L




          THEA'ITORNEYGENERAL
                         OFTEXAS




    Ron. Austin F, Anderson        Opinion No. V-1219
    CFlmlnal Dlstrlct Attorney
    San Antonio, Texas             Re: Whether Bexar County
                                       may Issue tl.mewar-
                                       rants for purchase
    Dear Mr, Anderson:                 of right of way,
             In your letter of June 27, 1951, you advise 1~
    us that Loop 13 Is the name given to the highway that /
    connects the various military Installationsin and
    around San Antonio, that the proposed link south f%om
    Fratt, Texas, hassnever been completed although a
    right of way has been purchased by the county on plans
    submittedby the State Bighweg Department,and that
    the Highway Department has now requested the purchase
    of'additional right of way by the county In view of'
    the expected traffle flow over the proposed link, You
    further state that the county does not have funds on
    hand with which to purchase the additionalright of
    way, and that It is desired to issue time warrants
    therefor.
             It appears that the following two Orders
    were enacted by the Bexar County CommlssloneraDCourt
    on May 25, 1951 (minutesomltted)n
            "It I.8ordered by the Court that hav-
        ing been informed by person and by petitiona
        that the State of Texas and the Federal Qov-
        ernment have msde plans to widen irna fmpove
        U, S. Xwg. #81-InterstateRoute from the
        Austin Hwy. at Fratt to oonneat with the Ex-
        press Highway in San Antonlo, with the County
        furni~hlng adaitfonal.right-of-way of 110 Ft,
        vlae ana approximately3-3/U miles lo
        that constructfonof Loop 13 ma U. S. %     so
        South from Fratt to U. S. 90 by the State
        Hlghway Department vlll be completed, that
        In order to obtain safd right-of-way,war-
        rants may be issued, does hereby declare
        that an emergency exfsta."
                                                        4




Hon. Austin F. Anderson, page 2 (V-1219


         "It is ordered by the Court that In
     order to purchase right-of-mayfor addl-
     Mona1 right-of-wayneeded tomcomplete
     Loop 13 and U.S. Hwy. 81.South from Fratt
     to U.S. go, that an amoat not tb exceed
     $50;000.00 of Road AndyBridge Warrants be
     isstxea to cover the purchase of said
     rlght~s-of-way."
         In view of these facts, you ask the follow-
ing questions2
         "1. May~the Conmdssianers~Court ls-
     sue $50,000.00Road axidBridge Warrants
     as a Rational Emergency measure?
         "2. If the first question Is answer-
     ed In the negative, under what cadi-
     tlona may such warrants be issued?"
         In ~yourletter of request you briefed the
law points involved, and you cams to the concllusion
that such time warrants could not legally be Issued
without an election. We agree vlth your ooneluslon.
         Section 1~of Bouse~Blll 106, Acts 51st Leg.,
R.S. 1949, ch. 36, p. 67 (Art. 2368f, V.C.S.), reads
as follows:

        "Section
        -.-    _ 1. In all counties having a
    popular;lonin excess of three hundred thou-
    sand (300,000)inhabitantsacoordlng to the
    last preceding or any future Federal Census,
    the ConmdsslonersCourt shall have no au-
    thority or power to Issue time wants    un-
    tll and unless the same h8Ve been authorized
    by a majority vote of the qualified electors
    who own taxable~property in the county and
    hare duly ~renderedthe,s8me for taxation
    voting at an election therefor, such elec-
    tion to be held under the authority of 8nd
    In accorclanoewith the provisions of Chapter
    1 of Title 22 of'the~Revised Civil Stetutes
    of Tex8s~of 1925. provided,,that in case
    of DublIe calamlts caused by fire. flood,
    storm. or to moteat the onbllc health. or
    In case of unforeseendamaRe to Dnblic
    yroDerts, machinery or eaulmakent,the
Hon. Austin F. Anderson, page 3 (v-1219)


     Cum&ssioners~'Court
           . _ ..        may issue spch-time
                                           .
     warrants m tne aggregate amoum or noz
     exceeding Flfty.ThonasndDollars ($50,000)
     amllg~ any one calenbr year as are neces-
     sary to,urovZdefor .the-ldiate reualr,
     presewation or nrotectlon~ of rmbllc m D-
     erti. and the lives and health of the citi-
     zens of the county without the necessity
     of such election." (Emphasisadded through-
     out.)
         Under the 1940 Federal Census, Bexar County
had a population of 338,176 inhabitants, The Final
195CFederal Census gives the county a population of
500,460, There can be no doubt that Bexar County Is
severed by the statute quoted above.
         It is evident, under the statute, that any
tims warrants Issued by Ekxar County must be voted
unless there Is a situation that comes within one of
the exoeptlons specified therein. As you point out
In your letter, If one or more of the following three
exceptions:
         a,   In Base of public calamity aaused
              by fire, flood, storm,
         b.   To protect the public health, or
         c.   In case of unforeseendamage to
              public property, maohlnery, or
              eqW+=t   s
are present, then the Commlssloners~Court, without
the neoessity of an eleotlon, may Issue tiplewarrants
for the following purpose:
         the llmaealaterepair, preservationw
         protection of public moperty, and
         the lives and health of the citizens
         of the connty.
       ~'As to the first exception, the Supreme Court
of Teas, In the ease of Jones v. Williams, 121 Tex,
94, 45 s.w.28 130, 131 (1931),defined the word
%alamltg” a8 follows:
Ha.   Austin F. Anderson, page 4 (V-1219)


          ”
                  The w0ra tcalumltyfindl-
      Gates &'s;lpposesa somewhat contlnu-
      ous state, produced not usually by the
      direct agency of msn, *but by natural
      causes, such as fire, flood, tempest,
      disease,' etc."
         The facts as presented show no public ca-
lamity present, &nd the orders of the Commlssicmers~
Court show no such calamlty. It certainly cannot be
said that the right of way must be purchased because
of fire, flood, or storm. There has been no public
calamity as set forth In the statute.
         As for the protection of the public health,
we agree with you that,the'prrrchaseof the right of
way and the constructionof the highway would not
promote the public health. Of course, In a broad
sense, an Improved highway may ptotect the pub110
health. However, we think that the statute clearly
contemplatesemergency conditions, such as epidemic
or plague.
         As to the third exception, you state that
there Is no known damage to public property, maahin-
erg, or equipment.
         If any of the conditions outlined In the
three exceptions are present, then time warrants may,
without an election, be Issued "for the lzmuedlate
repair, preservationor protection of public property,
and the lives and health of the citizens of the
county." This purpose show that the point of the
exceptions la to permit the preservationof the
status guo (as it existed prior to arrival of the
emergency conditions set out In the exoeptions).
It Is our opinion that neither the facts nor the
orders of the Conmdssionersf Court show any such
emergency condition.
         You are advised, In answer to your first
question, that the Commlssloners(Court has no au-
thority to Issue the time warrants In question vlth-
out an election as provided in Article 2368f.
         In your second question, you ask~~~t;&it
conditions may such warrants be issued.
facts as presented, such warrants could be Issued
only after authorizationby a majority vote of the
.




    Hon. Austin F. Anderaon,'pnge5 (V-1219)


    quallf%ed property taxpaying voters at an election
    &uly called and held as required by the statute.
             The ooncluslonaannounced herein are en-
    tirely In harmony with those expesse8 by you in
    your very able brief.


                Under the fads as submitted,the Com-
            missioners' Court of Bexar County may not
            leetiethe tlms warrants In questlon for the
            purchase of right of way unless the 8ame
            is authorized at an eleatlon called and
            held as provided In Article 2368f, V.C.S.


    APPROVED:                        Yours very truly,
    Everett Hutchinson                 PECEDAIIIEL
    Executive Assistant              Attorney @enera
    Charles D. Mathews
    FirstAssistant
                                     BYQeorge W. Spsrks
    QUS-S                                      Assistant
