Untitled Texas Attorney General Opinion ( 1940 )

Opinion No. O-1805
Re: Does the Commissioners Court
have the authority to grant a
franchise to the Central Power
& Light Company to cover County
of Brewster, Texas?
Your request for an opinion on the above stated question has been
received by this office.
The powers which the comnissioners court may exercise are defined
in the Constitution in the following language:
"The county cpmmissioners court, . . . with the county
judge, as presiw officer, shall compose the County Commis-
sioners Court, which shall exercise such powers s@ jurisdic-
tion over all county business, as Is conferred by this Consti-
tution and the laws of the State, or as may be hereafter pre-
scribed." (Article 5, Section 18, Constitution of the State
of Texas.)
The general rule governing powers and limitations of the county com-
missioners court -as set out by the Supreme Court in Commissioners Court v.
Wallace, 15 S.W. (2d) 535, reads as follows:
"'The commissioners court is a creature of the state con-
stitution, and its powers are limited -13 controlled by the
constitution and the laws as passed by the legislature.' Arti-
cle 5, Section 18, Constitution of Texas; Baldwin v. Travis
County, 88 S.W. 480, Seward v. Falls County (Tex. Civ. App.),
246 S.W. 728; Blank V, err, 39 S.W.'558."
Articles 2351through 2372f, Revised Civil Statutes, 1925, as amended,
set out the various powers and.duties of the commissioners court and.are too
lengthy to set out In this opinion. However, It should be pointed out that
none of the before-mentioned articles, directly or Indirectly, give the com-
missioners court the power to Issue a county franchise to an electric light and
motor power company.
Hon. A. M. Turney, Page 2 (O-1805)
In Texas Jurisprudence, Vol. 19, at pp. 876-879,we find the follow-
ing language in regard to franchises:
"TO be a franchise the right must be of such a nature that,
without express legislative authority, it cannot be exercised
... The legislative department of the government is the source
of the grant of a franchise, ... The legislature, unless con-
stitutionally inhibited, may exercise its authority by direct
legislation, or through agencies duly established having power
for that purpose."
It is a well-established rule that the commissioners court may exer-
cise only those powers specifically designated by the Constitution or the stat-
utes. (Mills County v. Lampasas County, 90 Tex. 606, 40 S.W. 403; Van Rosenberg
v. Lovett, 173 S.W. 508; Miller v. Brown, 216 S.W. 452.) Add to that rule
the fact that a franchise Is a very special privilege only given by direct
legislative grant or by a specially delegated agency, and we must reach the
conclusion that the county commissioners court does not have the power to grant
a county franchise to an electric company.
In the case of Edwards County v. Jennings, 33 S.W. 585, wherein a
county commissioners court attempted to contract for a water supply not only
for county purposes but for the use of private citizens, the Court made the
following statement:
"That the commissioners court would have the authority to
contract for a sufficient water supply for jail and courthouse
there can be no room for doubt; but when we have a contract not
onlv to su~ulv the necessities of the Dublic buildina. but to
supply the--generalpublic with water, &d providing ?;orspecial
privileges as to laying pipes, a very different question Is pre-
sented. Counties are political or civil divisions of the state,
created for the purpose of bringing government home to the peo-
ple, and supply the necessary means for executing the wishes of
the people, and bringing into exercise the machinery necessary
to the enforcement of local government. Counties, being compo-
nent parts of the state, have no powers or duties except those
clearly set forth and defined in the constitution and statutes
... Looking to the powers granted by the legislature by virtue
of the above constitutional provision, we find that no authority
is given the commissioners' court to enter Into such contracts
as the one sued on in this case,.. It is clear, therefore, that
the attempted contract was beyond the power and authority con-
fided In the county commissioners;..."
Therefore, it is the opinion of this department that the commission-
ers court would not have the authority to grant a franchise to the Central
Power & Light Company to cover the County of Brewster, Texas.
Hon. A. M. Turney, Page 3 (O-1805)
It should be pointed out t&at this opinion does not cover the right
of the county conrmissionsrscourt to grant easements over county roads and
property or the right of a utility company to secure easements under Article
1435 anh Article 1436, Revised Civil Statutes, 1925, as amended.
Yours very truly
ATl!ORNEYG!UERAL OF TEXAS
By /s/ Frederik B. Isely
Frederik B. Isely
Assistant
FBI:pbp:lm
APPROVED JAN 22, 1940
/a/ Gsrald C. Mann
ATpOPxNEYGENERALOFTEXAS