                                  QBfficeof toe Elttocnep QBeneral
                                              State of Eexae
DAN MORALES                                      March 13, 1997
 Al-TOHNEY
        G3ERAI.

   The Honorable Gommlo Barrientos                        Opinion No. DM-436
   Chair, Committee on Legislative and
    Congressional Redistricting                           Re: Whether state may operate an airport tbr the
   Texas State Senate                                     use of state aircralt and condemn land for that
   P.O. Box 12068                                         purpose ~~~-927)
   Austin Texas 78711

   Bear Senator Banientos:

            Youaskanumberofquestionsdirectedatleaming~~thestatemayacquireandoperate
   Rob& Muck Mmicipal Airport in Austi+‘, We understand that you are interested in the operation
   of the airport for the use of state aircratI only and are not asking whether the state may operate an
   airport for non-state aircraft. We note at the threshold that any applicable federal laws must be
   considered in connection with the proposed acquisitior~~ You first ash whether thera is any
   constitutional or statutory authority that allows or prohibits state ownership and operation of an
   airport.

            We tind no constimtional or statutory authority that prohibits state ownership and operation
   of an airport, and section 21.101 of the Transportation Code in fact contemplates that a state agency
   might have authority to establish an airport. This provision states as follows:


                   (a) The department [of Transportation] may loan or grant money to a
               state agency with a governing board authorized to operate an airport or to a
               governmental entity in this state to establish, cwstruct, reconstruct, enlarge,
               or repair an airport, airstrip, or air navigational tkility if:




          ‘The City of Austinplansto relocateits ahporthm Robat MuellerMunicipalAirportto the fcrma site of
   ~AirF0lWBll.X.

           ~thestatedoesecguirrRobettMuellerAirport,youalsowishtolmowhowtheststemightbelcgaYrboundto
   prohibittheuseofthstaiqxxtby    CommQcia pasager and&eightdines. Sii            you do not give my fdditional
   infamstionaboutthisg~~ic,we~lmabletoaddressifexc+pttaraotetheposslblerelevancyoffederallaw.                See
   general& CityofDallas  v.SouthwestAirlinesCo.,371 F. Supp. 1015,1026 (N.D. Tex 1973). affd494F&i 773 (5th
   Cr. 1974) &cm Fii as recipientof federaltimds,is subjectto certainfederalpmtirms). This question,as well Bsmy
   otherissueof federallawthatmy be rekxmt, is beyondthescopeof thisopinion
The Honorable Gonz.aIo Barrientos - Page 2 (DM-436)




                   (1) the money has been appropriated to the department for that
                purpose; and

                     (2) providing the money will:

                         (A)   best serve the public interest; and

                          (B) best discharge the governmental aeronautics fimction of the
                     state or its political subdivisions.3

         You next ask whether spdic statutory authority is ne4xsary for either the General Services
Commission or the Aircraft Pooling Board to own and operate an airport, and whet&r such authority
currendy exists. Chapter 22 ofthe Transpodon Code gives cities and counties specific and detailed
authority to establish and operate public airports,’ but we do not believe such comprehensive
statutory authority is necessary for a state agency to own and operate an airport for the use of state
aircraft. A prior opinion of this office concluded that the Parks and Wildlife Department was
responsible for maintaining airports built in’state parks.’ The Aircratl Pooling Board is required to
“operate a pool for the custody, control, operation, and maintenance of aU aircraft owned or leased
by the &ate.* Moreover,

                The board may acquire appropriate fkcilities for the accommodation of all
           aircraft owned or leased by the state. The facilities may be purchased or
           leased as determined by the board to be most economical for the state and as
           provided by legislative appropriations. The facilities may include adequate
           hangar space, an indoor passenger waiting area, a flight-planning area,
           communications facilities, and other related and necessary fkilities.’

This is a close question, but we believe that the Aircratt Pooling Board’s authority to acquire
“appropriate fkilities” for the accommodation of state akcraft includes authority to acquire an airport




       'Seeid.0 22.020@)(l).




       6tiv’tCode§   2205.032(a).

       'Id.
          $ 2205.034(a)(emphasisedded).




                                                  p.   2429
 The Honorable Gonzalo Banientos        - Page 3 (DM-436)




 for the use of aircratl owned or leased by the state.’ The adoption of legislation expressly authorizing
 the board to own and operate an airport for the use of state aircraft would remove any doubt about
 the board’s authority.

        You ask several questions about the condemnation of land for an airport. The state has the
right to appropriate property for a public use, subject to the property owner’s right to adequate
compensation.9 Article I, section 17 of the Texas Constitution provides that “No person’s property
shah be taken, damaged or destroyed for or applied to public use without adequate compensation
being made, unless by the consent of such person . .”

         You ask whethex either the Ainxaft Pooling Board or the General Services Commission may
initiate condemnation proceedings on its own authority. The power of eminent domain must be
conferred by the legislature, either expressly or by necessary implication, and will not be gathered
t?om doubttbl inferences.“’ The Aircraft Pooling Board may purchase or lease tkilities,” but it has
no express or necessarily implied authority to initiate condemnation proceedings. The General
Services Commission may exercise the power of eminent domain to obtain a building site if the
legislature has authorixed the particular building project. I2 Accordingly, neither agency may initiate
condemnation proceedings on its own authority.

        Your next questions concern section 2204.001 of the Government Code, which authorizes
the governor to pmchase land requkd by the state for public use. If the governor fails to agree with
the bmd owner on a price, the land may be condemned for public use in the name of the state. “On
the direction of the governor, condemnation proceedings shall be instituted against the owner of the
land by the attorney general or the district or county attorney acting under the direction of the
attorney general.“‘” You inquire about the legal standard for deciding that a given piece of land is
requimd by the state for a specific public use. The decision as to the particular land to be condemned
is within the condemnor’s absolute discretion, and the courts will not review the condemnor’s




                              219 S.W.Zd 70 (Tex. 1949); Attom GeneralOpinionO-3307 (1941).
       eTexmHighw~&p’tv. K’ebcr,

        ‘°CoastolSfatesGas Producing        309S.W.Zd 828.83 1 (Rx
                                   Co.v.Pare,                          1958).

        “Gov’t Code $2205.035.

       ‘*Id. $5 2166.055, .251;see alsoid 8 2166.002.

         “Id.5 2204.001(b);  seegeneml~ AttomeyGeneralO~inims WW633 (1959). WW-526 (1958). WW-I 19
(1957). O-3307 (1941) at 5 (conshluingformer
                                          V.T.C.S. art.5240, nowGov’t Code$2204.001).




                                                 P.     2430
 The Honorable Gonzalo Barrientos - Page        4    (DM-436)




 discretion in this respect, except where the condemnor has acted in bad faith or arbitrarily,
 capriciously, or fraudulently.”

         You inquire whether inverse condemnation case law indicates that alternative sites for the
 proposed public purpose need to be evaluated. Inverse condemnation case law does not address your
 questi~n,‘~ but to prevent questions concerning the selection of a site, it would be advisable for the
 Aircraft Pooling Board to give appropriate notices of a site selection, that all alternatives be
 discussed, and that the request for condemnation to the governor recite the basis of the request.

         You ask two questions that we will address together: whether legislative authorization is
required prior to action by the governor under section 2204.001, and whether a legislative
appropriation to the Aircraft Pooling Board or the General Services Commission would provide
sufficient authority for either agency to own and operate an airport or for the governor to initiate
condemnation proceedings under section 2204.001 of the Government Code.

         Legislative action is required prior to action by the governor pursuant to section 2204.001
ofthe Government Code. A legislative appropriation must be available to pay for the land, but the
legislature may not appropriate money tiom the treasury unless preexi&g law authorizes the
expenditure..” Thus an appropriation for the purpose of acquiring and/or operating an airport may
be made only to an agency that has express or implied statutory authority to own and/or operate an
shpt.    We have already decided that the Aim&l Pooling Board has implied authority to own and
operate an airport for the use of state aim&. Accordingly, ifthe legislature appropriated finds to
the board to acquire an airport, the board could either purchase or lease the airport itself or request
the governor to purchase the land or to initiate condemnation proceedings under section 2204.001
ofthe Government Code. Sii the General Services Commission lacks authority to own or operate
an airport, the legislature may not appropriate funds to the commission for that purpose.

         You ask whether the legislature may authorize the owner of land proposed for state
acquisition to impose a restrictive covenant” on the use of the property with a reversionary clause
to the owner, even ifthe owner contests the property acquisition through the courts. Assuming that



        “V&m         PipdineCo.v.Jawis,926 S.W.2d789 (Tex App.-Tyler 1996. writrequested),
                Earrex

        %%a pl-cply hasbeentakenforpublicusewithoutpropercxnldmmtionpromdings, theprqmy 0wnQ my
b&g anirweasem            tit inattempttc recowcrmpensationforthe  taking.Hublerv.             564 S.W.Zd
                                                                                  CorpusChristi,
816.820 flex. Civ. App.-Corpus Cluisti1978, writr&d nr.e.); see geneml~ Feltsv.Hanis County,
                                                                                           915 SW.2d 482,
484 (Tex.1996); S10tcv.Biggar, 873 S.W.zdII,13Crcx.1994).

        ‘%x Cast artIII,
                      § 44;AustinNat’lBankv.                          Attcm9 Gzercd Opinion
                                        Sbtypmi,71 S.W.zd242(Tex.1934);
H-944 (1977).

       “Youdonot~ithe~ctiivecovenanfbutwwill            asamKforpurposesofthisopinionthatitiscmsistmt
withapplicablelaw.




                                                p.   2431
 The Honorable Gonzalo Barrientos - Page 5 (DM-436)




 such conditions may be applied to land taken under the eminent domain power,” you also ask
 whether the legislature may do so by statute or by rider language attached to an appropriation.

         Under some circumstances, the state may condemn less that the &II fee simple title to land,
for example, a limited easen~# or a temporary construction easement.m It appears, however, that
you refer to the acquisition of the fee, subject to the possibility that it will revert to the landowner at
an undetermined time in the tirture ifthe restrictive covenant is violated. Although reservations of
property rights in the landowner are valid as limited easements, “[mlere promissory statements or
de&rations of future intentions by a condemnor are invalid.“*’ The courts hold that the effect of a
condemnor’s promissory statements regarding its future intentions is to prevent a landowner tiom
recovering all his damages in a single proceeding. o The landowner is entitled to compensation in
money at the time of taking, and is not required to accept the condemnor’s promise. to pay or act in
the t%ure.” Otherwise, he or she might be burdened with the delay and expense of fiture lawsuits
to compel the condemnor’s performance. u A reversionary right that may become effective at some
indeterminate time appears to be a promise to act in the t%ture, not a limitation on the property
i&rest acquired by the state. Such a promise would not prevent the landowner l?om receiving the
full value of the land as compensation or the state IYomacquiring the fidl fee simple title to the land.
Once the state held fee simple title to the land, it could not transfer it to the former owner without




       ‘?lahmq       clausesaretypicallyfoundin deedsof cmveyance,notin thedescriptionof thelandstakenunder
the powa of eminentdomain See Attcmq GeneralOpinionsM-675 (1987) (disarssingmtrktiw on use on land
coweyed to state),M-242 (1984) (univuxitycoaveyan~of laudto hospitaldistrictforhospitalpurposes).




        %‘eeV&m. 926S.W.2dat789;Peniue
                                     v.Cify
                                          ofA&          586S.W.2d 179 flex. Civ. App.-Fort Worth 1979, wit
r&d n.r.e.).

       “Whitev.NahunlGas Pipeline    Co.v.America,   444 S.W.Zd 298,300 flex. 1%9). A prwisicmgivingthe
landowner
        theexclusiverightto minefor gravelup to a certaindateccmtimteda reservation
                                                                                  of a pqx-ietq rightin the
        Id at 301.
landowner.

        %alem, 926 S.W.2dat 793;Coast01
                                      Indus.    592 S.W.M at 601; White.
                                           Water..,                    444 S.W.Zd at 300.

              444 S.W.2d at 301.
        “Whi:e,

        “V&m, 926S.W.2d at 793: White,
                                     444 S.W.2d at 300




                                                 p.   2432
 The Honorable Gonzalo Barrientos - Page 6 @M-436)




 consideration but could only dispose of it for adequate considerationx pursuant to legislative
 authorization.26

          Since we have considerable doubt that such a condition may be validly attached to condemned
 property, we need not consider whether it may be imposed by statute or appropriation, except to
 reiterate that a state agency may dispose of state-owned land only pursuant to legislative authority.

         You ask whether current law allows the state to be held liable for damages that result to
private property owners as a result of operations at a state-owned facility. We answer your question
in general terms. Specif?c instances of property damage must be addressed on a case-by-case basis,
in light of all the relevant facts and circumstances, and for these reasons, cannot be resolved in an
attorney general opinion.

         Because article I, section 17 of the Texas Constitution provides that property ahah not be
damaged or destroyed for public use without adequate compensation, an actual taking or physical
appropriation of property is not required for a property owner to receive compensation.n Issues of
damage to property have been raised in inverse condemnation suits. Where. property is damaged
rather than taken, article I, section 17 of the Texas Constitution allows recovery only ifthe injury is
not one suffered by the community in general.=

        A litigant may recover under article I, section 17 of the Texas Constitution by establishing a
nuisance.29 Recovery under this provision is not allowed where the damage in comrection with a
public structure was based on some act of negligence such as the negligent acts of an employeesa
The Texas Supreme Court has stated that the test is whether “the State intentionally petform[ed]
certain acts in the exercise of its IawRrl authority. . _ for public use which resulted in the taking or




       .+*reKCmst art IU, 5 5 1; Attomy Gcaaal OpinionH-472 (1974); see a&o I’arodcM Police
                                                                                          Oj7c.mAss‘nv.
                                                  1973,wtitrcfdn.r.c).
Ci~ofP~a&~,4497S.W.zd388(TexCiv.App.-Mouston[IstDist]

                                  175S.W.2d410.414 (Tex 1943);Conleyv. DmighkmoftbeRepublic.
        %eeLmfmv. CmwjordPockingCo.,
156S.W. 197,200(-k   1913);AttonwyGaralOpinionsJh4-391 (1985);Mw-62(1979);LettaopinionNo.96-106
(I 9%).

            915 S.W.Zd at484; Biggar,
       nFelxs,                      873 S.W.2d at 13

            915 S.W.2d at 484 (iverse oondemaation
       pFe/rr,                                   actionbasedon incxaxd hi&nay noise).

        ‘?Yhadev.CifyofDalla.  819 S.W.Zd 578,583 (TM App.--D&s    1991. no wit) (quotingCiyofAbilewv.
Downs, 367 S.W.2d 153,159 (-kc. 1963)).

        ~.819S.W2dst583(quotingIvcyv.Ci~ofTemp~.415S.W.2d542,543(Tex.Civ.App.-Austin1%7.
writrefd n.r.e.)).




                                                p.   2433
 The Honorable Gonza!o Barrientos - Page 7 (DM-436)




 damaging of p!ainti&’ property, and which acts were the proximate cause of the taking or damaging
 of such property.“”

         LialAity in tort for property damage exists only in extremely limited circumstances pursuant
 to the Texas Tort Claims Act, that is, !f”‘the property damage . . . arises Sam the operation or use
 of a motor-driven vehicle or motor-driven equipment” and the employee would be personally liable
 to the claimant under Texas law.”

         You next state that current law exempts property at municipal airports from taxation,
 inchx!ing leased facilities,% but allows property taxation of facilities privately owned which, though
 leased, operate on state property. You ask whether private facilities built on a state airport would
 be exempt from local property taxes.

        Article WI, section 1 of the Texas Con&t&on provides that a!! real property in the state,
“unless exempt as required or permitted by this Constitution,” sha!! be taxed in proportion to its
value. Article VI!!, section 2(a) of the Texas Constitution provides that the “legislature may, by
genera! !awa, exempt from taxation public.property used for public purposes.” Section 11.11 of the
Tax Code provides the fo!!ow!ng tax exemption for state property used for public purposes:

                   (a) Except as provided by Subsections @) and (c) of this section, property
               owned by this state or a po!itica! subdivision of this state is exempt f!om
               taxation ifthe property is used for public purposes.

                   (!I) [Land owned by the Permanent University Fund]. . .

                   (c) [Agricuhura! or grazing land owned by a county for the benefit of
               public schools under Article VI!, section 6, of the Texas Constitution] . . .

                   (d) Property owned by the state that is not used for public purposes is
               taxable. Property owned by a state agency or institution is not used for public
               purposes if the property is rented or leased for compensation to a private
               business enterprise to be used by it for a purpose not related to the
               performance of the duties and Smctions of the state agency or institution.



        “Shade, 819 S.W.2d at583 (quotiogStateV.Hale, 146 S.W2dl31,736    (Tex 1941)).

        *iv.    Prac.& Rem Cede 5 1,01.021(l)(A).

       “l-k4allleasedfacilitiesal municipalairportsarc exemptt?emad va!eremtaxation Attcmq Genera!Op!!ees
DM-188 andJM-464 addressthetaxationof realpropettylocatedat a municipalairportandleasedto a privateentity,
disckng the.zimadmm underwhichsuchproperty          maybe exemptfromad v&rem tax Attcmy GeneralOpiiom
DM-188(1992),JM-464(1986).




                                                    p.   2434
 The Honorable Gonza!o Barrientos -       Page 8     (DM-436)




         The test for public purpose is whether the public property is used primarily for the health,
comfort, and welfare ofthe public.% In addition, it must be shown that the property is held only for
public purposes and is devoted exclusively to the use and benefit of the public.” The lease of
publicly-owned property to private individuals for their own commercial purposes generally means
that the property is not used for a public purpose and is therefore not entitled to the tax exemption.M
However, the fact tha! public proper&y produces revenues does not prevent it Corn receiving the tax
exemption, ifthe property is used for a public purpose, so that some portion of the public has a right
to use it under proper regulations and the revenue inures to the public benefit of the governmental
entity.”

         Two prior opinions of this office considered whether a city was exempt from ad valorem tax
 on airport property leased to private entities. u These opinions address municipal airports used by
commercia! airlinea, but the standards they establish are relevant to your question. Attorney Genera!
Opinion JM-464 concluded that a portion of the airport leased to an individual who operated an
t+im& fite!ing fhcility was exempt from ad valorem taxation, while land sut-roundiig     theairportthat
was leased for private commercial and agricultural purposes was not tax exempt. Attorney General
opinion DM-188 construed Attorney General Opinion JM-464 “to require a showing that the use of
municipal aitp0t-l property is in dim% support of the city’s operation of the airport.“* Thus, a leased
city-ownedairaaftmairdenance~~wouldbetaxacemptaitwasintendedforuseinthesafeand
eEcient operation of a municipal airport. However, ifmost of the aircratI stored and serviced there
were brought in solely for the purposes of maintenance and storage and not used to transport
passengers and cargo to and from the airport,     the facilitywould not be used exc!usive!y in support
of the city’s operation of the airport, but instead to serve the private commercial interesta of the
lessee.” We cannOt determine in an attorney genera! opinion whether particular airport fk&ies
operated under lease by a private entity are used in direct support of the operation of the airport and
are therefore tax except, because the answer to such questions requires the resolution of fact
questions.


        “A&4Gww~Ind&hDisfv.Ci~ofB~             184S.W.2d914@x      1945);AUomeyGmaalO@himDM-188
(1992)at3.

                                                            (Xx. 1978); AttorneyGenemlOpinion
        ?%tte&eY.GurGaastWadeDiqxwlAuth.,576 S.W.2d773.778-79
DM-188 (1992) at 3.

       ‘6cmndPmiric    Hosp.Auth.v.Da&as CountyAppmisalDirt.,  730 S.W.Zd 849,851 flex App.-Dallas 1987,
wit r&d ar.e.); *cc Attmey GeneralOpinionsDM-188 (1992) at 3, DM-78 (1992) at 3.

      “LowerColoradoRiver
                        Auth.v.ChemicalBank & Trust Co..190 S.W.2d 48 (Tex. 1945); SIatev. Houston
        PmwrCo.,609 S.WZd263.268-69flex Civ. App.--CorpusClvisfi1980,u7itref’dnr.e.).
Ltghttng&



        ‘pAttomyGemm10piionDM-188(1992)at5.

        ‘Vd.




                                                p.   2435
The Honorable Gonza!o Barrientos - Page 9 (DM-436)




                                       SUMMARY

                Tlte Aircraft Pooling Board is aut!roriaed to own and operate an airport
           for the use of state aircrak Neither the Aircrat! Pooling Board nor the
           General Services Commission may initiate condemnation proceedings on its
           own authority. An appropriation for the purpose of acquiring and/or
           operating an airport may be made only to an agency with express or implied
           statutory authority to own and/or operate an airport. If the legislature
           appropriates Smds to the AircraS Pooling Board to acquire an airport for the
           use of state aircraft, the board could purcbaae or lease the airport itself or
           request the governor to purchase the land or initiate condemnation
           proceed& under section 2204.001 of the Government Code. The decision
           as to the pa&&r land to be condemned is within the condemnor’s absolute
           discretion, reviewable by the courts only when the condemnor has acted in
           bad faith or arbitrari!y, capriciously, or fraudulently. The legislature probably
           could not authorize the owner of land proposed for state acquisition to impose
           a reshicnve covenant on the use of the property with a reversionary clause to
           the owner.

               Whether the state may he held liable under article I, section 17 of the
           Texas Constitution or under the Tort Claims Act for damagea that result to
           private property ownera aa a result of operations at a state-owned facil!ty
           muat be determined on a case-by-case baais.

               Airport property leased by the state to a private entity may be exempt
           from ad valorem tax if its use is in direct support of the state’s operation of
           the aitport. Whether a particular leased facilhy is exempt Sam tax depends
           upon the resolution of fact questions.




                                               DAN     MORALES
                                               Attorney General of Texas

JORGE VEGA
Fist Assistant Attorney General

SARAH J. SH!RL.BY
Cltair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney Genera!




                                                p. 2436
