                   TEE     ATTORNEY            GENERAL
                               OF TEXAS


                               July   30, 1990



Honorable  Sam W. Dick                    Opinion   No. JM-1197
Criminal  District Attorney
Fort Bend County                          Re:   Authority   of an appraisal
Fort Bend County Courthouse               district to purchase     or   lease
Richmond,  Texas 77469                    real   property,     and    related
                                          questions     (RQ-1850)

Dear   Wr.    Dick:

      Subchapter  A of chapter 6 of the Tax Code governs          the
local administration     of  appraisal   districts.      YOU  ask   a
series of    six questions   regarding   specific    provisions    of
subchapter   A and the authority     of an appraisal   district    to
purchase   or lease   real property.    We  will address each      of
your questions   in turn.

       Your    first   question   asks:

                 Section 6.051(a), Texas Property Tax Code,
             provides   that the    board of    directors    of   an
             appraisal   district may purchase or lease real
             property   for an appraisal     office.   Subsection
             (b) of    Section 6.051     provides that     in   the
             'acquisition'     of    real     property     by
             appraisal    district,     three-fourths     of    2
             taxing units must approve the transaction.

                 Pertaining   to Section   6.951(b),   does   the
             word 'acquisition'    apply only to the purchase
             of real    estate   and/or construction     of    im-
             provements   upon real estate     or does it    also
             include lease of real estate by the appraisal
             district,   i.e., must    the board of    directors
             get   three-fourths      of  the    taxing     units
             approval to lease an appraisal      office?

We conclude    that the   three-fourths    approval   requirement          of
subsection   (b) of   section 6.051     of the Tax     Code does          not
govern the     lease  of real    property:     it governs    only         the
purchase    of   or  construction      of   improvements     to          real
property.




                                          p. 6323
Honorable     Sam W. Dick     - Page   2     (JM-1197)




      When the Property Tax Code was enacted in 1979 as title
1 of the Tax Code,      subsection    6.05(a) provided merely        that
Q'[e]xcept as authorized     by   Subsection    (b) of this     section,
each   appraisal    district      shall    establish    an     appraisal
office."    Subsection    (b) authorized     the board of      directors
of an appraisal     district to enter       into a contract,       either
with the board of directors       of another appraisal      district    or
with the governing     body   of a taxing. unit in the         district,
"to perform    the   duties of      the  appraisal    office    for   the
district."    No statutory      provision,   either in     the code     or
elsewhere,    explicitly     authorized     appraisal     districts     to
purchase   or lease real property or to construct          or   renovate
any improvements    thereon.

      The legislature,     after having been apprised of the fact
that several appraisal      districts    had purchased   buildings     or
entered into contracts      for the construction      or renovation    of
buildings   without the specific statutory        authority    to do so,
enacted section 6.051 of the code in 1987.            Acts 1987,     70th
Leg., ch. 55,      5 2, at    147.   The section    not only     confers
such authority     on appraisal    districts,  but also permits       the
ratification    of   an   acquisition     of  real    property    by   an
appraisal   district    that    occurred prior     to   the    section's
                                                                               --.
enactment.    Bill Analysis,     S.B. 312, 70th beg. (1987).

      Section 6.051 of the Tax Code             governs the ownership     or
lease   of   real  property by  an              appraisal  district      and
provides:

                (a) The board of directors  of an appraisal
            district mav DUrChaSe or lease real     DroDertv
             1
            and  ma  co   ru
            to establish  and operate the appraisal   office
            or a branch appraisal   office.

                 (b) The aco-uisition or convevance         of   real
            gor Der t v 0 r t he coilstruction    or renovation    of
            a    buildins     or    other    imDrovement     bv
            aDDraisa1     district    must be     aDDroved bv     tz:
            aovernina      bodies    of   three-fourths      of   the
             Ins
            fax'          *ts
            aDDointment       f board    member S.   The board      of
            directors      b;    resolution     may     propose      a
            property      transaction     or   other    action    for
            which this      subsection    requires     approval     of
            the taxing units.        The chief appraiser        shall
            notify     the     presiding      officer     of     each
            governing      body    entitled    to   vote    on    the
            approval    of the proposal by delivering          a copy
            of    the   board's     resolution,     together     with
            information       showing    the    costs    of     other




                                           P. 6324
Honorable     Sam W. Dick    - Page   3   (JM-1197)




            available  alternatives    to    the proposal.     On
            or before   the 30th     day after     the date   the
            presiding   officer     receives     notice  of   the
            proposal,  the governing     body of a taxing unit
            by resolution   may   approve or disapprove       the
            proposal.   If a governing       body fails to    act
            on or before that 30th       day or fails to     file
            its resolution   with the chief appraiser       on or
            before the 10th day after that 30th day,          the
            proposal  is treated as if it were disapproved
            by the governing    body.

                (c) The board     f directors   mav convev real
            prooertv     wned    bov the   district;      and    the
            proceeds   sEal1   be   credited to      e:ch    taxing
            unit that    participates     in the     district     in
            proportion   to   the unit's     allocation    of    the
            appraisal   district    budget    in the      year    in
            which the transaction       occurs.    A   convevance
            must be    aooroved as    nrovided bv      Subsection
            (b) of this section,      and anv DrOCeedS        shall
            be aooortioned    bv an amendment     to the     annual
            budaet.made   as orovided bv Subsection         (c) of
            Section 6.06 of this code.

                (d) An 'acouisition of real oronertv     bv   an
            annraisal  district    before Januarv     1,  1988.
            mav be validated    before March 1. 1988, in the
            manner nrovided     bv   Subsection   (b) of    this
            section for the acouisition      of real oronerty.
            (Emphasis added.)

      We understand   you to   ask whether the phrase        "acguisi-
tion or   conveyance   of   real   property"  comprises     only     the
purchase of real property or       whether the phrase includes         a
lease of real    property as     well.   While we    admit that      the
issue is a close one,       we think    that the   phrase does       not
include a lease of real      property.    We conclude that if        the
legislature   had intended that leases be included within            the
ambit of subsection      (b), it would have      employed the      term
"lease" explicitly    or the phrase *Vpossessory interest"        or   a
phrase such as *Vacguisition or conveyance       of a    interest     Jo
real property."

      On the one    hand, the phrase     Veal   property"   has   been
defined for some purposes by the courts to include leases or
leasehold  estates.      See, e.a.,    Iron Countv        State    Tax
Comm'n, 437   S.W.2d 665      (MO. 1968);   State Sazinas      & Loan
Ass'n v. Brvant, 81 P.2d 116 (Or. 1938).         On the other hand,
the phrase also has      been defined for     some purposes   not   to
include leases    or leasehold     estates.    See, e.a.,    D. P. C.



                                       P. 6325
Honorable     Sam W. Dick   - Page   4    (JM-1197)




peconstruction     Fin-e      Cork. V.    Assessor   of   Town   of
Johnsburg,   525.N.Y.S.2d   404 (N.Y. App. 1988); l.hIiversitv   of
Hartford    . Citv of     Hartford, 477   A.2d 1023    (Conn.  App.
1984); se: also Jack v. State,      694 S.W.2d 391 (Tex. App.      -
San Antonio 1985, writ      ref'd n.r.e.)   (lease  is a grant   or
devise of realty, usually for a term of years).

      In construing   a statute,    we may consider,       inter alia,
the legislative     history of    the   provision.     Gov't    Code    5
311.023.   An   examination    of   the   legislative      history    of
section 6.051 suDDorts our construction         that subsection      (b)
was intended by -the legislature       to   govern the purchase       or
sale of real property     or  the construction      or renovation     of
improvements   thereon.    The "Section by Section Analysis"         set
forth in the Bill Analysis       prepared by the Subcommittee         on
Property Tax of the House Ways and Means Committee             declares
that section 2 of the bill, which contained          section 6.051 of
the code:

            Adds a new Section 6.051 to permit          appraisal
             _.
            alsrricts    to   buy,   sell,    and   lease     real
            property   and construct    improvements    as needed
            to provide appraisal     district offices.        &&I
            purchase.    sale.     construction     Droiect      or
            renovation   Droiect must be aDDrOVed bv 314 of
            the   taxina    entities    entitled    to   vote    in
            elections   of   aDDraisa1    district     directou.
             (Emphasis added.)

No mention   is made in the underscored   sentence to leases    of
real property.      Additionally, tapes   of committee   hearings
indicate that the focus of the legislature's      concern was   on
the purchase   or sale of buildings   and land, not on the lease
of office space:

            Senator Jones:     A   number of    appraisal     dis-
            tricts across     the state    have acquired      pro-
            perty; there is no provision       in the    statutes
            authorizing   that.    S.B.   312 authorizes      [ap-
            praisal districts]      to   buy property     on   the
            vote   of   4/5   of   the   taxing    entities    who
            comprise the    appraisal    district.      They   can
            sell property   on    the same basis     -- if    they
            sell it -- then the proceeds       are   distributed
            to the taxing agencies       on the same basis       as
            they contributed     for the   years in which      the
            property was sold.       It clarifies   the existing
            situation.




                                         P. 6326
Honorable     Sam W. Dick     - Page   5     (JM-1197)




Hearings   on S.B. 312 before the Senate Committee  on Finance,
70th Leg. (Feb. 17, 1987) (tape available    from Senate  Staff
Services).

      Though a plausible      argument certainly    can   be made     in
support of the     proposition   that subsection      (b) of   section
6.051 of    the Tax    Code   embraces leases,     we think    that    a
better reading of the subsection       restricts   its scope to     the
purchase   and sale of real     property and the construction         or
renovation   of   improvements   thereon.     Therefore,   we    answer
your first question     in the negative:    the board of     directors
of an appraisal    district need     not seek the approval of       the
governing   bodies of three-fourths       of the taxing units      that
comprise the appraisal      district   in   order to    enter into     a
lease for office space.

      Your    second    question    asks:

                In the event the      answer to Inquiry No.         1
            is in the affirmative         that the     leasing    of
            real estate     is   included     in the      statutory
            intent of acquisition       (and assuming that       the
            appraisal   district can not get        three-fourths
            of the taxing units approval to lease            office
            space), how can     the appraisal      district    ,meet
            its   statutory     mandate     to     establish      an
            appraisal    office,    as    required     by   Section
            6.05(a)?

Because we answered your first question                  in the negative,    we
need not address your second question.

      Your    third    question    asks:

                Is a  county   prohibited     from giving    or
            leasing   office    space   to     the  appraisal
            district pursuant to     Section 263.001,    Texas
            Local Government   Code, i.e. before the county
            could allow the appraisal     district to use its
            property must    the county    follow the   proce-
            dures set out in Section 263.001?

      Chapter 263 of    the Local           Government      Code governs    the
sale or lease    of property by             the county.      Section   263.001
provides   the following:

                (a) The commissioners          court of a county,
            by an    order  entered         in   its minutes,   may
            appoint a commissioner          to sell or lease   real
            property   owned by   the       county.   The sale   or
            lease must be made     at       a public auction   held



                                           P. 6327
Honorable     Sam W. Dick     - Page   6     (JM-1197)




            in accordance  with   this section           unless   this
            chapter provides   otherwise.

                (b) The      appointed      commissioner     must
            publish notice of the auction before the 20th
            day before the date the auction is held.           The
            notice must     be   published   in   English   in   a
            newspaper    in the county      in which    the   real
            property    is located    and in    the county   that
            owns    the   real   property    if not     the   same
            county.     The notice must be published      once    a
            week for three      consecutive   weeks before     the
            date the auction is held.

                (c) If the real    property    is sold, a deed
            that is made on behalf      of the county by    the
            appointed  commissioner     in   conformance   with
            the order   entered under      Subsection   (a) and
            that is properly    acknowledged,      proved,  and
            recorded  is sufficient    to convey the county's
            interest  in the property.

      In Attorney     General     Opinion JM-335     (1985),   we    were
asked whether a county        must follow article 1577,       V.T.C.S.,
the predecessor      statute to     section   2~63.001 of    the   Local
Government    Code,    when    it     sells  its   county     hospital.
Specifically,    we were asked whether the county had to comply
with the provisions     of article 1577 in an instance        in which
two different    statutes,   which were enacted subsequent        to the
passage of article       1577, authorized     the contemplated       sale
and set    forth   procedures      with which    the   county    had   to
comply.    We concluded     that in     such a situation,     a county
need not comply with article 1577:

                The   source      of   your     concern     is     the
            statement     in   several     Texas    cases    that     a
            county u       comply with article 1577 in order
            to sell real estate.        See. e a      Ferauson      v.
            Halsell,   47    Tex.    421,   422' ii877);       Hardin
            m,                                112 S.W. 822       (Tex.
            Civ. App.     1908, no     writ).    Such    statements
            must be    read    in their     historical      context.
            The legal basis       for any action      by a     county
            must be found      in the     Texas Constitution        or
            statutes.     Canales
                          v.,                           214    S.W.2d
            451, 453 (Tex. 1948).          A conveyance     of    land
            by a county is void if it is            not done in       a
            manner prescribed      by statute.      Wilson v. Citv
            of CalhouD, 489       S.W.2d 393,      397 (Tex.      Civ.
            APP.    -  Corpus     Christi     1972,   writ      ref'd
            n.r.e.).    Article    1577    states that      counties




                                           P. 6328
Honorable     Sam W. Dick        - Page    7    (JM-1197)




            ~13y sell real estate     in accordance    with    its
            provisions.     Absent     other    authority      for
            selling real estate,      however,   a county    &
            sell real estate     in accordance    with    article
            1577 or not at all.      15 Tex. Jur. 2d Counties
            § 88.    Clearly,    when   counties     sell     real
            estate   by   other   means    authorized     by   the
            constitution    or   statutes,     compliance    with
            article 1577 is not mandatory.        &S    Ferouson
            y. Ii-,       47 Tex. at 422 (1877).

Attorney     General        Opinion    JM-335   at l-2.

       Section 292.001 of the   Local              Government   Code   provides
the   following in pertinent  part:

                (a) The commissioners       court    of a    county
            may purchase,    construct,    or provide by      other
            means, or may reconstruct,       improve, or      equip
            a building   or   rooms, other      than the     court-
            house, for the housing of county or           district
            offices, county or       district courts,       justice
            of   the   peace    courts,    county    records      or
            equipment     (including    voting     machines),     or
            county jail facilities,       or for the conducting
            of other    public    business,     if   the    commis-
            sioners court determines       that the     additional
            building    or    rooms    are    necessary.         The
            commissioners    court may purchase      and    improve
            the necessary    site for the building       or rooms.

                .   .   .   .

                (c) The commissioners   court mav lease     or
            rent to anv nerson    anv Dart of the    buildinq
            or rooms  that    are  not  necessarv    for   the
            Pm         described     bv   Subsection       a.
            (imp::%   added.)

      We construe    section   292.001 to    constitute   the   "other
means" by which a county is authorized         to enter into a lease
agreement   with   an   appraisal    district,    thereby   rendering
compliance   with section 263.001 of the Local Government         Code
unnecessary.     Therefore,   we  answer your     third question     in
the negative.

      Your    fourth        question    asks:

               Can the county lease   office space to    the
            appraisal  district  through    an   interlocal
            agreement,  pursuant   to  Article   4413(32c),




                                            P. 6329
Honorable     Sam W. Dick       - Page    8     (JM-1197)




            V.T.C.S.,   Texas    Interlocal  Cooperation             Act,
            disregarding    Section 263.0017

We answer     your   question     in the      negative.

      Subsection        4(a)     of   the       Interlocal    Cooperation   Act
provides:

                Any local government   may contract or agree
            with one or more local governments     to perform
            aovernmental   functions     and servicee   under
            terms of this Act.     (Emphasis added.)

Subsection      3(2)      defines        "governmental         functions    and
servicesn     in the    following     way:

                   'Governmental     functions     and   services'
               means all     or   part    of   any    function    or
               service    included     within     the     following
               general    areas:      police    protection       and
               detention      services:       fire     protection;
               streets,    roads,      and    drainage;      public
               health    and    welfare;     parks;    recreation;
               library services;      museum services:      records
               center services:      waste disposal;     planning;
               engineering;       administrative        functions;
               public funds      investment:     and   such    other
               governmental     functions which are of mutual
               concern to the contracting         parties.

      Subsection       4(b)    provides       in pertinent   part:

                The agreements      or contracts    may be for the
            purpose    of    studying      the   feasibility      of
            contractual     performance     of any    governmental
            functions    or   services     or   may   be   for   the
            performance     of any governmental      functions    or
            services which all narties to the contact are
            leaallv authorized       to oerform, provided       such
            contracts     or     agreements     shall     be    duly
            authorized    by    the   governing     body   of   each
            party     to     the     contract     or     agreement.
             (Emphasis added.)

The act has been construed    not to confer on any governmental
entity the substantive   authority   to perform any governmental
function or service, but rather it confers on a governmental
entity the authority   to perform a governmental     function     for
another governmental   entity that    it already was    authorized
to perform.    See, e a      Attorney General    Opinions     JM-891
(1988): H-392 (1974); ;I128 (1973).



                                            p. 6330
Honorable      Sam W. Dick    - Page    9     (JM-1197)




      We need   not determine      whether the     leasing of     office
space by one political      subdivision   to another in order       that
the other political     subdivision    may perform its governmental
functions    falls   within    the   definition      of  OOgovernmental
functions  or services."      The Interlocal     Cooperation   Act does
not authorize   expressly    a county to lease its excess         office
space to   another     political   subdivision:     however,     section
292.001 of    the   Local    Government     Code   does.     Therefore,
because of our     answer to your      third question,    we   conclude
that a county      may   lease    office    space   to   an   appraisal
district pursuant    to section 292.001 of the Local Government
Code.

        Your   fifth   question     is in two parts       and     asks:

            5. Section 6.05,    Texas Property     [Tax] Code
            provides that   the   board  of    directors  can
            contract with taxing units to perform duties.

                  (a) Can the board   of directors                contract
                  for office  space  or   is this                provision
                  limited to 'duties' only?

                (b)   Is a contract    entered into   pursuant
                to subsection    (b) of Section     6.05   also
                limited to the    approval of   three-fourths
                of the taxing units?

        Section     6.05   of the     Tax     Code    provides      in    pertinent
part:

                (a) Except as       authorized    by    subsection
            (b) of this section, each appraisal           district
            shall establish      an   appraisal     office.     The
            appraisal    office     must   be   located     in   the
            county for which the district        is established.
            An appraisal    district may       establish     branch
            appraisal    offices     outside    the   county     for
            which the district      is established.

                (b) The      board     of   directors   of   an
            annraisal'    district     mav  contract  with   an
            aooraisal    office in another district    or  with
            a taxina unit in the district to Derform        the
            duties    of    the   annraisal   office  for   the
            district..     (Emphasis added.)

      In the   context    of political    subdivisions,     the   word
"duties" refers     to those   responsibilities     imposed   by   the
constitution   and   laws of   this state.      See, e.s     Citv    of
Galveston   v.  Galveston   County,    159 S.W.2d    976 ;Tex.    Civ.




                                            P- 6331
Honorable     Sam W. Dick   - Page       10 (JM-1197)




APP. - Galveston     1942,   writ ref'd):     Welch,                 148
S.W.2d 876 (Tex. Civ. App. - Dallas 1941, writ ref'd).              The
"duties of the appraisal     office" are those       responsibilities
set forth in the Tax Code; nowhere do we find the leasing of
office space to be such a duty.        We have found no      authority
to support the    contention    that the    phrase "to perform      the
duties of the appraisal     officeO'   includes any duty to       lease
office space.    Subsection     (a) of section     6.051 of the     Tax
Code sets forth the authority       of an appraisal    district   board
of directors   to lease office space: section 6.05 confers            no
such authority.    Therefore,    we answer the first part of your
fifth question   in the negative:     section 6.05 of the Tax Code
does not   authorize   an   appraisal   district     to lease    office
space.

      The second part of your       fifth question    is answered     by
an examination   of   the plain words       of section 6.05     itself.
No mention  is made in section 6.05 of making the exercise            of
any power   conferred    by   that    section contingent     upon    the
approval of any of the governing        bodies of any of the taxing
units comprising     the    appraisal    district.     Therefore,     we
answer the    second   part     of  your    fifth   question    in   the
negative;  a contract entered into pursuant to subsection            (b)
of section 6.05 does not require the approval           of any of    the
~governing  bodies    of    the    taxing    units   comprising      the
appraisal  district.

      Your    last   question    asks:

                In the event the county could lease office
            space to the appraisal    district under Section
            263.001 or Article     4413(32c),   would Section
            6.051 reguire~ three-fourths    approval   (assum-
            ing your answer     to question   1 suora. is    in
            the   affirmative),    of   the   various   taxing
            units?

Because of our answer to your first question,   we answer your
last   question   in   the negative.  We  conclude   that   the
three-fourths   approval requirement set forth in   subsection
(b) of section 6.051 of the Tax Code does not govern     leases
of real property.

                                SUMMARY

               The three-fourths      approval requirement      of
            subsection    (b) of   section 6.051     of the    Tax
            Code does not govern leases of real property;
            it governs     the   purchase    or   sale   of   real
            property   and the    construction    or   renovation
            of improvements    thereon.     Section 291.001     of




                                          P. 6332
.
    Honorable     Sam W. Dick     - Page    11 (JM-1197)




                the Local Government       Code authorizes     a county
                to   lease    its   excess     office    space    to    an
                appraisal      district:       therefore,        section
                263.001    of   the    Local    Government     Code     is
                inapplicable      in the       situation     that     YOU
                describe.      Section     6.05    of   the   Tax    Code
                permits    the     board    of     directors     of     an
                appraisal   district to      contract with       another
                appraisal   district or another taxing unit             in
                its county to perform appraisal          functions,     as
                defined in the Tax       Code; it does not        confer
                authority   on an     appraisal    district to      lease
                office    space    from     another     taxing      unit.
                Contracts   properly    entered into by the         board
                of   directors      of fan      appraisal      district
                pursuant   to section 6.05 of the Tax Code need
                not be approved       by the    governing    bodies     of
                three-fourths      of   the     taxing    units      that
                comprise the appraisal       district.               -




                                                  L/ /b
                                                    Very   truly   yo


                                                         A
                                                    JIM      MATTOX
                                                    Attorney General     of Texas

    MARY KELLER
    First Assistant       Attorney      General

    LOU MCCREARY
    Executive  Assistant       Attorney     General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant  Attorney           General

    RKNEA HICKS
    Special Assistant        Attorney     General

    RICK GILPIN
    Chairman,  Opinion       Committee

    Prepared by Jim Moellinger
    Assistant Attorney General




                                             P. 6333
