Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
August 30, 1978
JOHN L. HILL
Attorney General
Honorable Gene Knize Opinion No. H- 1234
Ellis County Attorney
Ellis County Courthouse Re: Authority of county to
Waxahachie,Texas 75165 exchange real estate for like
property.
Dear Mr. Knize:
YOU ask whether the commissioners court has the authority to dispose
of real estate owned by the county through the method of exchange for
similar or like property.
The commissioners court may diiposa of land only pursuant to some
statute. a
Fer 47 Tex. 42lf1877); Attorney General Opinion M-
799 (1971). The statute governing the dii of land by the commissioners
court is article 1577, V.T.C.S. Wilson v. County of Calhoun, 489 S.W.2d 393,
397 (Tex. Civ. App. - Corpus Christi 1972, writ ref’d n.r.e.); Attorney General
Opinions M-799 (197U;M-524 (1969).
Article 1577 permits the commissioners court to “appoint a Commis;
sioner to sell or lease any real estate of the county at public auction. . . .v
Terms such as “sell” or “sale” have been construed to encompass an exchange.
Bowling v. City of Bl Paso, 525 S.W.Bd 539 (Tex. Civ. App. - Bl Paso) writ
ref’d n.r.e. per curiam, 529 S.W.2d 509 (Tex. 1974). It is our opinion, howe=
that a statute that requires land to be sold at a public auction evidences the
intent that the land be sold for money and not exchanged for other property,
as auctions are not generally considered methods for effectuating exchanges.
See Clark v. Stanhope, 59 S.W. 856, 858 (Ky. 1900) (auctions are a “means of
converting things into money,” quoting Bishop on Contracts, S 528 (lst ed.
1887)). “Auction” means “the sale of any property by competitive bid.”
V.T.C.S. art. 8700, S l(1). If a bid of property were made at an auction, the
property’s value would have to be validated by some procedure in order to
determine the bid’s competitiveness. The fact that such procedures are not
contemplated by the statute indicates that exchanges were not intended to be
authorized. There are exceptions to the auction requirements of article 1577
relating to highway rights-f-way or seawalls, but they are inapplicable here,
and we need not consider them.
p. 4927
Honorable Gene Knize - Page 2 (~-1234)
We note that, outside the scope of article 1577,political subdivisionswith the
oower of eminent domain and condemnation mav exchange Land between them-
klves. City of Tyler v. Smith County, 246 S.W.22 601 (Tek 1952); El Paso Count
v. City of El Paso, 357 S.W.2d 783 (Tex. Civ. App. - El Paso 1962, eno wrtt .
such agreements might be considered to be “sales” of land, they are “most
reasonably characterized as an agreement reached between two political sub-
divisions . . . respecting the paramount public use of land owned by one of them.”
Attorney General Opinion H-93 (1973).
SUMMARY
Land sold or leased at a public auction pursuant to article
1577, V.T.C.S., may not be exchanged for other property.-
Land may also be exchanged between political subdivisions
with the power of eminent domain.
ey General of Texas
APPROVED:
DAVID M:KENDALL, First Assistant
pJ&4$r
C. ROBERT HEATH, Chairman
Opinion Committee
p. 4928