Opinion No. O-1805 

Re: Does the Commissioners Court 

have the authority to grant a 

franchise to the Central Power 

& Light Company to cover County 

of Brewster, Texas? 

Your request for an opinion on the above stated question has been 

received by this office. 

The powers which the comnissioners court may exercise are defined 

in the Constitution in the following language: 

"The county cpmmissioners court, . . . with the county 

judge, as presiw officer, shall compose the County Commissioners Court, which shall exercise such powers s@ jurisdiction over all county business, as Is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." (Article 5, Section 18, Constitution of the State 

of Texas.) 

The general rule governing powers and limitations of the county commissioners court -as set out by the Supreme Court in Commissioners Court v. 

Wallace, 15 S.W. (2d) 535, reads as follows: 

"'The commissioners court is a creature of the state constitution, and its powers are limited -13 controlled by the 

constitution and the laws as passed by the legislature.' Article 5, Section 18, Constitution of Texas; Baldwin v. Travis 

County, 88 S.W. 480, Seward v. Falls County (Tex. Civ. App.), 

246 S.W. 728; Blank V, err, 39 S.W.'558." 

Articles 2351through 2372f, Revised Civil Statutes, 1925, as amended, 

set out the various powers and. duties of the commissioners court and. are too 

lengthy to set out In this opinion. However, It should be pointed out that 

none of the before-mentioned articles, directly or Indirectly, give the commissioners court the power to Issue a county franchise to an electric light and 

motor power company. 
Hon. A. M. Turney, Page 2 (O-1805) 

In Texas Jurisprudence, Vol. 19, at pp. 876-879, we find the following language in regard to franchises: 

"TO be a franchise the right must be of such a nature that, 

without express legislative authority, it cannot be exercised 

. . . The legislative department of the government is the source 

of the grant of a franchise, . . . The legislature, unless constitutionally inhibited, may exercise its authority by direct 

legislation, or through agencies duly established having power 

for that purpose." 

It is a well-established rule that the commissioners court may exercise only those powers specifically designated by the Constitution or the statutes. (Mills County v. Lampasas County, 90 Tex. 606, 40 S.W. 403; Van Rosenberg 

v. Lovett, 173 S.W. 508; Miller v. Brown, 216 S.W. 452.) Add to that rule 

the fact that a franchise Is a very special privilege only given by direct 

legislative grant or by a specially delegated agency, and we must reach the 

conclusion that the county commissioners court does not have the power to grant 

a county franchise to an electric company. 

In the case of Edwards County v. Jennings, 33 S.W. 585, wherein a 

county commissioners court attempted to contract for a water supply not only 

for county purposes but for the use of private citizens, the Court made the 

following statement: 

"That the commissioners court would have the authority to 

contract for a sufficient water supply for jail and courthouse 

there can be no room for doubt; but when we have a contract not 

onlv to su~ulv the necessities of the Dublic buildina. but to 

supply the--general public with water, &d providing ?;or special 

privileges as to laying pipes, a very different question Is presented. Counties are political or civil divisions of the state, 

created for the purpose of bringing government home to the people, and supply the necessary means for executing the wishes of 

the people, and bringing into exercise the machinery necessary 

to the enforcement of local government. Counties, being component parts of the state, have no powers or duties except those 

clearly set forth and defined in the constitution and statutes 

. . . Looking to the powers granted by the legislature by virtue 

of the above constitutional provision, we find that no authority 

is given the commissioners' court to enter Into such contracts 

as the one sued on in this case,.. It is clear, therefore, that 

the attempted contract was beyond the power and authority confided In the county commissioners;..." 

Therefore, it is the opinion of this department that the commissioners court would not have the authority to grant a franchise to the Central 

Power & Light Company to cover the County of Brewster, Texas. 
Hon. A. M. Turney, Page 3 (O-1805) 

It should be pointed out t&at this opinion does not cover the right 

of the county conrmissionsrs court to grant easements over county roads and 

property or the right of a utility company to secure easements under Article 

1435 anh Article 1436, Revised Civil Statutes, 1925, as amended. 

Yours very truly 

ATl!ORNEY G!UERAL OF TEXAS 

By /s/ Frederik B. Isely 

Frederik B. Isely 

Assistant 

FBI:pbp:lm 

APPROVED JAN 22, 1940 

/a/ Gsrald C. Mann 

ATpOPxNEYGENERALOFTEXAS