Untitled Texas Attorney General Opinion ( 1971 )

Honorable Robert F. Atkins Opinion No. M-799
County Attorney
San Jacinto County Courthouse Re: Authority of a County to
Coldspring, Texas 77331 lease its property.
Dear Mr. Atkins:
Your recent letter requesting an opinion from this office poses
the following question:
“Whether the Commissioners’ Court of
San Jacinto County can lease to private individuals
a portion of the old State Highways and Farm-to-
Market Roads that have been turned back to the
County? ”
A general statement of law applicable to powers of the Com-
missioners’ Court is set out in the following statement: .
“Although the commissioners’ court, as
the a,cting governing body of the county, has juris-
diction touching in some respect almost every
feature,of the county’s business, its power extends
only to such business of the county as is entrusted
to it by the constitution or statute. In other words,
the jurisdiction of the commissioners’ court over
the county business is not general and all-inclusive,
but is limited to matters or Rowers specifically
covered by the constitution and statutes. The court
does not have general police powers. %foreover, it
must conform to the statutory mode prescribed for
the~exercise of its powers.” 15 Tex. Jur. 2d 261-2.
Counties, Section 35, and cases there cited. (Em-
phasis added. )
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Honorable Robert F. Atkinr, page 2 (M-799)
Article 2351, ’ in part, provides that:
1
“Each commissioners’ court shall:
“3. Lay out and establish, change and dis-
continue public roads and highways.
‘1. . .
“6. Exercise general control over all roads,
highways, ferries and bridges in their
counties.
I,
. .
“15. Said court shall have all such other powers
and jurisdiction, and shall perform all such
other duties, as are now or may hereafter
be prescribed by law. ” (Emphasis added. )
While Article 1577 deals with the sale of real estate by the
county, there is no language therein that either expressly or neces-
sarily implies that a county may lease its own property for any pur-
pose. Since its amendment in 1953 (Acts 53rd Leg., R. S. , Ch. 133,
p. 447), Article 1577 has constituted the general authority of a county
to sell or dispose of real estate, with no provision therein contained for
leasing land. We find no cases of any appellate court having construed
this Article with reference to the power of a county to lease land.
We do find several statutes authorizing a county, or certain
counties, to make a lease of county owned land for certain purposes
and under specified conditions:
(1) an airport, Articles 2351, subdivision 18(a) and Article
1269h, subdivision D (Attorney General Opinion No.
M-758 (1970) so holding);
1 All references to Articles are to Vernon’s Civil Statutes.
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Honorable Robert F. Atkins, page 3 (M-799)
(2) county hospital: Articles 4494a, 4494b. 4494~. 4494d,
4494e. 4494f, 4494g. 4494h, 4494j. 4494k.’ 44941. and
4494m.
This office has consistently held since February 17, 1948, that
there is no general authority conferred by the Constitution or statutes
authorizing the Commissioners’ Court to lease its property. Attorney
General Opinions Nos. R-1073 (1948); V-1085 (1950); V-1457 (1952);
and C-678 (1966). In view of the foregoing, it will be presumed that the
Legislature has had knowledge of this departmental construction, and
having met numerous times without amending the statutes to provide
authority for counties to lease property, it has acquiesced in that con-
struction and did not desire to grant general authority to counties to
lease property. Likewise, it is settled that the courts will ordinarily
adopt and uphold the statutory construction of the Attorney General if
such is deemed reasonable. 53 Tex. Jur. 2d 262-263, Statutes, 177.
further stating:
“In particular, an opinion or ruling of the
Attorney General is highly persuasive and will be
carefully considered and followed in case of doubt
as to the proper construction to be given a statute. ”
We hold, therefore, that in the absence pf a statut’e conferring
upon the county the authority to lease its property, such authority does
not exist. Consequently, even assuming that title to the abandoned high-
way property is in the county, the Commissioners’ Court of San Jacinto
County is without authority to lease it or any portion thereof.
SUMMARY
There is no existing general statutory authority
authorizing a county to lease its property for any pur-
pose, and before any county may lease its property, the
Legislature would have to enact appropriate legislation
empowering counties to lease their property.
Very*y yours,
Attorney eneral of Texas
LY
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. ,. .
Honorable Robert F. Atkinr, page 4 (M-799)
Prepared by Edward B. Rather
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
MerriIl Finnell
Arthur Sandlin -
Bob Lattimore
Max Hamilton
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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