       OFFICE   OF THE ATTORNEY         GENERAL    OF TEXAS
                              AUSTIN
                                                       I




Honorable John R. Shook
Grlminal Distriot AttOlTmy
San AntaniO, Texas
Dear Sir;            AttentiOSll       &‘.




                                                o? ArtloXe EMOh,
                                               statutes, $6 an

                                             opinion of thin depert-
                                             ed bee bsen rsoalved.


                                     or Artlols lmvh or
                                     of Texee Of 19&E, en
                                     t any 9ountp may ab-
                                   on or purohare land for
                                   such county, oould euoh



                      nnty therefor?w
                  rtiole ta whioh you refer (Astiole 1869h,
R. 0. S., 1985) does not give the ofamaii~loners   oourt suoh
authorlt~y,   either arpre86ly or tipliddly, and the To&m
appellate odurte have aonsietentlpadhered to the prinolpl.6
that the oomnlssion%reoourt oan ereroies only auah authar-
ity aa is conterred upon them by the Gonetltutlanand the
statutes    of thP6 State+
Ronorabla John R. Shook, paga Z


         Bland v. Om, 39 S. W. 558;
         Xill~OU~un~y~4Lampaaas County,
                -,
         h’unn-“;pl~rau’~bliahing
                                Coqany v.
             Hutohison County, 45 S.W. (2d) 651;
         Hogg v. Campbell, 48 S.W. ad) 5131
         Ladman ‘I.State, 97 S.W. t2d) 8641
         El PM; County V. Elam, 106 3.W. (8d)
                i
         Howard V* Banderron Ccmty, 116 R.W.
          Dod,!i”!.‘~!k&izi,,118 S.W. (2d) 081.
          Counties obtain the power and authority to dlspoae
of their real a&ate by tha provisions of Artlola 1377, Ra-
vised Civil Statuhae of 1OeS, whloh reads a8 follawar
         *Artdale X397. The oowaieslonarsoourt
    may, by an order to be antarad on its ruinutae,
    eppolnt a aammIqaion%rto eel1 and dlopoaa of
    any real estdtcl OS a oounty at pub110 euatlon,
    The deed of auoh aomraisalona’r,made in aontom-
    ity to auoh order for and in behalf of the oounty,
    duly aoknowledgadand approved and reoorded shall
    be suffloientto oontay to th% purohaaaraall
    the right, tltla and Interest and estate whiah
    the county mey have in ana to the premises to ba
    COnveyad* Kathing oontained In thfa artiala
    shall authoriea any oommIssion%rsoourt to dia-
    posa of say lands @van, donated, or qxantad to
    suoh aounty for the purpose of eduoation in any
    other manner than shall be.dlrsoted by law.”
          The oonetruoticagenerally plaaad upon this statute
wea laid down by Chief Justiae Roberta In an asrly Taxaa aa8a
08 r011ower
          ?!The@mare1 doctrine la, that a8 the aounty
     court is tha agent of tha aountg, in its oar rata
     oapr,oIty,it muat oonform to the ada presorrbed
     for Its aotlcn In tha ax%roIaa or the powers oon-
     ridad ta ita The psesaribing of a mode of axaraie-
     ing a power by auoh 8ubordinatea@moiee of the,
     Govern&exitbaa often been hsld to be a reatriotion
     to tkt tsOda‘* FerSuson Y. Wlalaell,47 T’ex.421,
     (18771‘e
                                                                     2


    Honorable John R. Shook, page 3


              In the oase from whioh we have quoted, the Supreme
    cturt set aside a deed by whioh the oommissloneraoourt at-
    tempted to transfer title to some of the oounty'e real es-
    tate in satisfactionof a clsin against the oounty.
              Shortly after the above ease was deolded, Justioe
    Stayton in Yooters V. Eall, 01 Tex. 15, (lSS4) reaffirmed this
    oonstruotlonond held that oounty land could be sold only in
    the manner provided by statute, and oould not be given away.
              Thereafter the Colurtof Divil Appeals in two oases
    deolsred that the oounty oosnniasionersocurt has no author-
    ity whatsoeverto donate any of the oounty's real estate to
    any person for any purpose. Llano County v, Knowles, et al.,
    29 3. r. 549 and Llano County V. Johnson, et al., 29 S. W. 56.
              The following language   was   used by the oourt in
    both these casea:
              "The oomaiasionerst oourt of the oounty oooupy
         towards its property a trust relation, and they oan
         only dispose of its property in the aanner required
         by law, and for purposes that are in keepin with
         the trust they reRresentr They have no right to
         donate the ocuntg property, or dispose of it 80 as
         to virtually amount to a donation. It is a trust
         estate, and the prlnoiptee of equity will not per-
         mit them to be liberal and generous with property
         they do not own, end whioh they hold in trust for
         Rublio purposes."
              A rnoent ass8 by the Commiseion of Appeals shows a
    continuedadherence to this prinolple. 9ee Dreaben v. Xhite-
    hurst, (Cona. App., seotion A, 1934) 66 3. W. (2d) 1025.
              This department has uniformly placed the same construo-
    tion upon this statute thnt has been placed upon it 3y the oourts.
    We enolose s oopp of Opinion PO. O-1779, in whioh the power of
    the oommisslonereoourt to donate or-nntyreal estate is consi-
    dered, and in which this department held that a county nay dis-
    pose of its land only in the menuer presoribed by statute.
             The Forty-sixth Leeieleturedeviated slightly from
    the re;auiremant'th,at
                         county lands be sold only at publio auotion.
    By .artiole52420, Revised Zivll Statui.es,enacted as House Bill




I
Ronorable John R. Shook, page 4


30. 922, Aots of 1939, oountias are authorized to sell ex-
oeas real estate to the Federal Gwernment et a private
sale, for e fai.roonsideratlon. An outright donation oan
hardly be oonsldereda aomnlianoawith the requirement that
a fair oonsiderntionbe paid and we know of no statute or
conetitutionalprovisio~n ws;iohpermits a aounty to waive pay-
ment of a fair considerationfor oounty owned real a&ate
under any oiroumstenoes.
          .%nyother method of dispoainp,of such land by the
oonuaisalonersoo?lrtwith6ut oonaiderationwould be subject
to the same lt~itr.tions,and would likewise be beyond the
powers of the oommiseioneraoourt.
          You are, therefore,respeotfullyadvised that It
is the opinion of this departmentthc2tyo::x!question thould
be answered in the negative, and it is 60 answered.
                                     Your8 very truly
                                  ATTORREYGENERAL OF TEXAS


                                          Peter   Msnlroaloo
                                                   Aasiatant
PMrdb        API’ROVEDsEP
                        30, 1940

             u.u
             ATTORNEY GENERAL OF TEXAS
