Opinion No. 

### O-1805 Re: Does the CommissionersCourt 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 questionhas been receivedby 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 countybusiness, as Is conferredby 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 governingpowers and limitations of the county commissioners court-asset out by the Supreme Court in CommissionersCourt v. Wallace, 

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

"'The commissionerscourt is a creature of the state constitution,and its powers are limited -13 controlledby the constitutionand 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 shouldbe pointed out that none of the before-mentionedarticles, 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 cannotbe exercised

...The legislative department of the government is the source of the grant of a franchise,
... The legislature,unless constitutionally inhibited,may exercise its authorityby direct legislation, or through agencies duly establishedhaving power for that purpose." It is a well-establishedrule that the commissioners courtmay exercise only those powers specificallydesignatedby the Constitution or the statutes. (MillsCounty v. Lampasas County, 90 Tex. 

### 606,40 S.W. 

### 403;Van Rosenberg v. Lovett, 

### 173S.W. 

### 508;Miller v. Brown, 

### 216 S.W. 452.) Add to that rule the fact that a franchise Is a very specialprivilege only givenby direct legislative grant or by a specially delegatedagency, and we must reach the conclusionthat the county commissionerscourt 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 countypurposes but for the use of private citizens,the Court made the following statement:

"That the commissioners courtwould have the authority to contract for a sufficientwater 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 ?;orspecial 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 governmenthome 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 constitutionand statutes

... Looking to the powers grantedby the legislatureby virtue of the above constitutionalprovision,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 contractwas beyond the power and authority confided In the county commissioners;..." Therefore, it is the opinion of this department that the commissioners courtwould 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 shouldbe 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 easementsunder Article 

### 1435anh Article 

### 1436,Revised Civil Statutes, 1925, as amended.
Yours very truly ATl!ORNEY

G!UERAL OF TEXAS

By /s/ FrederikB. Isely

Frederik B. Isely

Assistant FBI:pbp:lm

APPROVED JAN 22, 1940 /a/ Gsrald C. Mann ATpOPxNEYGENERALOFTEXAS