                   November 3, 1964


Honorable Jack N. Fant             Opinion N6. C- 342
County Attorney
El Paso County                     Re:   Whether the Commissioners
El Paso, Texas                           Court of El Paso County has
                                         authority to lease the Coliseum
                                         to private lndlvlduals for the
                                         purpose of conducting a furnl-
Dear Mr. Fant:                           ture sale.
         You have posed the following question:
         %oes the Commissioners Court of El Paso
    County have authority to lease the Coliseum to
    private Individual8 for the purpose of conducting
    a furniture sale?'l
            Your request for an opinion reads In part as follows:
            I,
                 .&me five or six weeks ago, the county
    entered into a lease agreement with a Mr. Oeorge
    Malooly, who Is a local retail furniture store
    chain owner, and a Mr. Hurst, who Is connected
    with the National Furniture Institute of California,
    for the rental of the El Paso Coliseum to Mr. Halooly
    and Mr. Hurst, for a period of some five days'
    duration, from August 30th through September 5th,
    1964, when the Coliseum was not being used for sny
    other purpose and the purpose of the least?was for
    Mr.   Malooly and Ur. Rurst to conduct a furniture
    sale which in fact was more or leas a wholesale
    furniture sale, which was open to the public with
    sales and deliveries made directly from the floor
    of the Coliseum. El Paso County realized as a
    consideration for the use of said Coliseum by
    Malooly    and Hurst the sum of $2075.00 for their
    five days' use of said building for their public
    firnlture sale In said Coliseum.


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.   ’




        Hon. Jack N. Fant, page 2 (C-342)


                 "Various other El Paso retail furniture
            dealers and the El'Paso Retail Furniture Dealers
            Association, a corporation, threatened to file an
            application for a temporary restraining order
            against George Malooly dba National Furniture In-
            stitute and the County of El Paso for the rea8ons
            that they claimed that the El Paso County Coliseum
            Is public property governed by the Commlaslonere~
            Court and that the use by Malooly and Hurst of
            this public property for the purpose of a private
            sale for their own benefit. dolna business as the
            National Furniture Institute, wae Illegal and In
            violation of                     and that the use
            of said Co11                    Hurst was for a
            private use for private gain, and was In competition
            with other private commercial enterprises and that
            through their tax payments, made the facilities
            available and that such a sale in a public building
            such as the Coliseum would cause Irreparable damage
            to the El Paso Retail Furniture Dealers.
                  'The suit however was not filed by the Retail
             Furniture Dealers and Malooly and Rurst conducted
             their sale on the Coliseum premises and the County
             received Its $2075.00 consideration for the five
             days' term of the lease. The Commissioners1 Court
             of El Paso County and the El Pa86 County Coliseum
             Manager thereafter requested me to obtain a ruling
             or an onlnion from sour o~fflceas to the author1t.Y
             of the &mmissloner~t Court of the County by virtue
             of Arts. 2372d, 2372d-2 and 2372d-3, V.T.C.S., to
             rent or lease ita coliseum building and adjacent
             livestock building fof;the purpose. . .set forth
             and explained. . . .
                  The Commissioners Court Is a court of limited juris-
        diction and has only such powers as are conferred upon It by the
        statutes and Constitution of this State, either by express terms
        or by necessary ImplIbatIon. Improvements constructed by the County
        cannot by implication be made available for lease on the same basis
        as are like improvements constructed by private business lnstltutione.
        Attorney Oeneral's Opinion O-6915 (1945).
                  Article 232d-3, Vernon's Civil Statutes, limits the
        purpose for which Improvements constructed pursuant to Articles
        23726, 2372d-2 and 23726-3, may be used. Said Article reads In
        part as follows:


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Hon. Jack N. Fant, page 3 (C- 342)


          I,
               .   .   .



          %ec. 2. The Commlseloners Court shall
     have authority to permit the use of such exhibits,
     buildings or improvements for any useful public
     purpose which, In the opinion of the Court, will
     be of benefit to the county and It8 citizens.


          "What constitutes a public purpose or use
     as contradlstlngulshed from a private purpose for
     which public funds may be applied fid for which
     public facilities may be used7 has-been repeatedly
     before the courts of practicaly every etate In
     the Union and the Supreme Court of the United States.
     Eut no court has undertaken to lay down with minute
     detail an inexorable rule that would dlatingulsh the
     one from the other. Obviously no such rule could be
     laid down. What was once a public purpoee may now
     be obsolete through progress and ch~~~~on$c,
     aoclalr and political conditions.
     private purpose even a generation ago has often
     through modern Inventions and the complexities of
     commnlty life become now esaentlally a public use
     and necessity. Consequently the modern trend of
     decision 18 to expand and liberally construe the
     term 'public use' In considering state and munlclpa;
     activities sought to be brought within its meaning.
     Bland v. City of Taylor, 37 S.W.2d 291 (Tex.Clv.
     App. 1931, affirmed 123 Tex. 39, 67 S.W.2d 1033).
          The determination of what constitutes a public purpose
Is primarily a legislative function which the Legislature may
delegate as It has done by Seation 2, Article 2326-3.   The deter-
mination of that matter la subject to review In the courts when
abused, but should not be reversed, "except In Instances where
the legislative determination of th$ question IS palpably and
manifestly arbitrary and Incorrect.   Neal v. Boog-Scott, 247
S.W. 689, 691 (Tex.Clv.App. 1923). And If there be any doubt as
to whether the purpose questioned be a public use, the legislative
determination thereof should aontrol. Brown v. Galveston, 97 Tex.
1, 75 S.W. 488 (1?03).
          Mindful of the above, we must still hold that the lease
for a private furniture sale whether wholesale or retail in nature,
18 unauthorized.



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Hon. Jack N. Fant, Page 4 (C-342)


          We can find no subservience to any public purpose of
said sale. The clear Impact of the language of Articles 23726,
23728-2 and 2372d-3 Is that facllltles constructed pursuant thereto
were to be used only In behalf of the public. Any other lnterpreta-
tlon of said Articles would render them of doubtful constitutionality
as violative of Section 3, Article XT, and Section 52, Article III
of the Texas Constitution.
          From all actlvltlee ln which the public engages, benefits
and detrlme'nts.,.naturally
                         accure to Individuals, and It Is normal
that thereby some individual8 will be helped or hurt more than
others In the community at large. This does not prohibit public
activity. The use of public facllltles by private entrepreneurs
If services such as they provide are necessary to the proper en-
joyment of the facllltles by the public and if they are charged
a reasonable rate for the facilities used, has been held authorized
by implication. Dodson v. Marshall, 118 S.W.2d 621 (Tex.Clv.App.
1938, error dlsmlased).
          But when the only justlflcatlon for entering Into a
lease Is that the public ~113 benefit aa landlord, such benefit
Is lnsufflclent to convert what would otherwise be a private use
Into a public use, "and In a sense would be applying public property
for private use which Is against the laws of our state." Tarrant
County v. Rattlkin Title Company, 199 S.W.2d 269, 272 (Texr
APP. 1947).
          We, therefore, hold that the Commls8loners Court Is not
authorized under Articles 2372d, 232d-2 or 292d-3, Vernon's
Civil Statutes, to rent or lease its Coliseum to private Individuals
for the purpose of canductlng a furniture sale.
          You have also referred to some twenty-five additional
events and purposes for which the Coliseum Is leased. We deem It
unnecessary to COnSider each lndlvldually a8 Section 2 of Article
                             or each determination by the Commls-
                              3 Section 2, states that the Commis-
sioners court shall lease 8uch &lldlngs and improvements 'for any
                      which, In the oplnloflof the Court, will be
                       y and It8 citlZen8.
                     SUMMARY
          The Commlssloners Court of El Paso County
     ha8 no authority to lease the County Coliseum
     to private lndlvlduals for the purpose of con-
     ducting a furniture sale.



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Ron. Jack N. Fant, page 5 (C-342)


                                Very truly yours,
                                WAGGONER
                                       CARR
                                Attorney General


                                By :aL
                                    Gordon Houser
                                    Assistant

GH:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Malcolm ?&lck
C. L. Snow
George Black
J. C. Davis
APPROVEDFORTHEAT%l=       GgNERAL
BY: Roger Tyler




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