                      May 12, 1989


Honorable Ashley Smith             opinion No.   JM-1044
Chairman
Financial Institutions Committee   Re: Authority of a com-
Texas House of Representatives     missioners court to des-
P. 0. Box 2910                     ignate a new area of the
Austin, Texas 78768-2910           county   courthouse  for
                                   sales of real property
                                   (RQ-1677)
Dear Representative Smith:
     you ask whether under section 51.002(a) of the Property
Code a commissioners court, after having designated an area
at the courthouse for public sale of real property under a
power of sale conferred by a~deed of trust or other contract
lien, may subsequently change the place for such a sale to
another area at the courthouse. YOU also ask whether the
commissioners court may designate an alternate area for
times when the previously designated area may not be
accessible to the public.
     Section 51.002 provides that sales of real property
held under power conferred by a deed of trust or other liens
must be at public sale to be held between 10 a.m. and 4 p.m.
on the first Tuesday of a month at the courthouse.      This
section further provides for the giving of notice of the
sale and the manner in which notice shall be given. Section
51.002(a) was amended by House Bill 1504, Acts 1987, 70th
Leg., ch. 540, 8 1, effective January 1, 1988, to provide
the following additional provisions:
           The sale must take place at the countv
        courthouse in the county in which the land is
        located, or if the property is located in
        more than one county, the sale may be made &
        the courthouse in any county in which the
        property is located. The commissioners court
        shall desianate the area at the courthouse
        where the sales are to take olace and shall
        record the desianation in the real orooerty
        records of the countv.   The sale must occur
        in the desianated area.      If no area is




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Honorable Ashley Smith - Page 2   (JM-1044)


       desianated bv the commissioners court. the
       notice of sale must deS’lamto the area at the
       courthouse where the sale covered bv that
       potice is to take olace. an    th s e
       9.wur ln th t ar a   (Rmphasfs re&e%     ,"Ezr
       visions addtd byeamendment.)
     you note that your questions were prompted by the fact
that the first Tuesday'in July 1989, is July 4,1 a holiday
when many courthouses will be closed.     You state that a
number of counties have designated an area on the exterior
of the courthouse, some have designated the place of sale to
be at the courthouse door and others have designated an area
inside the courthouse. It is the latter group of counties
that pose the problem that prompted your request.
     A sale under section 51.002 "must be a public sale at
auction held between 10 a.m. and 4 p.m. or the first Tuesday
of a month."   The very purpose for a public sale and the
giving of notices thereof "is to secure the attendance of
purchasers and obtain a fair price for the property."
Reisenbera     Hankins   258 S.W. 904 (Tex.' Civ. App. -
Amarillo 19:;, writ dikmld). It is not difficult to imagine
that an area designated as the place for sale at the court-
house by the commissioners court may at some future date
become inaccessible to the public for numerous reasons. The
designated area may become unsafe for use by the public,
inaccessible due to remodeling or building of a new court-
house, and conceivably, the designated area may be destroyed
by fire or other calamity. If for any reason the designated
area becomes inaccessible to the public, serious questions
would arise as to compliance with the public sale reguire-
ment of this section. Given the fact that section 51.002
requires that the sale be public, it follows that the
commissioners court has the implied authority to formally
change the designated area for the sale at the courthouse


     1. In Roehler v. Pi neer Am. Ins. Co., 425 S.W.2d 889,
891 (Tex. Civ. App. - Fo% Worth 1968     no writ) the court
addressed the validity of a sale on Juiy 4, as follows:
           Neither the sale under the deed of trust
        statute, Art. 3810, Vernon's Ann. Tex. Civ.
        St., [now section 51.002(a)] nor the Holiday
        statute, Art. 4591, V.A.T.S., nor Rule 6,
        Texas Rules of Civil Procedure, prohibits a
        deed of trust sale, equivalent to a court of
        equity proceeding, being made on July 4th.




                             p. 5419
Honorable Ashley Smith - Page 3   (JM-1044)


for future sales when the previously designated site becomes
inaccessible to the public. Pursuant to the requirements of
this section any order of the commissioners court changing
the designated area must be reflected in the deed records of
the county.
     In your second question, you ask whether the commis-
sioners court may designate an alternate area for times when
the designated site may be inaccessible.
     Commissioners courts may exercise only such powers as
the constitution or the statutes have specifically conferred
upon them. Tex. Const. art. V, f 18; E&fro v. Shronshire,
566 S.W.Zd 688 (Tex. Civ. APP. - Eastland 1978, writ ref'd
n.r.e.).
     Section 51.002(a), as amended by House Bill 1504,
provides "the commissioners court shall designate the area
at the courthouse where the sales are to take place."    The
commissioners court is not expressly authorized to designate
an alternate site. Nor do we believe that the act may be
construed to give the commissioners court implied authority
to designate an alternate site to be used in the event that
the designated area is inaccessible. The bill analysis to
House Bill 1504 states that one of its purposes is to cure
the problem area of the existing law as to the "uncertain
location" of the sale. Bill Analysis, H.B. 1504, 70th Leg.
(1987). you furnish an example of how easily confusion may
arise as to a location by noting that where counties have
designated "at the entrance" to the courthouse as a desig-
nated site, questions are presented as to whether the site
is on the inside or outside of such entrance, or both. This
confusion could easily be avoided if the commissioners court
would specify, for example, "outside the north entrance" of
the courthouse, or the like.      Further, construction of
section 51.002 that would allow the commissioners court to
provide alternative sites, depending upon the weather,
holidays, or other events would not only be confusing but
also contrary to the intent of the legislature to make
certain the place of the sale.2



     2. While, as you point out, the cost of opening the
courthouse for the limited purpose of the sale may be a
consideration, this would appear to be a viable option since
it would be for a limited time on infrequent occasions.
Another solution, as you suggest, would be to designate the
place of sale at an exterior area of the courthouse.




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                                                                 !
Honorable Ashley Smith - Page 4    (JM-1044)


                      SUMMARY
            A commissioners court may change the
       area at the courthouse previously designated
       for public sales of real property pursuant to
       the provisions of section 51.002(a) of the
       Property Code.   The commissioners court is
       not authorized under such section to desig-
       nate an alterhate area for times when the
       designated area may become inaccessible to
       the public.




                                     JIM     MATTOX
                                     Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney~General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General




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