Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
March 13. 1986
JIM MAlTOX
AttorneyGeneral
Eouorablc Henry Wade Opinion PO. JH-489
s~premoCourt
Building District Attorney
P. 0. BOX t2yB Services Building Re: Wbcther a cmty my, by auction,
Aus,,“. TX. 78711. 2548 Dallas, Texas 75202 lease courthouse space to be used by
51214752501 a private cafeter(Z
Telex 910187+1367
Tslecoqisr 5W475-0266
Dear Mr. Wade:
714 Jackson. Suila 7w You have InEozmed us that the Dallas County Comissioners Court
Dallas. TX. 752024506 wishes to lease e,pace ovned by Dallas County lccated in the Cccnty
214l742-8W
Government Center. The court proposes to lease tte space to a private
business to opemte a cafeteria. Pou have also lxfomed us that the
4824 Alberta Ave.. Suite 160 area was originally designed and built for use as a cafeteria. and
El Paso. TX. 799052793 contains county wned cafeteria equipment which till be leased with
91Y5353464 tha space. The commissioners court also proposes that all utilities
will be provided and maintained by the county at no cost to the
1001 Texas. Suite 700
lessee. Finally, you have informed us that it is the intent of the
Houston, TX. 77002~3111 county to obtain for the county treasury the greatest amount of rent
71322M886 that may be obtaijmed through the competitive prccess. In that regard
you have requested our opinion on the authority of the commissicters
court to lease the space and vhat procedures should be utllizet.
806 Broadway. Suite 312
Lubbock. TX. 79401-3479
80617476230 The Dallas Colmty CoasaissionersCourt has only the powers conferred
either expressly or by necessary implication by ebe constltutior.st.d
statutes of this state. See Tex. Coast. art. 7’. 518; Canales v.
43X N. Tenth, Suite S Laughlin, 214 S.W.2d 451. 453 (Tex. 1948). The SFxty-third Legisla-
McAllen. TX. 78501.1685
512682-4547
ture amanded art,Lclc 1577. V.T.C.S., to read as fcllous:
The Commissioners Court may. by an crder to ba
MO Main Plaza. Suite 4M) enteres on its minutes, appoint a Condssloncr to
San Antonio, TX 782052797
sell or lease any real estata of the county at
51212254191
public au=. and notice of said public auction
shall be advertised at least tventy (20) days
An Equal OPPo~u~itY~ before the day of sale. by the officer, by having
Aftirmative Action Employer the notice thereof published in tF.a English
language once a vcek for three (3) consecutive
veeks preceding such sale or lease in a nevspaper
in the county in which the real estate is located
and in the county which owns the real estate, if
they arc not the same. (Emphasis added).
See Acts 1973, 63rd Leg., ch. 449. 51, at 1329. Bus, we believe chat
the cafeteria r.pace vithin the County Gove-t Ceptcr is ccunty
owned “real estzts” within the meaning of article 1577.
p. 2038
Honoreble Renry Wade - Page 2 (a-449)
The authority of a county commissioners court to lease space
within a courthouse to a private business mey be exercised under
limited circumstances. The commissioners court must determine whether
the use of the rental spsce will not interfere with the proper use of
the courthouse. and whether it is nacessary to the convenience of
those transacting businew in the courthouse. See Dodson v. Marshall.
118 S.W.2d 621 (Tex. Civ. App. - Waco 1938. xc dism'd); see also
Attorney General Opinion PSI-200 (1980); but see Tarrant County v.
Rattikin Title Co., 199 S.H.2d 269 (Tex. Civ. App. - Fort Worth 1947,
no writ) (commissioners court is not authorized to lease office space
to private enterprise whd.ch was originally erected for use of public
office).
Article 1577 requiras the commissioners court to follow a
specified procedure befl)re leasing county-owned real estate. We
believe that this statutory procedure is -mandatory and the commis-
sioners court is not allou'edto deviate from Its standards. See State
v. Pox, 133 S.W.2d 987 ~:Tex.Civ. App. - Austin 1939, writrem
Thus, article 2368a.5, V.T.C.S.. the County Purchasing Act. which
provides a procedure to assure competitive bidding in regard to county
purchases does not apply to leases. See V.T.C.S. art. 2368a.5. 13(a);
see also Attorney General Opinion %z385 (1985). Pou provide no
information indicating that a contract for services is also involved
with this lease. If so, a contract for services must be separated and
dealt with under the competitive bidding statutes.
Rowever, as quotet, above. article 1577 only specifies the
procedure the commissionor:court is to follow before a public auction
is held to lease county-owed real estate. The provision does not
specify the mode by which a bid is to be made and other procedures for
conducting the public auction. Under such circumstances. the Texas
Supreme Court has stated:
Where a ri:ght Is conferred or obligation
imposed on sa.id ~commissioners] court, it has
implied authority to exercise a broad discretion
to accomplish .:IIc
purpose intended.
Anderson v. Wood, 152 S.W.2d 1084. 1085 (Tax. 1941). The legislatura
in amending srtlcle 1577 :Lntendedthat s public auction be held before
leasing county owned real estate. V.T.C.S. art. 1577. Therefore, the
commissioners court has tha discretion to accomplish this purpose.
A pub&z auction is the sale or lease of property to the highest
bidder by means of competition for the purpose of a fair price, and
should be fairly conducted. See Kolbo v. Blair, 379 S.W.2d 125 (Tex.
Civ. App. - Corpus Cbristi 1964,writ ref'd n.r.e.); see also Attorney
General Opinion V-1148 (1951); 7 Tex. Jur. 3d Auction h Auctioneers
51. at 524. You are s?trcificallyconcerned about the manner of bid
required before s lease pursuant to article 1577 is valid. You
suggest that a sealed l):;dmay be necessary. We are of the opinion
p. 2039
Eonoteblo Ronry Wad. - Pager3 (a-449)
that the comisaionecrs court may USC full diecretion in conducting the
auction so long as the intentions of the bidder are plainly indicated
and fair competition la insured for all parties participating. Cf.
Bell County V. Pelta, 120 S.W. 1065 (Tu. Civ. App. 1909). rev’dx
other grounds. 132 S.W. 1123) (Tu. 1910) (sale of county real estate
by public auction requires public outcry). Although bids probably may
be made anonymously. w: do not believe that the auction may be
conducted with just a aecil.ed
bid. The amount of the bid must be open
so that competing bidders may raise their bids In response.
You have also aske,i whether a person appointed by the county
conmlaaionera court to t,onduct a public auction pursuant to article
1577 may be a person other than a “county conmiasioaer”. We think
not. Article 1577 requi::c:sthat a comniaaioaers court may “appoint a
commissioner” to lease cxunty-owned real eatatt, See V.T.C.S. art.
1577. The words of this provision are clear and unambiguous on this
point. See Attorney Ger,e,ral Opinion V-477 (1948) (person must be a
member ofthe com~Isaionc!racourt). Accordingly, we conclude that the
person appointed by tha! cmmisaioners court to execute the lease
itself and to oversee a public auction to award the lease of county-
ovued real estate under article 1577 must be a member of the county
comdaaionera court. Tke auctioneer need not, however, be a county
commissioner.
SUMMARY
Article 15Y7, V.T.C.S., requires the Dallas
County Comis~doaera Court to conduct a public
auction to leuae apace in the County Government
Center to private business to be used as a
cafeteria. ‘Ihe commissionera court is also
required to determine whether the lease of the
apace vi11 not: Interfere with the proper use of
, and whether the lease agreement
the courthoua<:
will afford a convenience to those transacting
business in the courthouse. The coemiaaioners
court has some discretion to specify what type of
bids may be, submitted for consideration at a
public auction to lease county-ovued real estate.
Sealed bids, t,owever,would defsat the purpose of
a public auczion. Finally, article 1577 also
requires that the person appointed by the cosmia-
sioners court to oversee a public auction be a
member of the commissioners court.
HATTOX
Attorney General of Texas
p. 2040
Honorable Aenry Wade - Pagct 4 (Jn-449)
JACK EIGBTOUER
First Assister& Attorney Gmeral
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney (General
RICK GILPIX
Chairmen, Cpinion Committee
Prepared by Tony Guillory
Assistant Attorney General
p. 2041