                                The Attorney           General of Texas
                                                 March 13. 1986
JIM MAlTOX
AttorneyGeneral

                                Eouorablc Henry Wade                Opinion PO. JH-489
s~premoCourt
           Building             District Attorney
P. 0. BOX t2yB                  Services Building                   Re: Wbcther a cmty   my, by auction,
Aus,,“. TX. 78711. 2548         Dallas, Texas 75202                 lease courthouse space to be used by
51214752501                                                         a private cafeter(Z
Telex 910187+1367
Tslecoqisr 5W475-0266
                                Dear Mr. Wade:

714 Jackson. Suila 7w                You have InEozmed us that the Dallas County Comissioners Court
Dallas. TX. 752024506           wishes to lease e,pace ovned by Dallas County lccated in the Cccnty
214l742-8W
                                Government Center. The court proposes to lease tte space to a private
                                business to opemte a cafeteria. Pou have also lxfomed us that the
4824 Alberta Ave.. Suite 160    area was originally designed and built for use as a cafeteria. and
El Paso. TX. 799052793          contains county wned cafeteria equipment which till be leased with
91Y5353464                      tha space. The commissioners court also proposes that all utilities
                                will be provided and maintained by the county at no cost to the
 1001 Texas. Suite 700
                                lessee. Finally, you have informed us that it is the intent of the
 Houston, TX. 77002~3111        county to obtain for the county treasury the greatest amount of rent
 71322M886                      that may be obtaijmed through the competitive prccess. In that regard
                                you have requested our opinion on the authority of the commissicters
                                 court to lease the space and vhat procedures should be utllizet.
 806 Broadway. Suite 312
 Lubbock. TX. 79401-3479
 80617476230                       The Dallas Colmty CoasaissionersCourt has only the powers conferred
                                either expressly or by necessary implication by ebe constltutior.st.d
                                statutes of this state. See Tex. Coast. art. 7’. 518; Canales v.
 43X N. Tenth, Suite S          Laughlin, 214 S.W.2d 451. 453 (Tex. 1948). The SFxty-third Legisla-
 McAllen. TX. 78501.1685
 512682-4547
                                ture amanded art,Lclc 1577. V.T.C.S., to read as fcllous:

                                             The Commissioners Court may. by an crder to ba
  MO Main Plaza. Suite 4M)                enteres on its minutes, appoint a Condssloncr to
  San Antonio, TX 782052797
                                          sell or lease any real estata of the county at
  51212254191
                                          public au=.      and notice of said public auction
                                          shall be advertised at least tventy (20) days
  An Equal OPPo~u~itY~                    before the day of sale. by the officer, by having
  Aftirmative Action Employer             the notice thereof published in tF.a English
                                          language once a vcek for three (3) consecutive
                                          veeks preceding such sale or lease in a nevspaper
                                          in the county in which the real estate is located
                                          and in the county   which owns the real estate, if
                                          they arc not the same. (Emphasis added).

                                 See Acts 1973, 63rd Leg., ch. 449. 51, at 1329. Bus, we believe chat
                                 the cafeteria r.pace vithin the County Gove-t        Ceptcr is ccunty
                                 owned “real estzts” within the meaning of article 1577.



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Honoreble Renry Wade - Page 2   (a-449)




     The authority of a county commissioners court to lease space
within a courthouse to a private business mey be exercised under
limited circumstances. The commissioners court must determine whether
the use of the rental spsce will not interfere with the proper use of
the courthouse. and whether    it is nacessary  to the  convenience of
those transacting businew in the courthouse. See Dodson v. Marshall.
118 S.W.2d 621 (Tex. Civ. App. - Waco 1938. xc       dism'd); see also
Attorney General Opinion PSI-200 (1980); but see Tarrant County v.
Rattikin Title Co., 199 S.H.2d  269 (Tex. Civ. App. - Fort Worth 1947,
no writ) (commissioners court is not authorized to lease office space
to private enterprise whd.ch was originally erected for use of public
office).

     Article   1577  requiras the commissioners court to follow a
specified procedure befl)re leasing county-owned real     estate. We
believe that this   statutory procedure is -mandatory and the commis-
sioners court is not allou'edto deviate from Its standards. See State
v. Pox, 133 S.W.2d 987 ~:Tex.Civ. App. - Austin 1939, writrem
Thus, article 2368a.5, V.T.C.S.. the County Purchasing Act. which
provides a procedure to assure competitive bidding in regard to county
purchases does not apply to leases. See V.T.C.S. art. 2368a.5. 13(a);
see  also Attorney   General Opinion %z385   (1985). Pou provide no
information indicating that  a contract for services is also involved
with this lease. If so, a contract for services must be separated and
dealt with under the competitive bidding statutes.

     Rowever, as quotet, above. article     1577  only specifies the
procedure the commissionor:court is to follow before a public auction
is held to lease county-owed real estate. The provision does not
specify the mode by which a bid is to be made and other procedures for
conducting the public auction. Under such circumstances. the Texas
Supreme Court has stated:

              Where a ri:ght Is conferred or obligation
           imposed on sa.id ~commissioners] court, it has
           implied authority to exercise a broad discretion
           to accomplish .:IIc
                             purpose intended.

 Anderson v. Wood, 152 S.W.2d 1084. 1085 (Tax. 1941). The legislatura
 in amending srtlcle 1577 :Lntendedthat s public auction be held before
 leasing county owned real estate. V.T.C.S. art. 1577. Therefore, the
 commissioners court has tha discretion to accomplish this purpose.

      A pub&z auction is the sale or lease of property to the highest
 bidder by means of competition for the purpose of a fair price, and
 should be fairly conducted. See Kolbo v. Blair, 379 S.W.2d 125 (Tex.
 Civ. App. - Corpus Cbristi 1964,writ ref'd n.r.e.); see also Attorney
 General Opinion V-1148 (1951); 7 Tex. Jur. 3d Auction h Auctioneers
 51. at 524. You are s?trcificallyconcerned about the manner of bid
 required before s lease pursuant to article 1577 is valid. You
 suggest that a sealed l):;dmay be necessary. We are of the opinion


                                p. 2039
Eonoteblo Ronry Wad. - Pager3    (a-449)




that the comisaionecrs court may USC full diecretion in conducting the
auction so long as the intentions of the bidder are plainly indicated
and fair competition  la insured for all parties participating. Cf.
Bell County V. Pelta, 120 S.W. 1065 (Tu. Civ. App. 1909). rev’dx
other grounds. 132 S.W. 1123) (Tu. 1910) (sale of county real estate
by public auction requires public outcry). Although bids probably may
be made anonymously. w: do not believe that the auction may be
conducted with just a aecil.ed
                             bid. The amount of the bid must be open
so that competing bidders may raise their bids In response.

     You have also aske,i whether a person appointed by the county
conmlaaionera court to t,onduct a public auction pursuant to article
1577 may be a person other than a “county conmiasioaer”. We think
not. Article 1577 requi::c:sthat a comniaaioaers court may “appoint a
commissioner” to lease cxunty-owned real eatatt, See V.T.C.S. art.
1577. The words of this provision are clear and unambiguous on this
point. See Attorney Ger,e,ral Opinion V-477 (1948) (person must be a
member ofthe com~Isaionc!racourt). Accordingly, we conclude that the
person appointed by tha! cmmisaioners court to execute the lease
itself and to oversee a public auction to award the lease of county-
ovued real estate under article 1577 must be a member of the county
comdaaionera court. Tke auctioneer need not, however, be a county
commissioner.

                                SUMMARY

             Article 15Y7, V.T.C.S., requires the Dallas
          County Comis~doaera   Court to conduct a public
          auction to leuae apace in the County Government
          Center to private business to be used as a
          cafeteria.   ‘Ihe commissionera court is also
          required to determine whether the lease of the
          apace vi11 not: Interfere with the proper use of
                        , and whether the lease agreement
          the courthoua<:
          will afford a convenience to those transacting
          business in the courthouse. The coemiaaioners
          court has some discretion to specify what type of
          bids may be, submitted for consideration at a
          public auction to lease county-ovued real estate.
          Sealed bids, t,owever,would defsat the purpose of
          a public auczion. Finally, article 1577 also
          requires that the person appointed by the cosmia-
          sioners court to oversee a public auction be a
          member of the commissioners court.




                                                    HATTOX
                                            Attorney General of Texas


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Honorable    Aenry   Wade -   Pagct 4    (Jn-449)




JACK    EIGBTOUER
First    Assister& Attorney     Gmeral

MARY KELLER
Executive Assistant Attorney            General

ROBERT GRAY
Special Assistant Attorney (General

RICK GILPIX
Chairmen, Cpinion Committee

Prepared by Tony Guillory
Assistant Attorney General




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