                        THEAITORNEYGENERAL
                                 OF      TEXAS

                                AUSTIN    ~.TEXAS

   BVILL    WILSON
A’ITORNEY      GENE-L
                                April 12, 1961

       Honorable Jack N. Fant             Opinion No. WW-1040
       County Attorney
       El Paso County                     Re:    Authority of Commissioners
       El Paso, Texas                            Court of El Paso County to
                                                 convey 1.67 acres of land,
                                                 dedicated and used as a
                                                 county park, back to its
                                                 grantor, the United States
                                                 of America, under the facts
                                                 stated, and related ques-
       Dear Mr. Fant:                            tions.
                 In your letter pertaining to the above subject, you
       ask the opinion of this office as to the authority of the
       Commissioners Court of El Paso County to convey certain land
       back to the grantor, the United States of America, the validity
       of a deed executed by the County Judge of El Paso County con-
       veying such land to the United,States pursuant to an agree-
       ment between the County and the City of El Paso, and the
       validity of the agreement entered into between the City and
       the County relating to the conveyance of such land. You fur-
       ther request the opinion of this office on the question of
       whether, under Article 1175, Vernon's Civil Statutes, the
       City of El Paso has or had the right of eminent domain to
       acquire the fee simple title to said property for city purposes;
       and if the City and County agreed upon the public use of the
       property by agreement and the County thereafter executed such
       a deed, if the deed and agreement would thus be valid.
                 From the facts presented in your letter it appears
       that the United States, on October 11, 1937, acting through
       the then Secretary of State, conveyed approximately 352 acres
       of land (in which the 1.67 acres in question are included) to
       the County of El Paso, 'so long as the said premises continue
       to be used by or on behalf of ths grantee herein for public
       recreational park purposes . . .   The County then established
       a county park known as Ascarate Park on this land and has con-
       tinued to own, operate, maintain and control said park. As
       a result of negotiations between the Federal Government and
       the County and City of El Paso, the Commissioners Court, on
       January 11, 1960, passed an order stating:
Honorable Jack N. Fant, Page 2 (WW-1040)


               II
               . . . that the County of El Paso deed to the
         Federal Government a strip of land in Ascarate
         Park consisting of 1.67 acres which will in turn
         be deeded over to the City by the Federal Govern-
         ment for the purpose of the City of El Paso erect-
         ing a training tower for firemen which in turn
         will reduce the fire insurance rate in El Paso and
         that the County Judge be authorized to sign said
         deed on approval of same by the County Attorney."
Thereafter, on January 13, 1960, the County Judge, on behalf
of the County, executed a Special Warranty Deed conveying the
1.67 acres to the United States of America for the purpose of
enabling the United States to convey this land to the City of
El Paso. Also on January 13, 1960, the Mayor of El Paso and
the County Judge, on behalf of the City and County, respectively,
signed an agreement providing as follows:
               II
                . . .
              "Whereas, by deed dated October 11, 1937,
         the United States of America conveyed to the
         County of El Paso for public recreational park
         purposes a tract of land which had been acquir-
         ed by the United States in connection with the
         rectification of the Rio Grande in the El Paso-
         Juarez Valley; and
              ltWhereas,it is deemed in the public in-
         terest that 1.6737 acres of land more or less
         out of said tract be conveyed to the City of El
         Paso, for public purposes other than those per-
         mitted in the deed from the United States to
         the County, said 1.6737 acres being a part of
         Ascarate Park, situated In El Paso County, Texas,
         and more particularly described by metes and
         bounds as follows:
              II
               . . . fiand descrlptio~
               "Now therefore In consideration of the pre-
          mises and of the mutual benefits moving to each
          of the parties therefrom, the City agrees to use
          said property for a fire drill tower and such
          other necessary incidental uses pertaining to
          said drill tower and exercises and drills connect-
          ed therewith, and the City further agrees with the
          County that the City will not conduct upon said
          property any concessions.
Honorable Jack N. Fant, Page 3 (WW-1040)


               11               II
                    .   .   .


          On January 15, 1960, the United States Commissioner,
International Boundary and Water Commission, United States
and Mexico, acting for and on behalf of the United States
of America, conveyed the 1.67 acres, without warranty, to
the City of El Paso to be used for public purposes.
          Section 18 of Article V of the Constitution of
Texas confers authority upon the Commissioners Court in the
following language:
               11
                . . . The County Commissioners so chosen,
         ,with the County Judge as presiding officer, shall
          compose the County Commissioners Court, which
          shall exercise such powers and jurisdiction over
          all county business, as is conferred by this Con-
          stitution and the law: of the State, or as may be
          hereafter prescribed.
          Statutory provisions relating to the disposition of
county lands such as are involved here are found in Articles
6078a, 5248~2,and 1577, Vernon's Civil Statutes.
          Article 6078a pertains to the abandonment of county
parks and does not apply to the above facts inasmuch as the
Commissioners Court made no determination to close and aban-
don the land as a park.
          Article 5248c, relating to the authority of counties
to convey lands to the United States at private sale is L
also inapplicable inasmuch as it pertains to the sale of
lands used for public purposes which are in excess of the
needs of the county for its public purposes. These lands
are authorized to be conveyed to the United States, 'for
any fair consideration . . . under the provisions of the
Statutes of the United States of America a;thorizing the
acquisition of sites for public buildings.   That this
Statute was not intended to encompass the situation here
presented is further evidenced by the wording of Section 3,
validating, "proceedings and orders heretofore had and made
. . . for the conveyance . . . of any plot of ground such
as is described in Section 1 hereof to the United States of
America, pursuant to any advertisement by its officers in-
viting proposals to sell site for any public building . . .',
and by Section 4, the emergency clause, which reads in part
as follows:
Honorable Jack N. Fant, Page 4 (WW-1040)


               "Sec. 4. The fact that the erection of
          public buildings for the United States of
          America at locations convenient for the
          public may be prevented or delayed unless
          this Act be enacted to takz immediate effect
          creates an emergency . . .   Acts 46th Leg.,
          1939, P. 139.
          The conveyance by the Commissioners Court to the
United States of America was not in compliance with the pro-
visions of Article 1577, which reads as follows:
              "The Commissioners Court may, by an order
         to be entered on its minutes, appoint a Commis-
         sioner to sell and dispose of any real estate
         of the county at public auction, and notice of
         said public auction shall be advertised at least
         twenty (20) days before the day of sale, by the
         officer, by having the notice thereof published
         in the English language once a week for three
         (3) consecutive weeks preceding such sale in
         a newspaper in the county in which the real
         estate is located and in the county which owns
         the real estate, if they are not the same. The
         deed of such Commissioner, made in conformity
         to such order for and in behalf of the county,
         duly acknowledged and proven and recorded, shall
         be sufficient to convey to the purchasers all
         the right, title, and interest and estate which
         the county may have in and to the premises to be
         conveyed. Provided, however, that where abandon-
         ed right-of-way property is no longer needed for
         highway or road purposes and the county decides
         to sell said right-of-way property, it shall be
         sold with the following priorities: (1) to abut-
         ting or adjoining landowners; (2) to the original
         grantors, his heirs or assigns of the original
         tract from whence said right-of-way was conveyed;
         or (3) at public auction as provided above. Noth-
         ing contained in this Article shall authorize any
         Commissioners Court to dispose of any lands given,
         donated or granted to such county for the purpose
         of education in any other manner than shall be
         directed by law. As amended Acts 1949, 51st Le
         p. 904, ch. 485, g 1; Acts 1953, 53rd Leg., p. 8$',
         ch. 133, g 1."
Honorable Jack N. Fant, Page 5 (WW-1040)


          The authority of the Commissioners Court to convey
county lands in a manner other than that provided by this
Statute was denied in the case of Fernuson v. Halsell, 47
Tex. 421, (1877), wherein the Court, holding invalid a deed
which conveyed county land at a private sale, stated:
               II
                . . . Although this statute is permissive
          in its terms, yet it is the only mode expressly
          pointed out in the general laws of the State by
          which the County Court can divest the county of
          its title to its real estate. No special law,
          as applicable to this particular case, has been
          referred to. The general doctrine is, that as
          the County Court is the agent of the county, in
          its corporate capacity, it must conform to
          the mode prescribed for its action in the
          exercise of the powers confided to it. The
          prescribing of a mode of exercising a power
          by such subordinate agencies of the Govern-
          ment has often been held to be a restriction
          to that mode.
               II
                . . .11
          This construction was recognized in Wooters v. Hall,
61 Tex. 15, (1884), and was followed in Llano County v. John-
son, et al, 29 S.W. 56 (Civ. App. 1895), and Llano County v.
Knowles, et al, 29 S.W. 549 (Civ. App. 1895). The following
language was used in the latter two cases:
               II
                . . . The commissioners' court of the
          county occupy towards its property a trust
          relation, and they can only dispose of its
          property in the manner required by law, and
          for purposes that are in keeping with the
          trust they represent. They have no right
          to donate the county property or dispose of
          it so as to virtually amount to a donation.
          It is a trust estate, and principles of
          equity will not permit them to be liberal
          and generous with property they do not own,
          and which the% hold in trust for public pur-
          poses. . . .
          This interpretation was followed in Hardin Count
v. Nona Mills Co., 112 S.W. 822 (civ. APP. 1908-lTzzs.
Levg, 173 S.W. 550 (Civ. App. 1915, error ref.) and Dreeben
Honorable Jack N. Fant, Page 6 (W-1040)


v. Whitehurst, 68 S.W.2d 1025 (Comm.App. 1934).  As evi-
denced by Opinion No. 0-2660, a copy of which is enclosed,
this office has consistently followed the construction of
Article 1577 announced in the cited cases.
          Therefore, it is the opinion of this office that
the Commissioners Court of El Paso County was without author-
ity to convey the land in question by the method employed and
that the deed executed by the County Judge and the agreement
entered into between the County and the City are invalid.
          The authority of the City of El Paso to acquire by
condemnation the fee simple title to the subject property
is governed by Section 5 of Article XI of the Constitution
of Texas, providing for the adoption of charters by home
rule cities, by Section 15 of Article 1175, Vernon's Civil
Statutes, enumerating the powers granted to such cities,
and by the provisions of its charter. Section 15 of Article
1175 reads, In part, as follows:

              "15.  To have the power to appropriate
         private property for public purposes whenever
         the governing authorities shall deem it neces-
         sary; . . . and to acquire lands within and
         without the city for any other municipal pur-
         pose that may be deemed advisable.        The
         power of eminent domain hereby conferred'shall
         include the right of the governing authority,
         when so expressed, to take the fee in the lands
         so condemned and such power and authority shall
         include the right to condemn public property
         for such purposes."
          However, this general grant of authority by the
Legislature to home rule cities to condemn public lands,
"for anv other municinal nurnose that mav be deemed advisable"
must yield to the limitation-on that authority expressed~by
the Texas Supreme Court in Sabine & E. T. Ry. Co. v. Gulf &
I. Ry. Co. of Texas, 92 Tex. lb2 4b S.W. 784 (1898) , wherein
the Court recognized the general'rule that, unless exnress
authority is gzven by the-statute to condemn property-pre-
viously dedicated to a public use, such authority cannot be
Implied from the general power conferred by law when such
condemnation would practically destroy the use to which the
property has been devoted unless the necessity be so great
Honorable Jack N. Fant, Page 7 (WW-1040)


as to make the new use of paramount importance to the public,
and it cannot be practically accomplished in any other way.
This doctrine was followed and the power of condemnation recoe-
nized where the proposed use would not destroy or materially
interfere with the prior use in Texas Midland
                                        ----.-  R. --_
                                                -_- R. v.
                                                       . . Knl~fman
                                                           --- -...-..
County Imp. Dist. No. 1, 175 S.lim             ~~ 1915, error
                                        IV. APP.
dism.   Texas & N.O.R. Co. v. City of Beaumott, 285 S;W. 944
(Civ.)app. 1926, error ref.), Central Power and Light Co. v.
Willacy Count& 14 S.W.2d 102 (Civ. App. 1929) and Snellen v.
Brazoria County, 224 S.W.2d 305 (Civ. App. 1949, error ref. n.r.e. ).
The following cases concern express statutory authority: Ft.
Worth & R. G. Rv Co. v. Southwestern Telegraph & Telephone Co.,
96 Tex. 160, 71 S.W. 270 (1903) and Fry, et al v. Jackson, et
a, 264 S.W. 612 (Civ. App. 1924). Injunctions have been upheld
against condemnation of land used for public purposes unless the
prior use is protected In Ft. Worth Imnrovement Dist. No. 1 v.
City of Ft. Worth, 106 Tex. 148 158 S.W. 164 (1913) and Harris
County Drainage Dist. No. 12 v.'Citv of Houston, et al, 35 S.W.
2d 118 (Comm. App. 1931).
          In view of the above, it is the opinion of this office
that the City of El Paso may condemn the county's interest in
the public land in question ifsuch right is so expressed in
the city charter and if the proposed use will not materially
interfere with or destroy the prior use, or if the proposed use
is of paramount public importance and cannot practically be
accomplished in any other way. The determination of these ques-
tions of fact is not within the purview of this office. Even
though the City may, under the conditions stated, exercise the
right of eminent domain in this situation, such action would
not validate the action of the commissioners' court in agree-
ing to convey and conveying the land in a manner other than
that provided by statute.
          Since the federal government has expressed its con-
sent to the city's ownership and proposed use of the 1.67 acres
for public purposes only, the right of the city to acquire the
fee simple title to the subject land must be considered in con-
nection with the reversionary interest retained by the United
States in the original deed to the County of El Paso, provid-
ing that, . . . whenever and in the event that the County of
El Paso shall cease to utilize the said described premises wholly
for public recreational park purposes, then and thereupon this
conveyance shall be null and void, and the said land and premises,
together with all Improvements thereon and appurtenances there-
Honorable Jack N. Fant, Page 8 (WW-1040)


unto in anywise belonging or appertaining shall absolutely re-
vert to and revest in the United States of America; and no
act or omission on the part of the United States of America
shall be a waiver of the enforcement of such condition; . . .'
In the case of Utah Power & Light Co. v. United States, 230
Fed. 328 (C.C.A.&h, 1915) wherein the power company contended
that the land of the Unite; States within the State of Utah was
subject to the laws of the state and its power of eminent domain,
the Circuit Court of Appeals held that the public lands of the
United States were not subject to the state power of eminent do-
main, either directly or indirectly, without the consent of the
United States.
         Your fourth question is quoted as follows:
              I'
               . . . assuming that the deeds and agree-
         ment submitted herewith are valid . . . would
         the city have the right to pump . . . water from
         the County Park lake for fire training purposes?"
          In view of our opinion that the deed and agreement
are invalid, we do not answer this question.
                          SUMMARY
          The Commissioners Court of El:Paso County was
          without authority to reconvey to the United
          States of America land previously dedicated
          and used for public park purposes in a manner
          not authorized by law, and the deed executed
          by the County Judge for this purpose is in-
          valid. The City of El Paso may condemn the
          county's interest in the public land in ques-
          tion if the proposed use will not materially
          interfere with or destroy the prior public
          use, or if the proposed use is of paramount
          public importance and cannot practically be
          accomplished In any other way.
                             Yours very truly,
                              WILL WILSON
                              Attorney General of Texas


                                    Dudley D: M&alla
                                    Assistant
DDM:mm/hmc
Honorable Jack N. Fant, Page $9 (WW-1040)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
William H. Pool, Jr.
Elmer McVey
Joe B. MeMaster
Linward Shivers
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
