,




                       THEATTOIRNEY                GENERAL
                                   OF    TEXAS
                               AUSTIN.   TEXAS     78111
    WAGGONER   SCAHW

                                  August 11, 1964


          Honorable Frank W. Raymond, Jr.          Opinion No. C- 292
          Director
          Texas Aeronautics Commission             Re:     Whether Article 46c-6,
          203 West 16th Street                             Vernon's Civil Statutes,
          Austin, Texas                                    could be amended to au-
                                                           thorize the grant of duly
                                                           appropriated funds to in-
                                                           corporated cities for the
                                                           construction of airports
                                                           and navigational facili-
                                                           ties without viol.ating
                                                           Section 51 of Article III
          Dear Mr. Raymond:                                of the Texas Constitution.
                    You have requested an opinion on whether Article 46c-6,
          Vernon's Civil Statutes, could be amended to authorize the grant
          of duly appropriated funds to Incorporated titles for the construc-
          tion of airports and navigational facilities without violating
          Section 51 of Article III of the Constitution of Texas.
                       Said proviso of the Constitution states as follows:
                    "The Legislature shall have no power to
               make any grant or authorize the making of any
               grant of public moneys to any individual, as-
               sociation of individuals, municipal or other
               corporations whatsoever; . . .
                    However, the Courts of Texas have interpreted this
          constitutional restriction as preventing the granting or giving
          away of public money for other than governmental purposes. The
          Courts have said that it is permissible to grant state funds to
          municioal coroorations where the monev is nranted for a DUrDOSe
          that i'sgover*nmental. See Shelby County VT Allred, 123 Tex: 77,
          65 S.W.2d 164 (1934).
                       Article 46d-15, Vernon's Civil Statutes, states as
           follows:




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Hon. Frank W. Raymond, Jr., page 2 (C-292)


          "The acquisition of any land or interest
     therein pursuant t this Act, the planning, ac-
     quisition, establiihment, development, construction,
     improvement, maintenance, equipment, operation, regula-
     tion, protection and policing of airports and air
     navigation faciliti    I ldi     the acquisition or
     elimination of airp%   h~~a~ds~gand the exercise of
     any other powers herein granted to municipalities
     and other public agencies, to be severally or
     jointly exercised, are hereby declared to be public
     and governmental functions, exercised for a public
      urpose, and matters of public necessity; and in
      he case of any county, are declared to be county
     functions and purposes as well as public and govern-
     mental; and in the case of any municipality other than
     a county, are declared to be municipal functions
     and purposes as well as public and governmental.
     ?Zllland and other property and privileges acquired
     and used by or on behalf of any municipality or
     other public agency in the manner and for the
     purposes enumerated In this Act shall and are
     hereby declared to be acquired and used for public
     and governmental purposes and as a matter of public
     necessity, and, in the case of a county or munlci-
     pality, for county or municipal purposes, respectively."
     (Emphasis added)
          The Fifth Circuit Court of Appeals and the Supreme
Court of Texas have stated that the aforesaid Article is valid.
In Imperial Production Corp. v. City of Sweetwater, 210 F.2d 917,
(5th Clr. ly54), the Fifth Circuit said:
          I,
           * . .In the light of the then existing
     law, we can see no effective meaning to be given
     to Article 46d-15, other than that the designation
     of the functions therein as being public and
     governmental carried with it all of the consequences
     which such a designation entails, including exemption
     of the municipality from tort liability.
          11
           . . .
          "It is clearly within the province of the
     legislature, when acting reasonably and not ar-
     bitrarily, to determine whether an act that may
     be performed by a city is public in its nature
     and performed as the agent of the state in fur-
     therance of general law for the interest of the
     public at large and, hence, governmental. . . .'

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Hon. Frank W. Raymond, Jr., page 3 (C- 292)


           The Supreme Court of Texas, In City of Corsicana v.
WG,    159 Tex. 202, 317 S.W.2d 516, 520 (nb5j, stated:
           "In Imperial Production Corp. v. City
      of Sweetwater, 5 Cir., 210 F.2d 917, a dis-
      tinguished court, accustomed to dealing with
      Texas law questions, held for city immunity
      in a case substantially identical with the
      present and in so doing expressly sustained
      the constitutionality of the relevent pro-
      visions of Art. 46d-15, supra, and relied
      upon it. . . .
           "We agree with the line of cases just
      referred to and find nothing unreasonable
      in either Art. 46d-15 or the earlier statute,
      Art. 1269h, Sec. 3. . . .'
          Since the Legislature has declared by statute that
the operation of airports by municipalities and other govern-
mental subdivisions is a public and governmental function, and
such statute has been upheld by the above court decision, in our
opinion Article 46c-6, Vernon's Civil Statutes, could be amended
to authorize the grant of duly appropriated funds to incorporated
cities for the construction of airports and navigational facilities
without violating Section 51 of Article III of the Constitution of
Texas. However, this opinion answers only the question as to
whether said Article could be so amended and does not purport to
approve or disapprove the amendment proposed in your letter.
                      SUMMARY
           Article 46c-6, Vernon's Civil Statutes, can
      be amended to authorize the grant of duly appro-
      priated funds to incorporated cities for the cons-
      truction of airports and navigational facilities
      without violating Section 51 of Article III of the
      Constitution of Texas.
                                Very truly yours,
                                WAGGONER CARR
                                Attorney General



                                      Roy B. Johnson
RHJ:mkh                               Assistant

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Hon. Frank W. Raymond, Jr., page 4 (C- 2%)


APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Paul Phy
Kerns Taylor
Ivan Williams
George Gray
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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