                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT




                                                May 1,2008



The Honorable Rex Emerson                               Opinion No. GA-0621
Kerr County Attorney
County Courthouse, Suite BA-103                         Re: Status of the Kerr County Airport Authority
700 Main Street                                         (RQ-0643-GA)
Kerrville, Texas 78028

Dear Mr. Emerson:

        You ask the following questions regarding the status of the Kerr County Airport Authority:

                          1) Whether the Kerr County Airport Authority created under
                 H.B. No. 956 can be utilized and the Board populated 37 years after
                 [the] county election and vote canvassing declaring [the] authority
                 created.

                         2) Whether the alternate airport governance created by [the]
                 City [of Kerrville] and County [of Kerr] after the 1970 election
                 establishing the Kerr [C]ounty Airport Authority can legally govern
                 the airport. 1

I.      Background

        Consideration of your questions necessitates a review of the relevant legal and factual
background. Adopted in 1966, article IX, section 12 of the Texas Constitution provides for the
establishment of airport authorities. See TEX. CONST. art. IX, § 12. This section of the constitution
requires legislative action in order to execute its provisions. See id. The legislative session
immediately following the adoption of the constitutional amendment enacted enabling legislation
(House Bill 956) for the Kerr County Airport Authority ("Authority"), subject to voter approval. See
Act of May 19, 1967, 60th Leg., R.S., ch. 393, §§ 1-29, 1967 Tex. Gen. Laws 896, 896-903
[hereinafter Act of May 19, 1967].



         ISee Letter from Honorable Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, Attorney General
of Texas, at 1 (Oct. 23, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Rex Emerson - Page 2               (GA-0621)




         As contemplated in the Authority's enabling legislation, you explain that "Kerr County
accepted and certified [a] citizen's petition for the creation ofa Kerr County Airport Authority" and
called for an election. Request Letter, supra note 1, at 1; see Act of May 19,1967, § 3, at 896-97
(providing for the creation and organization of the Authority). Prior to the election, the enabling
legislation required that "[t]he governing body ofthe city ofKerrville ... determine by majority vote
whether the directors [were] to be appointed or elected." Act of May 19, 1967, § 5(b), at 897. You
tell us that "the City of Kerrville chose to have the Board members appointed." Request Letter,
supra note 1, at 1. You indicate that in May of 1970 the election to create the Authority was held
and that the "Commissioners Court canvassed the votes and declared [that] the Kerr County Airport
Authority was created." Id.

       The Authority's enabling legislation provides the following regarding the appointment of
board members:

                (a) If the governing body of Kerrville determines that the directors
                are to be appointed, the Commissioners Court of Kerr County shall
                appoint them within 10 days after declaring the authority creat~d.

                (b) To be effective, an appointment to the board must be made after
                consultation with, and with the consent of, the governing body of
                Kerrville. The governing body shall express its consent by
                appropriate resolution.

i\ct of May 19, 1967, § 6(a)-(b), at 897. For reasons that are apparently no longer clear, the
Kerrville City Council and Kerr County Commissioners Court failed to agree upon and appoint the
board as contemplated in the enabling legislation. Request Letter, supra note 1, at 1. 2

         In the years since the election, you indicate that "the airport has been managed under either
the Texas Municipal Airport Authority or the Transportation Code." Request Letter, supra note 1,
at 1; see also Comm'rs Letter, supra note 2, at 2-3 (describing various actions taken by the City and
County as to the management ofthe airport). We understand, more specifically, that the airport has
been managed by ajoint board pursuant to state law, currently codified at chapter 22, Transportation
Code, and that this method ofmanaging the airport was initiated just prior to the May 1970 election.'
Request Letter, supra note 1 (Appendices C, D, & K indicating that the City and County took action
to establish ajoint board pursuant tothe Texas Municipal Airports Act on February 24, and February
25, 1970, respectively); Comm'rs Letter, supra note 2, at 2 (explaining that individuals were
appointed to an airport commission pursuant to the Municipal Airports Act just prior to the Airport
Authority election); see also TEX. TRANSP. CODE ANN. §§ 22.003 revisor's note (Vernon 1999)
(explaining that this law was formerly cited as the "Municipal Airports Act"); 22.074 (Vernon Supp.
2007) (providing for creation of a joint board).



         2See also Letter from Kerr County Commissioners Court, to Honorable Greg Abbott, Attorney General of
Texas, at 2 (Jan. 14,2008) (on file with the Opinion Committee) [hereinafter Comm'rs Letter].
The Honorable Rex Emerson - Page 3                     (GA-0621)



II.     Analysis

        A.       Legal status of the Authority

        We begin our analysis by examining the legal status ofthe Authority. Political subdivisions
such as the Authority are authorized by the State, and "[b]eing creatures of the State they can be
destroyed only by their creator." Watts v. Double Oaklndep. Sch. Dist., 377 S.W.2d 779, 780 (Tex.
Civ. App.-Fort Worth 1964, no writ); see also Act ofMay 19,1967, § 19, at 900 ("The [A]uthority
is a body politic and political subdivision of the state ....").

        We do not find that the Authority's enabling legislation has ever been repealed. Accord
Request Letter, supra note 1, at 1-2. And no provision for dissolution of the Authority is found in
the authorizing constitutional provision, the enabling legislation, or other state law. TEX. CONST.
art. IX, § 12; Act of May 19, 1967, §§ 1-29, at 896-903; cf, e.g., TEX. CONST. Art. IX, § 9
(providing for the dissolution ofhospital districts); TEX. WATERCODE ANN. § 49.321 (Vernon 2000)
(providing that certain water districts may be dissolved when they are inactive for a period of five
consecutive years). Without authorization, the Authority may not be dissolved. Tex. Att'y Gen. Op.
Nos. JC-0220 3 (2000) at 2 (concluding that a hospital district could not dissolve pursuant to an
election because there was no statutory authority to call and hold a dissolution election); WW-395
(1958) at 3 (explaining that absent specific authority and statutory procedure an inactive junior
college district could not be dissolved).

        Moreover, neither the failure to appoint the board of directors nor the nonuse of its
powers works to dissolve the Authority. Cf Baber v. City ofRosser, 770 S.W.2d 629, 631 (Tex.
App.-Dallas 1989, writ dism'd w.o.j.) (holding that a municipal corporation was not dissolved by
nonuse or failure to elect officers but rather would continue to exist until legally abolished); 'Tex.
Att'y Gen. Op. No. C-721 (1966) at 2 (explaining that inactivity or nonuse in itself will not abolish
a legally created entity). In sum, we conclude that the Authority is still in legal existence.

        B.       Activation of the Authority

       With the understanding that the Authority is still in existence, we tum to the question of
whether the Authority may "be utilized and the Board populated 37 years after [the] county election
and vote canvassing declaring [the] authority created." Request Letter, supra note 1, at 1. In a letter
received by our office from the City of Kerrville ("City"), the city attorney argues that because Kerr
County ("County") did not appoint the board of directors within the ten-day deadline set out in the
enabling legislation of the Authority, it may not now be established. 4




        3 This   opinion has been modified on other grounds by statute.

       4Letter from Michael C. Hayes, City Attorney, to Honorable Greg Abbott, Attorney General ofTexas, at 1(Nov.
29,2007) (on file with the Opinion Committee).
The Honorable Rex Emerson - Page 4              (GA-0621)



         The Authority's enabling legislation, as previously recited, does provide that "the
Commissioners Court of Kerr County shall appoint [the board members] within 10 days after
declaring the authority created." Act of May 19, 1967, § 6(a), at 897. To the extent the city
attorney's argument is premised on the fact that the 1970 commissioners court no longer exists to
exercise the power ofappointment, we do not believe this serves as a barrier. We believe that it was
the intent of the Legislature to vest the power of appointment in the commissioner positions, rather
than the specific persons who held those positions in 1970. See Tarrant County v. Ashmore, 635
S.W.2d 417,420-21 (Tex. 1982) (explaining that public offices belong to the people and are given
to particular officeholders temporarily in trust); Tex. Att'y Gen. Ope No. DM-140 (1992) at 2
(concluding that the current commissioners court could serve as the governing body of a drainage
district even though the enabling legislation spoke in terms of the governing board on the effective
date of the Act).

        To the extent the city attorney's argument is premised on the notion that appointments made
outside the ten-day window would be invalid, we also disagree. The court in Burton v. Ferrill, 531
S.W.2d 197 (Tex. Civ. App.-Eastland 1975, writ dism'd) considered whether the failure to timely
appoint temporary directors to a hospital district invalidated those appointments. 531 S.W.2d at
198-99. In that case, the hospital district's enabling legislation provided that "[o]n the effective date
of this Act, the Commissioners Court of Comanche County shall appoint five persons to serve as
temporary directors." Id. at 198. The court held that the timing requirement in the enabling
legislation was directory in nature and that the appointments did not have to be made on the effective
date of the legislation to be valid. Id. at 199. The court relied, in part, on the principle of statutory
construction that

                [i]f the statute directs, authorizes or commands an act to be done
                within a certain time, the absence of words restraining the doing
                thereofafterwards or stating the consequences offailure to act within
                the time specified, may be considered as a circumstance tending to
                support a directory construction.

Id. (quoting Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956)); see Helena Chern. Co.
v. Wilkins, 47 S.W.3d 486,495 (Tex. 2001); compare Sullivan v. Tex. Dept. of Pub. Safety, 93
S.W.3d 149,153-54 (Tex. App.-Beaumont2002, no pet.) (Burgess, J., dissenting) (discussing the
fact that when the statutory phraseology denies the exercise of a power after a certain time or
restrains performance after a certain time the statute is generally mandatory in nature); City of
Uvalde v. Burney, 145 S.W. 311,312 (Tex. Civ. App.-SanAntonio 1912, no writ) (explaining that
timing requirements expressed in the negative are necessarily mandatory).

         In the case before us no restraining words are attached to the requirement that the County
appoint the board members within ten days ofdeclaring the Authority created. Act ofMay 19, 1967,
§ 6, at 897. And the Legislature did not provide any consequence for noncompliance with the ten-
day requirement. Id. We look then to the statute's purpose in determining the proper consequence
of noncompliance. Helena Chern. Co. v. Wilkins, 47 S.W.3d at 494; Tex. Dep't ofPub. Safety v.
Dear, 999 S.W.2d 148,152 (Tex. App.-Austin 1999, no pet.). The stated purpose of the enabling
The Honorable Rex Emerson - Page 5                  (GA-0621)




legislation is "to implement the provisions of Section 12, Article IX, Constitution of the State of
Texas, by providing a method for the creation, administration, and operation of an airport authority
in Kerr County." Act of May 19, 1967, § 1, at 896. Utilizing the rules of construction set out herein
and giving reasonable effect to the legislative purpose of providing a method to create, administer,
and operate the Authority, we conclude that the ten-day appointment requirement is directory in
nature. To conclude otherwise would require the Authority to lie dormant. "A directory provision
is, by definition, one 'the observance of which is not necessary to the validity of the proceeding. ,,,
Dear, 999 S.W.2d at 151 (citation omitted). Thus, we conclude that appointments to the board of
the Authority may still be made as directed by the enabling legislation and.will not be invalid for
failure to comply with the ten-day deadline.

        Our conclusion here that the Authority may be activated thirty-seven years after its creation
by appointing a board of directors is consistent with a previous attorney general opinion that
considered similar issues. See Tex. Att'y Gen. Ope No. C-721 (1966) at 1-2 (concluding that a
junior college district could be reactivated some thirty years after its establishment by complying
with state law requirements as to the operation and governance ofjunior college districts).

        c.    Governance of the airport

        We now turn to your question of"[w]hether the alternate airport governance created by [the]
City and County after5 the 1970 election establishing the Kerr [C]ounty Airport Authority can legally
govern the airport." Request Letter, supra note 1, at 1 (footnote added). You assert that once
"the voters approved the Airport Authority and the Commissioners declared the Authority 'created'
 ... any other form of governance flies in the face of the voters' intent." Id. at 2.

       To answer your question, we focus on provisions of the Authority's enabling legislation.
Section 18 of the enabling legislation provides that the City and County

                 may sell, give, or lease their interest in any airport facility to the
                 authority. The transfer may be consummated without the city or
                 county giving notice of its intention to sell, give, or lease the airport
                 facility to the authority, and without an election on the part ofthe city,
                 county, or authority.

Act of May 19,1967, § 18, at 900; see also TEX. TRANSP. CODE ANN. § 22.080(a)(2) (Vernon 1999)
(providing a joint board may not dispose of an airport without the consent of each governing
authority of the board's constituent agencies). Conversely, the enabling legislation provides: "The
[A]uthority may acquire by purchase, gift, or eminent domain any interest in any existing airport
facility publicly owned and financed and served by a certificated airline." Act of May 19, 1967,
§ 14(a), at 899.



        5Based on the background information you provided and information from the County, we note that the joint
board was, in fact, created just prior to the May 1970 election. See supra p. 2.
The Honorable Rex Emerson - Page 6                     (GA-0621)



         Thus, the Authority did not upon its creation automatically take over any existing airport
facility. Rather, the enabling legislation contemplates that the Authority may acquire such facilities
and the City and County may sell, give, or lease such facilities. We have no information indicating
that the City and County have taken action to sell, give, or lease their interests in the 'airport to the
Authority or that the Authority has taken action to acquire the same. And we find nothing in article
IX, section 12 of the Texas Constitution, the Authority's enabling legislation, or chapter 22 of the
Transportation Code that expressly prohibits the operation ofa joint board in the same geographical
territory where an airport authority is established. 6 Unless and until the City and County take action
to sell, give, or lease their interests in the airport to the Authority, we conclude that the City and
County may manage the airport in any manner authorized by state law, including via a joint board.
See TEX. TRANSP. CODE ANN. § 22.074 (Vernon Supp. 2007) (providing for creation of a joint
board).




         6 We note that cities and counties are prohibited from acquiring or taking over an airport owned or controlled
by another city, county, or public agency of this state without consent. See TEX. TRANSP. CODE ANN. § 22.011(d)
(Vernon 1999); id. 22.001(6) (defining local government). To the extent one might argue the Authority is a "public
agency of this state," this provision would not serve as a barrier here because the City and County have not transferred
any interest to the Authority. That is, the Authority does not own or control the airport.
The Honorable Rex Emerson - Page 7           (GA-0621)



                                      SUMMARY

                      The KerrCounty Airport Authority ("Authority"), established
              in 1970, is still in legal existence, and the board of directors may be
              appointed. Because the City ofKerrville and County ofKerr have not
              sold, given, or leased their interests in the airport to the Authority,
              they may govern the airport via a joint board under chapter 22,
              Transportation Code.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee
