Untitled Texas Attorney General Opinion ( 1964 )

,
THEATTOIRNEY GENERAL
OF TEXAS
AUSTIN. TEXAS 78111
WAGGONER SCAHW
August 11, 1964
Honorable Frank W. Raymond, Jr. Opinion No. C- 292
Director
Texas Aeronautics Commission Re: Whether Article 46c-6,
203 West 16th Street Vernon's Civil Statutes,
Austin, Texas could be amended to au-
thorize the grant of duly
appropriated funds to in-
corporated cities for the
construction of airports
and navigational facili-
ties without viol.ating
Section 51 of Article III
Dear Mr. Raymond: of the Texas Constitution.
You have requested an opinion on whether Article 46c-6,
Vernon's Civil Statutes, could be amended to authorize the grant
of duly appropriated funds to Incorporated titles for the construc-
tion of airports and navigational facilities without violating
Section 51 of Article III of the Constitution of Texas.
Said proviso of the Constitution states as follows:
"The Legislature shall have no power to
make any grant or authorize the making of any
grant of public moneys to any individual, as-
sociation of individuals, municipal or other
corporations whatsoever; . . .
However, the Courts of Texas have interpreted this
constitutional restriction as preventing the granting or giving
away of public money for other than governmental purposes. The
Courts have said that it is permissible to grant state funds to
municioal coroorations where the monev is nranted for a DUrDOSe
that i'sgover*nmental. See Shelby County VT Allred, 123 Tex: 77,
65 S.W.2d 164 (1934).
Article 46d-15, Vernon's Civil Statutes, states as
follows:
-1399-
Hon. Frank W. Raymond, Jr., page 2 (C-292)
"The acquisition of any land or interest
therein pursuant t this Act, the planning, ac-
quisition, establiihment, development, construction,
improvement, maintenance, equipment, operation, regula-
tion, protection and policing of airports and air
navigation faciliti I ldi the acquisition or
elimination of airp% h``a~ds~gand the exercise of
any other powers herein granted to municipalities
and other public agencies, to be severally or
jointly exercised, are hereby declared to be public
and governmental functions, exercised for a public
urpose, and matters of public necessity; and in
he case of any county, are declared to be county
functions and purposes as well as public and govern-
mental; and in the case of any municipality other than
a county, are declared to be municipal functions
and purposes as well as public and governmental.
?Zllland and other property and privileges acquired
and used by or on behalf of any municipality or
other public agency in the manner and for the
purposes enumerated In this Act shall and are
hereby declared to be acquired and used for public
and governmental purposes and as a matter of public
necessity, and, in the case of a county or munlci-
pality, for county or municipal purposes, respectively."
(Emphasis added)
The Fifth Circuit Court of Appeals and the Supreme
Court of Texas have stated that the aforesaid Article is valid.
In Imperial Production Corp. v. City of Sweetwater, 210 F.2d 917,
(5th Clr. ly54), the Fifth Circuit said:
I,
* . .In the light of the then existing
law, we can see no effective meaning to be given
to Article 46d-15, other than that the designation
of the functions therein as being public and
governmental carried with it all of the consequences
which such a designation entails, including exemption
of the municipality from tort liability.
11
. . .
"It is clearly within the province of the
legislature, when acting reasonably and not ar-
bitrarily, to determine whether an act that may
be performed by a city is public in its nature
and performed as the agent of the state in fur-
therance of general law for the interest of the
public at large and, hence, governmental. . . .'
-1400-
Hon. Frank W. Raymond, Jr., page 3 (C- 292)
The Supreme Court of Texas, In City of Corsicana v.
WG, 159 Tex. 202, 317 S.W.2d 516, 520 (nb5j, stated:
"In Imperial Production Corp. v. City
of Sweetwater, 5 Cir., 210 F.2d 917, a dis-
tinguished court, accustomed to dealing with
Texas law questions, held for city immunity
in a case substantially identical with the
present and in so doing expressly sustained
the constitutionality of the relevent pro-
visions of Art. 46d-15, supra, and relied
upon it. . . .
"We agree with the line of cases just
referred to and find nothing unreasonable
in either Art. 46d-15 or the earlier statute,
Art. 1269h, Sec. 3. . . .'
Since the Legislature has declared by statute that
the operation of airports by municipalities and other govern-
mental subdivisions is a public and governmental function, and
such statute has been upheld by the above court decision, in our
opinion Article 46c-6, Vernon's Civil Statutes, could be amended
to authorize the grant of duly appropriated funds to incorporated
cities for the construction of airports and navigational facilities
without violating Section 51 of Article III of the Constitution of
Texas. However, this opinion answers only the question as to
whether said Article could be so amended and does not purport to
approve or disapprove the amendment proposed in your letter.
SUMMARY
Article 46c-6, Vernon's Civil Statutes, can
be amended to authorize the grant of duly appro-
priated funds to incorporated cities for the cons-
truction of airports and navigational facilities
without violating Section 51 of Article III of the
Constitution of Texas.
Very truly yours,
WAGGONER CARR
Attorney General
Roy B. Johnson
RHJ:mkh Assistant
-1401-
Hon. Frank W. Raymond, Jr., page 4 (C- 2%)
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Paul Phy
Kerns Taylor
Ivan Williams
George Gray
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
-1402-