Untitled Texas Attorney General Opinion ( 1961 )

Honorable Joe Resweber Opinion No. WW-1074
County Attorney
Harris County Re: Validity of lease contract
Houston, Texas entered into by and between
the County of Harris and Houston
Dear Mr. ~Resweber: Sports Association, Inc.
Your request for ,an opinion on the above subject matter
asks the following questions:
"1. Does Harris County and Harris County
Board of Park Commissioners have the authority
to enter into thenattached Cbntract with the
Houston Sports-Atisoclatlon,Inc. to operate the
Harris County Sports Stadlti?.
"2. Does the attached Contract violate Art. 3; "'
Sec. 52, and Art. 11, Sec. 3, of the Texas Con-'
stltution?' ~
Cm the 29th day of May, 1961, the contract in qvestlon
_
was executed by the County Judge of Harrls County, acting
pursuant to an order of the Commlssloners' Court of Harris
County, the Board of Park Commissioners; created pursuant to
the provisions of Article 6C79e, Vernon's Civil Statutes,
and the Houston Sports Association, Inc.
The contract furnished with your request consists of 56
pages with numerous prdvlslons concerning various obligations
of the parties and therefore, for the purposes of this opinion,
we will summarize the pertinent provisions which relate to your
question.
As stated In the lease agreement, this contract was enter-
ed into for the reason that the "County, pursuant to the man-
date of the voters of Harris County, Texas, at a special
election held on January 31, 1961, 1s desirous of constructing,
owning and having operated, a stadium of the nature hereln-
after ldentlfled,upon the Leased Premises, for the use, welfare,
enjoyment, entertainment and convenience of the citizens of
the county."
Hon. Joe Resweber, page 2 (WW 1074)
Under the January lg6l election, the County was authorized
and empowered to Issue and sell general obligation bonds as
follows: (1) County Park Bonds In the amount of $3,000,000
to be used primarily In the acquisition of the land described
as the Leased Premises, and (2) County Park Bonds In the ambmt
of $15,000,000 to be used In the construction and completion
of the stadium, Including the building, dome and alr:cotid:ltlon-
lng. The County, under this agreement, leases to the Houston
Sports Association the property described therein for.conslder-
atlon of sufficient rentper year as will equal the amount
which will be required by the County of Harris to make pay-
ments under the amortization schedule on the $15,000,000
bonds aforesaid and the Houston Sports Association acquires
"the exclusive right to possess, use, occupy and control the
Leased Premises" during the term of the lease.
The commissioners' court Is a court of limited jurlsdlct-
ion and has only such powers as are conferred upon it by the
Constitution or statutes offthis State, either by express terms
or by necessary implication." Childress County,.viState, 127
343, 92 S.W. 26 1011 (1936); Hill Sterrett 252 S.W.2d 766
(Clv. App. 1952, error ref., n.r.eY'. on Rosinberg
j R. er v v. Lovett,
173 S.W. 508 (Clv.App. error rei.) p . Hall, 2tm
S.W. 289 (Clv. App.
Sections 1 and 4 of Article 6081e, Vernon's Civil Statutes.
provided as follows:
"Sec. 1. That any county.or any Incorporated
city of this State, either Independently or incoopera-
tlon wlth.each other, or with the Texas estate Parks
Board, may acquire byegift or purchase or by,&nde&ation
proceedings, lands to be used for.pub1l.cparks and
playgrounds, such lands to be situated In any locality
In this State and In any slzed,ttiactsdeemed suitable
by the governing body of the city or county acquiring
same; provided, however, that la?ds to be acquired by any
such city or county for said purposes may be, In the
discretion of the governing body thereof, situated
within the State, either within or without the boundary
1Mts of said county and within the llmlts of said county
wherein said city lies or Is situated."
"Sec. 4. The management in charge of any park
created by authority of this Act shall have the right
to sell and lease concessions for the establishment
and operation of such amusements, stores, filling
stations and all such other concerrs are are consls-
tent with the operation of a public park, the proceeds
Hon. Joe Resweber, page 3 (WW 107&j
of such sales and rentals to be used for,the lmprove-
ment and operation of the park,."
Relating to county park properties and facilities,
Sections 9 and 10 of Article 6079e, V.C.S., authorize the
Park .Board,with the approval of the Commissioners' Cotit,
to enter.lnto any.contract, lease or other agreement connect-
ed with or Incidental to or In any manner affecting the acqulsl-
tlon financing, construction, equipment, maintenance or opera-,
tlon of~any facility or facilities located on or to be located
on or pertaining to any park or parks admlnlstered,by the Board
and any such contract, lease or other agreement may be for
such length or.perlod of time and upon such terms and conditions
as may be prescribed therein. Section 12 of Article 607ge
recognizes as a park purpose the construction of "stadla,
coliseums, audltorlums, athletic fiel@,pavlllons and bulld-
lngs and grounds for assembly, togetherwith p&king faclllt+es
or other improvements Incidental thereto."
The park.under ooniideratlon, ,includlng,thest&d+um, Is
specifically to,be used for,'sportlng events, rodeos, '.,.
festivals, fairs, reor,eationalactivities of all klnds,.coh-
certs, conventions and civic events of all kinds" 'in tiddl- ..
tlon to the playing and conducting of professional baseball.
and football games.
In City of Fort Worth v. Barlow,.313 S.W. 2d 966 (Clv.
App. 1958, error ref., n.r.e.) the,court stated:
'In the light of the law, as followed
In the above cited cases, the city bad the
legal right to enter Into the lease contract
with Reach Company. The lease obligated the
Beach Company to do, in the public Interest,
what the city could have done through its own
servants. The lease was not Illegal. . . .ll
In City of Fort Worth v. Barlow, supra, the lease agreement
referred t b the above quote conaerned leasing by the city
of a sw&'beach, whereby the Beach Company was obligated
to make the area an outstanding swlrmnlngcenter.
Under the authority of City of Fort Worth v. Barlow,
assuming that the County of fEarrlshas the authority to con-
struct the stadium In question, It Is our opinion that the
lease agreement executed May 29th, 1961, obligates the Houston
Hon. Joe Resweber, page 4 (WW 1074)
Sports Association to do in the public interest what the County
could have done through Its own servant8 and, In the event
that the County Is authorized to construct the stadium In ques-
tion for the purposes stated above, the lease Is legal. There-
fore the question resented Is whether, pursuant to the provls-
Ions of Articles t&e,,.and 6079e, V.C.S., the County has the
authority to-construct a stadium on a park owned by the County
to be used In the conduct of professional baseball and football
games, sporting events, rodeos, festivals, fairs, recreational
activities of all kinds, concerts, conventions and civic
events of all kinds.
In discussing public parks, the court stated In King v.
Sheppard, 157 S.W. 26 682 (Clv.App. 1941, error ref., w.o.m.);
"In almost every jurisdiction, both state
and federal, the courts of this country have held'
that the Legislature or the Cdngrkss may make ap-
propriations to purchase land and maintain publlc~
parks without any specific designation of such
power In theltirespective constitutions. These
decisions, although recognlzlngthat in the ,memory
of m8n now living the proposition of taking land,
for a compensation for public parks may have been
regarded as a novel exercise of legislative power
and although many things which In the Immediate
past uere regarded as luxuries, or altogether unknown;
l!=Y have become necessities, hold that the
establishment of public parks affect the health,
comfort, pleasure, taste, education, and the mental
and physical health of the people, and are.thus
cond=lve to the public welfare of the people. . . .
.. . .
I w . . as used In modern and presenttimes
ln APerica the term 'park' usually signifies an
open or lnclosed tract of land set apart for the
recreutlon, and enjoyment of the public; or, 'In
the -era1 acceptance of the term, a public park
Is s8ld to be a tract of land, great or small,
dediuted and maintained for the purposes of
pleamre, exercise, amusement, or ornament; a
place to which the public at large-may resort
to fearrecreation, air, and light.'. . ."
and held that the Legislature was authorized to make an appro-
priation M the purchase of the land now constituting the
Big Bend I&tlonal Park and to transfer It to the United
States government.
Hon. Joe Resweber, page 5 (WW-1074)
Wketilse, In Conley v. Daughters of the Republic, 106 Tex.
80, 156 S.W. 197 (1913), the court held that the State had the
authority tomacquire title to the Alamo property and to place
that property In the'custody of the Daughters of the Republic,
a private corporation.
In Clty~of Dallas v. George, Tex. 169, S.W.
2d 473, ny whe thxldlty of a &tract be-
tween the City of Dallas, State Fair of Texas and R.B. George,
whereby George agreed to advance a sum of money for the use
of the State Fair of Texas In building a racetrack on property
belonging to the City of Dallas which the State Fair of Texas
was entitled to us@ exclusively.
For additional Texas cases on this question see City of
Port Arthur v. Young, 337 S.W.2d 385 (Clv: App. 1931, error
Is v. City of Fort Worth, Tex.-, 89 S.W. 2d~
.
Aqaamsl Land Co. v. City of Cape Glrardeau, 142 S.W.2d
332 (Sup.Ct. of Missouri No. 2, 1940) involved an attack on
the expenditure-of bond proceeds for a "public park", the erec-
tion of "community building and stadium with Indoor court fcr
games and community activities and for landscaping and grading
the grounds, building a race track, athletic field, drives,
entrances, etc." The court In that case held that such con-
struction was a~proper park usage, stating:
"There Is no doubt In our minds about the
fact that the contemplated athletic facilities come
within proper park usage. It was ruled In Miller'
v. City of Columbia, 138 S.C. 343, 351, 126 S.E.
484, that an athletic stadium could not be built
In a certain public park In that city, but that
was because such use would violate restrictive
covenants contained In the private grant by which
the park was dedicated. In the Instant case the
large arena building, with a floor area of 86 feet
by 126 feet, and a stage 20 feet by 60 feet, Is
adapted %o public speaking of an educational rellg-
lous or political nature, theatrical and musical
entertainments, dances and Indoor athletics. Another
hall ln the building will accomodate smaller gatherings,
banquets and exhibits of various kinds. We see no
objection to that. . . ."
For additional authorities see annotations 144 A.L.R. 487-513.
Honorable Joe Re$weber, page 6 (WW-1074)
In view of the foregoing authorities, it Is our opinion
that the consttictlon of the stadium In question Is a proper
park usage and Is within the authority of the Commissioners'
Court of Harris County, pursuant to the provisions .of Artlcl~es
6081e and 607ge, Vernon's Civil Statutes.
Section 52 of Article III of the Constitution of Texas
provides:
"The Legislature shall have no powerto
authorize any county, city, town or other
poll$lcal corporation or subdivision of the
State to lend Its credit or to grant public
money or thing of value in aid of, or to any
Individual, association or corporation what:
soevfsr,or to become a stockholder In such ._
corporation, as~oclatlon or company; . .~.I!.
Section 2 of A&lcle XI of the Constitution ~of Texas
pro&des:
'INo county, city or other..plutilclpal
corporation shall hereafter become a subscriber
to the capital of any private corporation or
aeeoclatlon,.or make any appropriation or
donation $0 the same, eon In anywise loan Its
~,cmdlt; but thls~shall pot be construed to in
any way affect any obligation heretofore under-
taken pursuant to law."
As noted above, the lease contract uad&conslderatlon
calls for a consideration of approximately $15,000,000 and
the'Houston Sports Assoclaton is obligated to do $n the
public lntereat,what the County could have done through Its
own servants. Therefore, the lease contract Is not In.
violation of.,Sectlon52.0f Article III .of the Constitution
of Texas. City of Fort Worth v. Barlo& sunra.
In mv. T8X. 338 s.w.za
133 (1960), the City of Beaumont aTthe Stx'of Texas agreed
to finance the removal of a span of railroad from Its location
In the city to another. The City was to pay all expenses of
the project In excess of $550,000 and the State was to have
the work done and was to contribute $550,000 toward the.expense.
Certain taxpayers sought to lnvalldate~the contract. The
court held, In construing the provlslosn of Section 3 of
,,!
Honorable Joe Resweber, page 7 (WW-1074).
Article XI or the Constitution of Texas:
"
. . .'Under the Contititutionof 1869
and a statute enacted by the Legislature
In 1871, the counties and munlclpalltles
of Texas were'-authorizedto aid such construc-
tion by taking stock In and making loans
or donations to railroad companies. The
primary purpose of Article XI, Section 3, Is
to deprive these political subdivisions of
that power. It does not prohibit all business
dealings with private corporations and asso-
ciations, but mlnlclpal funds or credit may
not be used simply to obtain for the community
and Its citizens the general benefits resulting
from the operation of such an enterprise. On
the other hand an expenditure for the credit
accomplishment of a legitimate public and
municipal purpose Is not rendered unlawful by
the fact that a prlvaiely owned business may
be benefited thereby.
The contract In question does not seek to have'th.e'.
County become a subscriber to the capital stock of any.prl-
vate corporation 43or'to make any appropriation br donat+
to any private corporation nor otherwise loan Its credit.
On the contrary, the:County of Harris Is receiving a valuable
consideration from the Houston.Sp6rts Association and.the
Houston Sports Association Is obligated to carry out the
public purpose:.here&oforestated. It Is, therefore, our
opinion that the contract In question does not violate the
provisions of Section 3 of Articl8 XI of the Constitution
Of 'FeXaS.
The lease contract executed by the County of
Harris and the Houston Sports Association, Inc.,
Wh8r8bJrthe County Of HarPi leases t0 Houston
SpOtiS A88OCiatiOn a StadiUUl located On COUnty
owned property for the purpose of conducting
therein sporting events, rodeos, festivals,
fairs, recreational activities of all kinds,
Honorable Joe Resweber, page 8 (WW-1074).
concerts, conventionsand civic events of
all kinds, in addition to the playing and
conducting of professional .baseballand
football games, Is valid.
Yours very truly,
WILL WILSON
Attorney General of Texas
Assistant
JR:ms:mfh
APPROVED:
OPINION COMMITTEE
BY W. V. Geppert, Chairman
Milton Richardson
Houghton Brownlee, Jr.
Sam Wilson
Llnward Shivers
REVIEWDFORTHEiATTORNEYGENERAL
BY: Morgan Neesbltt.