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                    THE      ATFORNEY            GENERAL
                                        OF TexAs
                                 AU-.      FlQKAmrewll




            The Wonorable Henry Wade              Opinion Wo. ?I-973
            Criminal District Attorney
            Sixth Floor, Records Building         Re: Authority to form a
            Dallas, Texas 75202                   joint airport zoning board
                                                  under article 46e-3, V.T.C.S.
            Dear Mr. Wade:
                 You have requested an opinion of this office on the
            following question:
                     Can the County of Dallas and the City of
                     Mesquite, a municipal corporation, form a
                     Joint Airport Zoning Board under the
                     statutory authority of Article [46e-31
                     Vernon's Texas Civil Statutes where the
                     ownership and control of the airport is less
                     than absolute?
                 The statute to which you refer, a part of the Airport
            Zoning Act, as amended, reads in pertinent part:

                     (1) In order to prevent the creation or
                     establishment of airport hazards, every
                     political subdivision having an airport
                     hazard   within its territorial Units may
                     adopt, administer, and enforce . . . airport
                     zoning regulations for such airport hazard
                     area   . . . .
                     (2) Where an airport is owned 01 con~trolled
                     by a political subdivision . . . and any
                     airport hazard area appertaining to such
                     airport is located outside the territorial
                     limits of aaid political subdivision, the
                     political subdivision owning or controlling
                     the airport . . . and the political sub-
                     division within which the airport hazard
                     area is located may create . . . a joint
                     airport zoning board, which board shall have
                     the same power . . . '.
                                            p. 4051

                             .
The Honorable Henry Wade - page 2   (H-973)


     You advise that the City of Mesquite presently zones
the area surrounding a private airport located within its
city limits, but the approach ~for the airport also creates
an airport hazard area located in the unincorporated territory
of Dallas County. The City has entered a written agreement
with the airport owner giving the City a preemptive "right
of first refusal," i.e. the privilege of purchasing the
facility at the prigdeemed    acceptable by the owner)
actually offered to the owner by a bona fide purchaser. The
airport is neither "owned or controlled" by the City of
Mesquite nor the County of Dallas otherwise.
     A preemptive right of first refusal is not an option
but may ripen into an option, which in turn may ripen into a
contract of purchase ana sale. Sinclair Reiining Co. v.
Allbritton, 218 S.W.Zd 185 (Tex. 1949); Hen erson v.
Nitschke, 470 S.W.2d 410 (Tex. Civ. App. -- Eastlafia1971,
writ ref'd n.r.e.). It gives the holder of the right no
power to compel an unwiliing owner to sell. Owen&v. U er
Neches River Municipal Water,Authority, 514 S.W.Zd = 7=-
                                                       Tex.
Civ. App. -- Tyler 1974, writ ref'd n.r.e.1. --
                                              See also
Lm;er v. Go&man, 400 S.W.Zd 545 (Tex. 1966). Even the
    er x an unconditional option possesses only an executory
contractual right that passes no title. Roberts v. Armstronq,
231 S.W. 371 (Tex. Comm'n App. 1921, jdgmt.adopta).    See
also Click v. Seale, 519 S.W.Zd 913 (Tex. Civ. App. -- -
min5Twrit         ref'd n.r.e.1.
         The facts supplied us indicate that neither the County
of Dallas nor the City of Mesquite "owns" the airport within
the meaning of the statute. Neither do we believe the
airport is "controlled" by either municipal corporation
within the meaning of the statute. The term "control"
aenerallv connotes the power and right to manage the facility.
See State v. Camper, 261 S.W.Zd 465-(Tex. Civ.~App. -- Dallas
=3,t?ef'd)               See also Andersong% Stockdale, 62 Tex.
54, 61 (1884); RoberGn        v. State, 15   . .   3 (Tex. Grim.
APP. 1913). While some mzsure of control may be said to exist
by-reason of the statutory power conferred by article 46e-3,
to zone for "airport hazards," the power extends only to
trees, structures, or land use which interfere with the safe
use of the airport, and it gives the city or the county no
Dower to reaulate the operation of the private airport
r-~~--
itself. cf: Atk_irts~~l~~s,:~l~Da~llas; 353 S.W.Zd 275
  .--___
 (Tex.    Civ.
          --. _ ADD.
                ..ZL.                 rit ref'd n.r.e.1, cert.
denied, 370 U.S. 939 (1962). Thenagency charged with general
-tory           authority over private airports in Texas is the
Texas Aeronautics Co~ission.        V.T.C.S. art. 46c-6. -See

                          p. 4052
The Honorable Henry Wade - page 3      (H-973)


City of Dallas k    Southwest Airlines co., 494 FiZd 773 (5th
Cir. m74)
     We answer, therefore, that under the facts given us
the County of Dallas and the City of Mesquite do not have
authority under article 46e-3 to form a Joint Airport
Zoning Authority with respect to an airport not owned or
controlled by either of them. Cf. Attorney General Opinion
M-1278 (1972). We do not addrezany    question relating to
any power that the political subdivisions may exercise
independently under the first provision of the statute.
                       SUMMARY
            The County of Dallas and the City of
            Mesquite do not have authority under
            article 46e-3, V.T.C.S., to form a Joint
            Airport Zoning Authority with respect to
            an airport not owned or controlled by either
            of them.
                                  Very truly yours,




APPROVED:




Opinion Committee
j.wb




                                 p. 4053
