, section 51, of the Texas Constitution. See Attorney
General Opinion JM-716 (1987) (payment of chamber of comaiie dues by
county is illegal donation of county funds).
Your question involves office space in a courthouse annex, not
space in the courthouse proper. If the annex is considered to be
an addition to the courthouse building, the preceding discussion
controls. However, if the annex is a separate public building
distinct from the courthouse, other statutes may apply.
Article 2370, section 1, V.T.C.S., provides:
The Commissioners Court of any county may, when
necessary, provide buildings, rooms, or apartments
at the county seat, other than the courthouse, for
holding the sessions of the County Courts,
District Courts, and for carrying on such other
public business as may be authorized by the
Commissioners Court, and may lease or rent such
part of any such buildings, rooms, or apartments
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Honorable Tony Hileman - Page 3 (JM-753)
as may not be necessary for public use. (Emphasis
added).
Article 2370b. V.T.C.S., provides. in pertinent part:
Section 1. Whenever the Commissioners Court of
any county determines that the county courthouse
is not adequate in size or facilities to properly
house all county and district offices and all
county and district courts and all justice of the
peace courts for the precincts in which the
courthouse is situated, and to adequately store
all county records and equipment (including voting
machines) and/or that the county jail is not
adequate in size or facilities to properly confine
prisoners and other persons who may be legally
confined or detained in a county jail, the Commis-
sioners Court may purchase, construct, recon-
struct, remodel, improve and equip. or otherwise
acquire an office building or buildings, or
courts building or buildings, or jail building or
buildings (in addition to the existing courthouse
and/or jail), or an additional building or
buildings in which any one or more of the county
or district offices or county, district or justice
of the peace courts, or the county jail or any
other county facilities or functions may be
housed, conducted and maintained; and may purchase
and improve the necessary site or sites therefor,
and may use such building or buildings for any or
all of such purposes, provided that any such
building or buildings so acquired shall be located
in the county seat. . . .
Sec. 2. Such building or buildings, when pur-
chased, constructed or otherwise acquired and
equipped may also be used for the purpose of
carrying on such other public business as may be
authorized by the Commissioners Court, and/or the
Commissioners Court may also lease or rent any
part or parts of any such building or buildings,
(which may not be presently needed for any of the
above purposes) to the State of Texas and any of
its political subdivisions, and the Federal
Government. (Emphasis added).
Article 1577, section l(a), V.T.C.S., provides:
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Honorable Tony Hileman - Page 4 (JM-753)
The Commissioners Court may, by an order to be
entered on its minutes, appoint a Commissioner to
sell or lease any real estate of the county at
public auction, and notice of said public auction
shall be advertised at least twenty (20) days
before the day of sale, by the officer, by having
the notice thereof published in the English
language once a week for three (3) consecutive
weeks preceding such sale or lease in a newspaper
in the county in which the real estate is located
and in the county which owns the real estate, if
they are not the same. (Emphasis added).
None of these statutes authorizes the donation of space in a
county building other than the courthouse to be used for private
purposes. However, pursuant to the above-quoted statutes, the
commissioners court may lease space in a building other than the
courthouse to a private or public entity if the space is not currently
needed for county business.
SUMMARY
Marion County may not donate office space in
the county courthouse annex to the .Marion County
Chamber of Commerce. The commissioners court may
lease space in a county building other than the
courthouse to the chamber of commerce.
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen Gladney
Assistant Attorney General
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