                 THE    ATTORSEY          GESEKAL
                            OF   TRS,~S



                            September 20, 1989



Honorable Dale Hanna               Opinion No.   JM-1097
Johnson County Attorney
First Floor, Courthouse            Re: Whether Johnson County has
Cleburne, Texas   76031            the option of creating a county
                                   industrial commission    instead
                                   of a board of development
                                   (RQ-1692)

Dear Mr. Hanna:

     You ask three questions regarding the application    of
sections 381.001 and 381.002 of the Local Government Code to
Johnson County. Your questions are as follows:

                1. Does a County with a population census
             figure of 67,000 in 1980 have the option of
             forming a County Industrial Commission  under
             Section 381.001 or is it required to form a
             Board of Development under Section 381.002?

                2.  If Section 381.001 is available,   can
             the County expend funds from the general fund
             to promote industrial development without  an
             election pursuant to Section 381.002?

                 3.' If Section 381.002 is the exclusive
             choice, what options are available      to a
             County, with a population   census figure of
             67,000 in 1980, as to appropriating funds for
             industrial growth and development?

     Your questions  are based on the law prior to its
amendment by the 71st Legislature.    The adoption of Senate
Bill 24, which amends section 381.002, Acts 1989, 71st Leg.,
ch. 1060, § 2, at 4306, has changed both the sense of your
questions and the answers.1   Your questions numbered one and
three indicate the population   of Johnson County, and prior



        1.    The effective date of Senate Bill 24 was August 28,
1989.
Honorable Dale Hanna - Page 2   (JM-1097)




to the amendment the population was a significant     consi-
deration.   However,   the amendment    deleted   population
brackets that had limited the application of section 381.002
to counties with a population  of more than 50,000. We now
conclude that any county may act under either of the
sections.

     First, we will examine the provisions      of the two
statutes about which you inquire.    Section 381.001 allows
the county   judge of any county to appoint a         County
Industrial Commission to "investigate and undertake ways of
promoting the prosperous development of business,  industry,
and commerce in the county." Local Gov't Code 5 381.001(f).
That section allows the county to "pay the necessary
expenses of the commission."   Id. 13381.001(e).   The com-
mission is required to cooperate with and use the services
of the Texas Department  of Commerce. Id. 5 381.001(g),    as
amended by Acts 1987, 70th Leg., ch. 374, g 8(e), at 1871.

     We will discuss   section 381.002 as amended by Senate
Bill 24, and our subsection citations will refer to the
section as amended.    Section   381.002 creates a board of
development in all counties.    Local Gov't Code § 381.002(b).
The county commissioners court appoints the members of the
board, which is required to "devote its time and effort to
advertising and promoting the growth and development of the
county." Id. 5 381.002(b), (c).      That section also allows
counties to appropriate funds and to levy a tax for the
purposes of the board but makes such appropriation or tax
subject to a popular vote and sets a ceiling on the rate.
Id. 5 381.002(a).  Subsection (g) recognizes that "a county
may operate under another law authorizing the appropriation
of money or levy of a tax for advertising and promotion
purposes" but extends the appropriation and tax limitations
established by subsection    (a) to counties operating   under
another law. Id. § 381.002(g).

     This office examined these two provisions   prior to
their inclusion in the Local Government Code. In Attorney
General Opinion JM-516 (1986), we said:

       A county has authority to promote the develop-
       ment of businesses    and industries   in the
       county through a county industrial commission
       established under article   1581g-2, V.T.C.S.
       [now Local Gov't Code § 381.001], or through
       a board of    development  established   under
       article 2352d, V.T.C.S. [now Local Gov't Code
       § 381.002].
Honorable Dale Hanna - Page 3     (JM-1097)




Attorney General Opinion JM-516    (1986).

     In that earlier opinion we did not discuss the popula-
tion bracket  that had limited the application of section
381.002 because it was not relevant. NOW, with the 1989
amendment to section  381.002, the legislature has clearly
indicated its intent that any county may operate under that
section. Section   381.001, which allows the county judge
of any county to appoint a county    industrial commission,
similarly applies to all counties.    It is clear that any
county may act under either section.

     Your second question is whether a county acting under
section 381.001 may expend funds from the general fund to
promote development  without an election.   Section   381.001
does not require an election prior to the expenditure      of
funds, and it allows the county to pay the         "necessary
expenses" of the commission.  Local Gov't Code 5 381.001(e).
We caution, however,   as noted above, subsection     (g) of
section 381.002 extends the limit on appropriations found in
subsection (a) ("an amount not to exceed five cents on the
$100 assessed valuation")    to counties operating      under
another law.

     We need not answer your third question because we have
concluded that Johnson  County may operate under either of
the two sections.

                       SUMMARY

           In order to create a county level agency
        and to appropriate county funds to promote
        development in Johnson County, the county may
        operate under either section 381.001        or
        section 381.002 of the Local Government Code.
        Any appropriation  under either section may
        not exceed the ceiling established by section
        381.002(a).    If  operating under     section
        381.002, any appropriation  must be approved
        in advance by a majority vote of the county
        electorate.

                                  /V-f;        yJf&


                                    JIM     MATTOX
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General
Honorable Dale Hanna - Page 4   (JM-1097)




LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General
