Untitled Texas Attorney General Opinion ( 1961 )

. .
November 6, 1961
Honorable Jarvis Wieser Opinion No. WW-1194
County Attorney
Gillespie County Re: Whether it is mandatory or dis-
Fredericksburg, Texas cretionary on the part of the
Commissioners' Court to call an
airport bond election; whether
a county may legally issue nego-
tiable securities for the pur-
pose stated in the petition: and
whether proceeds may be used to
construct a building to be leased
to a private corporation for its
Dear Mr. Wieser: use in manufacturing aircraft.
In your letter requesting an opinion of this office,
you state that a petition has been presented to the Commis-
sioners' Court of Gillespie County requesting that an elec-
tion be ordered ". . . to vote on the matter of authorizing
the issuance of negotiable bonds of Gillespie County, Texas,
for the purpose of improving, operating and maintaining the
airport of Gillespie County, Texas, and providing suitable
structures and facilities therein . . ." You have asked the
following questions:
"1. Assuming the purpose for which
bonds are sought to be issued as set forth
in a petition is legal, is the matter of
calling an election discretionary on the
part of the Commissioners' Court, or is it
mandatory?
"2 . May a county legally issue nego-
tiable securities for the purpose and under
the circumstances set forth in the fore-
going statement and enclosure, following a
favorable majority vote of qualified voters?
. -
Honorable Jarvis Wieser, page 2 (WW-1194)
"3 . Assuming a bond election is called
‘Forthe purpose of improving, operating and
maintaining the Airport of Gillespie County,
Texas, and providing suitable structures and
facilities therein', and a favorable majority
vote of the qualified taxpaying voters re-
suits, may the money realized from the bond
issue be used for the purpose of constructing
hangar type buildings to be leased by the
county to a private corporation for its use
in manufacturing aircraft?"
In your brief, you quote from Article 1269h, V.C.S.,
and we assume that the bonds contemplated will be issued pur-
suant to the provisions of this article. Said article au-
thorizes the Commissioners' Court of any county to issue nego-
tiable bonds of the county and to levy taxes to provide for
the interest and sinking funds of any bonds so issued
"For the purpose of condemning or purchasing,
either or both, lands to be used and msin-
tained as provided in Section 1 hereof, and
improving and equipping the same for such
use, . . .'I
This article further provides that the authority given for
the issuance of bonds and the levy of taxes is to be exer-
cised in accordance with the provisions of Chapter 1 of
Title 22 of the Revised Civil Statutes of 1925 (Art. 701
et seq., V.C.S.). This chapter, in Art. 701, V.C.S., pro-
vides that -
"The bonds of a county . . . shall never be
issued for any purpose unless a proposition
for the issuance of such bonds shall have
been first submitted to the qualified voters
who are property taxpayers of such county,
. . . II
.
Said chapter provides also for details of the required elec-
tion, such as submission of the proposition and its contents,
Honorable Jarvis Wieser; page 3 (WW-1194)
time of election, notice of election, and the form of the
ballot. There is, however, no provision whatsoever for a
petition requesting that an election be called or requir-
ing that an election be called when a petition is presented.
Therefore, in answer to your first question, it is the
opinion of this office that the matter of calling an elec-
tion under the stated circumstances is entirely discre-
tionary on the part of the Commissioners' Court.
In order for a Commissioners' Court to lawfully
issue negotiable securities of a county, there must be ex-
press authority to issue such securities for the stated
purpose. It is not a power to be implied. Lasater v. Lopes,
110 Tex. 179, 217 S-W.373 (1919). The petition to which you
refer asks for an election for securities for the purpose of
II
. . . improving, operating and maintaining the airport . . ."
Article 1269h. V.C.S., authorizes negotiable bonds for the
purposes set out above. In other words, under Article 126911,
a county may issue negotiable securities to acquire land to
be used and maintained as an airport, and for N . . . imorov-
inq and equipping the same for such use.," (Emphasis added).
These are the only purposes for which negotiable bonds are
authorized by Article 1269h. While the purpose clause in the
petition does include "improving", which is an authorized
purpose, it also includes "operating" and "maintaining", for
which purposes there is no authorization. We are of the
opinion that the purpose clause must stand or fall as a whole.
Therefore, since the purpose clause stated in the petition
contains elements for which there is no authorization, a county
may not legally issue negotiable securities for the purpose
stated in the petition which has been presented to the Com-
missioners' Court of Gillespie County.
Your third question is answered in the negative,
for the following reasons:
The Texas courts have consistently held that the
Commissioners' Court is a court of limited jurisdiction and
has only such powers as are conferred upon it, either by
express terms or by necessary implication, by the statutes
and Constitution of this State. Childress County v. State,
127 Tex.343, 92 S.W.2d 1011 (1936); Von Rosenberg v. Lovett,
173 S-W.508 (Civ.App. 1915, error ref.); Roper v. Hall,
Honorable Harvis Wieser. Page 4 (WW-1194)
280 S-W.289 (Civ.App. 1925); Art. 2351, V.C.S.; 11 Tex. Jur.
632, Counties, Sec. 95.
The authority to lease all or part of any airport
or property connected therewith which is conferred by Art.
1269'31,supra, is only for some use which is connected with
the maintenance and operation of an airport. Attorney Gen-
eral's Opinion No. V-1162 (see attached copy). It is the
opinion of this office that the manufacturing of aircraft by
a private corporation is not a use which is connected with
the operation and maintenance of an airport, and, therefore,
the Commissioners' Court is not authorized to lease buildings
to a private corporation for its use in manufacturing air-
craft.
SUMMARY
Since there is no statutory provision for a
petition under Article 1269h, V.C.S., the
petition which has been presented to the Com-
missioners' Court has no legal effect and
the calling of an election as requested by
the petition is discretionary on the part of
the Commissioners' Court. The Commissioners'
Court may not legally issue negotiable securi-
ties for the purpose stated in the petition.
The Commissioners' Court may not use the pro-
ceeds of such a bond issue to build hangar
type buildings to be leased to a private
corporation for its use in manufacturing
aircraft.
Very truly yours,
WILL WILSON
Attornev General of Texas
Rbbert T. Lewis '
RTL-s Assistant
.-
Honorable Jarvis Wieser, page 5 (WW-1194)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Riley Eugene Fletcher
Norman V. Suarez
Linward Shivers
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.