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                                    December      22, 1970       !    * 2’    -,/L+
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     Hon. Gerald W. Schmidt                        Opinion   No. M-758
     County Attorney
     Gillespie   County Courthouse                 Re:   Authority of commissioners
     Fredericksburg,   Texas   78624                     court to lease land for
                                                         different purpose than
                                                         that for which land was
     Dear Mr. Schmidt:                                   acquired.

                  Your recent request        for an opinion      of this office
     concerning    the above captioned        matter reads,      in part,  as follows:

                  “The Commissioners     Court of Gillespie       County
           purchased    approximately    356~ acres of land in Gil-
           lespie    County in 1946 from various       individuals    for
           the construction      and operation    of an airport.      Prior
           to the purchase,      a bond issue was passed authorizing
           the purchase      of such land.     The land was conveyed to
           Gillespie    County by general      warranty deeds without
           any restrictions.

                  “The airport      was constructed       and since such
           time has been in operation           and use as a public
           airport,    maintained      by Gillespie      County.     As in
           most cases of public         airports,    the entire      tract
           purchased     is not necessary       for the operation        of the
           airport.     Now Gillespie       County Fair Association          de-
           sires    to lease a portion       of the land originally
           purchased     for an airport      for the purposes        of erect-
           ing exhibition       halls,   grandstands,      baseball     diamonds,
           a race,track      for horses and any other building              or
           improvement necessary         for the purpose of conducting            a
           county fair.        The Association      will   finance    the cost
           of construction       of these improvements         and any other
           necessary     improvements.       The Association        desires    a
           long term lease,       perhaps a 99 year lease.            Admission
           charges will     be collected       by the Association         to de-
           fray the expenses        of the entertainment         conducted     by
           the fair association.

                 “The question       I am submitting      for an attorney
           general’s  opinion      is as follows:        Can the Commissioners



                                         -3704-
Hon. Gerald    W. Schmidt,     page    2      p&758)




      Court of Gillespie    County legally    lease a portion   of
      the land acquired   by Gillespie     County for an airport,
      to the Gillespie   County Fair Association      for the pur-
      pose of erecting   any and all improvements necessary
      for the conducting   of a county fair and for the
      actual  conducting  of such fair?”

           Cur answer is “yes”,             under the facts related,   Gillespie
County may lease a portion   of            the 356 acres to the Gillespie
County Fair Association.

           The powers of the          commissioners    court to lease      airport
property  are contained  both         in Article    2351, Vernon’s.Civil       Statutes,
and 1269h, Section    1.

             Article   2351 reads,         in part,    as follows:

             “la(a)     The Commissioners      Court of each county of
      this State;       in addition    to the powers already       con-
      ferred    on it by law, is empowered in all cases where
      said county has heretofore          acquired,     or may hereafter
      acquire,      land for an airport       .~ .   to lease said
      land and/or the facilities          thereof,     or any aart
      thereof    to any person or corporation           upon.such   terms
      as the commissioners         court shall deem advisable         for
      airport    purposes,     or other purposes,       provided   any such
      lease is not inhibited          by the terms of the grant to
      such county.        Said counties     through such commissioners
      courts    are also hereby expressly          authorized    and em-
      powered to contract         with reference     to oil,    gas or
      other minerals       or natural    resources     . . .‘I   (Emphasis
      added. )

            It can readily     be seen that the legislature           has set
out three categories    of authorized      leases in Article         2351:     (1)
for airport   purposes,    (2)  f or development  of natural         resources
and (3) other purposes.        Such are in addition   to all         other powers
previously   conferred  upon the court.

           Article      1269h, Section     1 D and E, Vernon’s       Civil   Statutes,
as amended by the Acts of the 50th Legislature,                1947, also pro-
vides authority      for the commissioners        court to lease airport
property;  however,      that grant of authority         to lease is more limited
in nature.    Section     D thereof    authorizes     that such property      may
be leased  for airport       purposes.     Section    E provides    specific
authority  to lease to the Federal          Government,     State Government
or any person,     firm or corporation.         The general     tenor of



                                   -3705-
,


    Hon. Gerald    W. Schmidt,     page        3      (M-758)




    Section    D leads to the conclusion      that the legislature     intended
    to authorize     use of land, under this section,       for airport    pur-
    poses,   and such Sections     D and E are not extended to additional
    usage.     See Attorney   General’s   Opinions    O-5230 (1943) and V-1162
    (1951).     The latter  opinion,    however,   insofar  as it does not con-
    sider Article     2351 and deals alone with Article        1269h as if it
    were the only authority       to lease airport     land must be hereby
    overruled.

               The right  of the county to take,  enjoy and have full
    use of property   is contained  in Article 1576, Vernon’s Civil
    Statutes,  which reads as follows:

                 "All    deeds,   grants and conveyances     heretofore
          or hereafter        made and duly acknowledged,     or proven,
          and recorded        as other deeds of conveyance,      to any
          county,     or to the courts      or commissioners   of any
          county,     or any other person or persons,        by whatever
          form of conveyance,         for the use and benefit     of any
          county,      shall be good and valid      to vest in such
          county in fee simple or otherwise           all such right,
          title,     interest    and estate   as the grantor    in any
          such instrument        had at the time of the execution
          thereof      in the lands conveyed     and was intended
          thereby     to be conveyed.”

              Our Supreme Court considered    this Article,   which at
    the time was Article   680, in the case of salf    v. Collin   County,
    80 Tex. 514 (S.Ct.   1891).  Therein the court stated:

                 “Articles    680 . . . of the Revised Statutes
          contain    an express    recognition    of the right of
          counties     to take title    to and enjoy real estate
          without    any limitation     being expressed     as to
          the purposes     for which it shall       be used.”
          Bell County v. Alexander,          22 Tex. 350 (1858) is
          cited    in support thereof.

                 We note that the conveyance                    of   the   subject   property   was
    to the   county without  limitation.

                  The general    rule     is       stated   in 63 A.L.R.         615 as follows:

                 “It is generally    held that a municipal     corpora-
          tion has the right      to rent municipal   property    to
          private   persons  where such a right     is conferred,




                                          -3706-
Hon.   Gerald     W. Schmidt,    page   4       (M-758)




       either  expressly   or by necessary             implication,   by
       the charter   of the municipality              or by statutory
       enactment. ”

                The concept of leasing   public property           by the   commis-
sioners      court is not repugnant    to our courts.

          The use of public    property for public  good was recog-
nized in the early case,   Bell County v. Alexander,~ 22 Tex. 351
(1858), supra, wherein at page 359 the court stated:

                “There is as little     doubt of the capacity       of
       the county to take an estate          in lands,    by grant
       or devise.       The statute   declares    that ‘each county
       which now exists,       or which may be hereafter        estab-
       lished     in this state,    shall  be a body corporate        and
       politic.     ’ They may sue and be sued, plead and im-
       plead.      They may take and hold,       and dispose    of,
       private     property  for municipal      purposes   or such
       uses and purposes       as subserve     the public   good,   . . .‘I
       (Emphasis added.)

                In 133 A.L.R.     1245 it      is   stated:

                 “If the use of property      by the public     is not
          inter’rereh   wiYn ‘oy a ‘r-ease vf a po-0-ivr~ ‘c’lftnw& ,
          or by a lease for a limited        time only,   it has
          been held that such a leasing         is within general
          municipal    powers. ”     .

            “Public   good” or “public      use” are terms that need to be
redefined   with each new circumstance        or set of facts.       It would
appear that,    in the subject    instance,      it is in the public    good
to use a portion     of the purchased     property    as an airport.     It
would likewise     appear to be contrary       to public  good to allow
the unused portion      of this tract   to lie fallow.       Public use
and public   purpose were discussed       in Ex parte Conger Ex parte
Buford,   357 S.W.2d 740 (Tex.Sup.       1962) at page 741 where the
court stated:

                 “NO all-inclusive      judicial    definition     of that
          term has been attempted        by the courts,       but each
          case is to be determined         by its own peculiar       cir-
          cumstances.      Davis v. City of Lubbock,           160 Tex. 38,
          326 S.W.2d 699.        While there are two views as to
          what constitutes       ‘a public    use’,  one being more
          restrictive     than the other,      nevertheless      where there



                                      -3707-
Hon. Gerald      W. Schmidt,         page     5        (M-758)




         exists  the direct   use or right of use of the utility
         on the part of the public     or even some limited   por-
         tion of the public,     all agree it is a public   use.
         73 C.J.S.  Public   p. 280.”

             Our courts     have approved the sublease  by a city of
the excess     space in a city office,    even where such sublease
was within     the intent    of the citv orior to its lease of the
entire   building.      City of Mission t. Richards,   274 S.W. 269
(Tex.Civ.App.      1925, writ dasm.)

             Any prohibition   against                     the use of the “excess”    property
involved,    as being opposed to the                       dedication  of the property    to
a public  use, should be dispelled                         by the courts  definition   of
“airport”    in-Moore  v. Gordon, 122                      SlW.2d 239 (Tex.Civ.App.    1938,
writ dism.),     which states:

                “An airport,   within the meaning of the law,
         includes   all lands,    buildings,-  structures    or other
         improvements    necessary    or convenient    in the estab-
         lishment   and operation     of an airport.”     (Emphasis
         added. )

              In the Moore case the court held that the entire          tract,
because of extensiveairport         improvements,   was dedicated    to the
public.      We distinguish   the Moore case,     on the public    dedication
point,    from the Gillespie    County situation    because of your
statement     that the entire    356 acres is not necessary     for the
operation     of the airport.

           It is assumed from the facts      stated   in your letter
that the proposed   lease for fair purposes      would not interfere
with the primary use of the property      as an airport.       Such use
of county property    was considered  by the court      in the case of
Dodson v. Marshall,    118 S.W.2d 621 (Tex.Civ.App.       1938, writ dism.),
wherein the court approved of a month to month rental           of a space
in the county courthouse     for the operation     of a cigar   and drink
stand.   The court posed the following      question.

               “Has there in fact been such a diversion      of
         a material    part of the premises  as to interfere
         with the use of the property     as a whole for the
         purposes   for which it is intended?”

              The court       held    that        it   was not.

               We believe      that Article                2351, Vernon’s    Civil   Statutes,
in its     expression    of    authority    of             commissioners    courts   to lease


                                            -3708      -
                                                                               ,




Hon. Gerald   W. Schmidt,     page   6    (M-758)



airportpropettj,       foi 'I. . . other purposes  . . .'I, is sufficient
in &igh,t..of the :abo&e case law to allow the proposed        lease at
least    to'tht   exqent' of the property  not necessary   for reasonable
airpart:;@eration1

          A copy of the proposed      lease between the county and
the Fair Association   was not furnished        this office.      We there-
fore make no comment as to its specific          validity    other than to
mention that a lease term of the property           for 99 years,     as set
out in your letter,   might violate     Article     I, Section    26 of the
Texas Constitution   concerning   perpetuities        and monopolies.

                             SUMMARY

              A commissioners       court has authority     under
      Article     2351, V.C.S.,      to lease airport     property
      to a fair     association,       so long as lessee's     use
      does not interfere         with the reasonable      use and
      operation     as an airport.         Attorney General's
      Opinion No. V-1162 (1951) is overruled              to the
      extent of any conflict           with this opinion.

                                                truly   yours,




Prepared    by Melvin   E. Corley
Assistant    Attorney   General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,  Chairman
W. E. Allen,  Co-Chairman
Sam Jones
Jerry Roberts
Ray McGregor
Bob Lattimore

MEADEF. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant
                                     -3709-
