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                      The Attorney               General         of Texas
                                           October     12,   1978
JOHN L. HILL
Attorney General

                   Honorable Leslie C. Acker                         Opinion No. Ii- 1256
                   County Attorney
                   Midland County Courthouse                         Re: Donation     of city       street
                   Midland, Texas 79701                              right-of-way to county.

                   Dear Mr. Acker:

                          In Attorney General Opinion H-U88 (1978) we advised you that article
                   5421c-12, V.T.C.E., which generally requires publication and notiee of bids
                   prior to the transfer of a street right-of-way, would not apply to a certain
                   transfer by the City of Midland to Midland County because the county was
                   the sole “abutting owner” fronting the street to be abandoned. The question
                   considered there was a narrow one, and we did not address in that opinion the
                   effect of article 3, section 52 of the Texas Constitution on the transaction, or
                   the impact of article 1019, V.T.C.S. You have now asked specifically if a gift
                   of the right-of-way to the county, which intends to use the area to expand its
                   courthouse facilities, is constitutionally prohibited.

                         Article 3, section 52 of the Constitution     reads in pertinent   part:

                               Except as otherwise provided by this section, the
                               Legislature   shall have no power to authorize      any
                               county, city, town or other political corporation or
                               subdivision of the State to lend its credit or to grant
                               public money or thing of value in aid of, or to any
                               individual, association or corporation whatsoever, or to
                               become a stockholder in such corporation, association
                               or company.

                   Counties are considered to be municipal corporations or quasi-corporations
                   within the scope of this and similar constitutional provisions, and gratuities to
                   them by other municipal bodies, or even by the state itself, are unconstitu-
                   tional. See Bexar County v. Linden, 220 S.W. 761 (Tex. 1920). Transfers are
                   not gratuitous, however, if they are made on condition that the thing
                   transferred be used for public purposes benefiting the granting entity. San   -
                   Antonio River Authority v. SheDDerd, 299 S.W.2d 920 (Tex. 1957).




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    Honorable Leslie C. Acker    -   Page 2    (H-1256)




           The question of whether the expansion of courthouse facilities within the city
    would so benefit the City of Midland as to furnish an adequate consideration for the
    transaction is one initially for the Midland City Council, and ultimately for the
    courts. See Davis v. City of Lubbock, 326 S.W.2d 699 (Tex. 1959). We cannot say
    it would not.

           With respect to your question on the impact of article 1019, V.T.C.S., we have
    concluded that it has no effect. Although that statute speaks to the abandonment
    of city streets and provides that no part of a street is to be closed until the
    question of closing it is submitted to the voters of the city, governing bodies with
    the power of eminent domain need not secure the consent of an electorate            to
    obtain property they need for public purposes. Bolton v. City of Waco, 447 S.W.2d
    718 (Tex. Civ. App. - Waco 1969, writ ref’d n.r.e.1; San Antonio v. Congregation of
    Sisters 0: Chrity,   360 S.W.2d 580 (Tex. Civ. App. - Waco 1962, writ ref’d n.r.e.j
    cert. denled 372 U.S. 967). -See Austin Ind. Sch. Diit. v. Sierra Club, 495 S.W.2d
    878 (Tex. 1973).

            Midland County possesses the power to condemn public property needed for
    courthouse purposes and could seek to condemn the right-of-way.        V.T.C.S. art.
    3264a.      Of course, the success of condemnation proceedings by one political
    subdivision against property already devoted to a public use, if not controlled by
    statute, depends upon the paramount need of the public. If the city and the county
    agree that the paramount need is a need for courthouse facilities, there is no
    difficulty.   What Midland County might do by resort to condemnation proceedings,
    it can do by agreement with the City of Midland. See Kingsville Ind. Sch. Dist. v.
                                                                   writ ref’d) adopting
                                                                   164 S.W.Zd 49 (Tex.
                                                                  y v. City of El Paso,
                                                                  also Austin Ind. Sch.
    Dist. v. Sierra Club, s;      City of Tyler v. Smith County, 246 S.W.2d 601 (Tex.
    1952).

          If the city and the county reach agreement respecting the paramount public
    use of the property, and if the exchange is made for an adequafe consideration or
    to accomplish a proper public purpose, we believe a transfer of the property to
    Midland County without an election would probably be upheld by the courts.
    Attorney General Opinions H-413 (1974); H-108, H-93 (1973).

                                       SUMMARY

                If the City of Midland and Midland County reach agreement
                respecting the paramount public use of a city street right-of-
                way needed for courthouse expansion, and if the exchange is
                made for an adequate consideration      or to accomplish a
                proper public purpose, a transfer of the property to the
                county without an election would probably be upheld by the
                courts.




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            Honorable Leslie C. Acker   -   Page 3   (H-1256)




                                                     Attorney General of Texas
            APPROVED:




            Opinion Committee




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