Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
I
Honorable John R. Shook
Grlminal Distriot AttOlTmy
San AntaniO, Texas
Dear Sir; AttentiOSll &‘.
o? ArtloXe EMOh,
statutes, $6 an
opinion of thin depert-
ed bee bsen rsoalved.
or Artlols lmvh or
of Texee Of 19&E, en
t any 9ountp may ab-
on or purohare land for
such county, oould euoh
nnty therefor?w
rtiole ta whioh you refer (Astiole 1869h,
R. 0. S., 1985) does not give the ofamaii~loners oourt suoh
authorlt~y, either arpre86ly or tipliddly, and the To&m
appellate odurte have aonsietentlpadhered to the prinolpl.6
that the oomnlssion%reoourt oan ereroies only auah authar-
ity aa is conterred upon them by the Gonetltutlanand the
statutes of thP6 State+
Ronorabla John R. Shook, paga Z
Bland v. Om, 39 S.W. 558;
Xill~OU~un~y~4Lampaaas County,
-,
h’unn-“;pl~rau’~bliahing
Coqany v.
Hutohison County, 45 S.W. (2d) 651;
Hogg v. Campbell, 48 S.W. ad) 5131
Ladman ‘I.State, 97 S.W. t2d) 8641
El PM; County V. Elam, 106 3.W. (8d)
i
Howard V* Banderron Ccmty, 116 R.W.
Dod,!i”!.‘~!k&izi,,118 S.W. (2d) 081.
Counties obtain the power and authority to dlspoae
of their real a&ate by tha provisions of Artlola 1377, Ra-
vised Civil Statuhae of 1OeS, whloh reads a8 follawar
*Artdale X397. The oowaieslonarsoourt
may, by an order to be antarad on its ruinutae,
eppolnt a aammIqaion%rto eel1 and dlopoaa of
any real estdtcl OS a oounty at pub110 euatlon,
The deed of auoh aomraisalona’r,made in aontom-
ity to auoh order for and in behalf of the oounty,
duly aoknowledgadand approved and reoorded shall
be suffloientto oontay to th% purohaaaraall
the right, tltla and Interest and estate whiah
the county mey have in ana to the premises to ba
COnveyad* Kathing oontained In thfa artiala
shall authoriea any oommIssion%rsoourt to dia-
posa of say lands @van, donated, or qxantad to
suoh aounty for the purpose of eduoation in any
other manner than shall be.dlrsoted by law.”
The oonetruoticagenerally plaaad upon this statute
wea laid down by Chief Justiae Roberta In an asrly Taxaa aa8a
08 r011ower
?!The@mare1 doctrine la, that a8 the aounty
court is tha agent of tha aountg, in its oar rata
oapr,oIty,it muat oonform to the ada presorrbed
for Its aotlcn In tha ax%roIaa or the powers oon-
ridad ta ita The psesaribing of a mode of axaraie-
ing a power by auoh 8ubordinatea@moiee of the,
Govern&exitbaa often been hsld to be a reatriotion
to tkt tsOda‘* FerSuson Y. Wlalaell,47 T’ex.421,
(18771‘e
2
Honorable John R. Shook, page 3
In the oase from whioh we have quoted, the Supreme
cturt set aside a deed by whioh the oommissloneraoourt at-
tempted to transfer title to some of the oounty'e real es-
tate in satisfactionof a clsin against the oounty.
Shortly after the above ease was deolded, Justioe
Stayton in Yooters V. Eall, 01 Tex. 15, (lSS4) reaffirmed this
oonstruotlonond held that oounty land could be sold only in
the manner provided by statute, and oould not be given away.
Thereafter the Colurtof Divil Appeals in two oases
deolsred that the oounty oosnniasionersocurt has no author-
ity whatsoeverto donate any of the oounty's real estate to
any person for any purpose. Llano County v, Knowles, et al.,
29 3. r. 549 and Llano County V. Johnson, et al., 29 S.W. 56.
The following language was used by the oourt in
both these casea:
"The oomaiasionerst oourt of the oounty oooupy
towards its property a trust relation, and they oan
only dispose of its property in the aanner required
by law, and for purposes that are in keepin with
the trust they reRresentr They have no right to
donate the ocuntg property, or dispose of it 80 as
to virtually amount to a donation. It is a trust
estate, and the prlnoiptee of equity will not per-
mit them to be liberal and generous with property
they do not own, end whioh they hold in trust for
Rublio purposes."
A rnoent ass8 by the Commiseion of Appeals shows a
continuedadherence to this prinolple. 9ee Dreaben v. Xhite-
hurst, (Cona. App., seotion A, 1934) 66 3. W. (2d) 1025.
This department has uniformly placed the same construo-
tion upon this statute thnt has been placed upon it 3y the oourts.
We enolose s oopp of Opinion PO. O-1779, in whioh the power of
the oommisslonereoourt to donate or-nntyreal estate is consi-
dered, and in which this department held that a county nay dis-
pose of its land only in the menuer presoribed by statute.
The Forty-sixth Leeieleturedeviated slightly from
the re;auiremant'th,at
county lands be sold only at publio auotion.
By .artiole52420, Revised Zivll Statui.es,enacted as House Bill
I
Ronorable John R. Shook, page 4
30. 922, Aots of 1939, oountias are authorized to sell ex-
oeas real estate to the Federal Gwernment et a private
sale, for e fai.roonsideratlon. An outright donation oan
hardly be oonsldereda aomnlianoawith the requirement that
a fair oonsiderntionbe paid and we know of no statute or
conetitutionalprovisio~n ws;iohpermits a aounty to waive pay-
ment of a fair considerationfor oounty owned real a&ate
under any oiroumstenoes.
.%nyother method of dispoainp,of such land by the
oonuaisalonersoo?lrtwith6ut oonaiderationwould be subject
to the same lt~itr.tions,and would likewise be beyond the
powers of the oommiseioneraoourt.
You are, therefore,respeotfullyadvised that It
is the opinion of this departmentthc2tyo::x!question thould
be answered in the negative, and it is 60 answered.
Your8 very truly
ATTORREYGENERAL OF TEXAS
Peter Msnlroaloo
Aasiatant
PMrdb API’ROVEDsEP
30, 1940
u.u
ATTORNEY GENERAL OF TEXAS