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November 6, 1961

Honorable Jarvis Wieser Opinion No.WW-1194 County Attorney Gillespie County Re:Whether it ismandatory or disFredericksburg, Texas cretionary on the part of the Commissioners' Court to call an airport bond election; whether a county may legally issue negotiable securities for the purpose stated in thepetition: and whether proceeds may be used to construct abuilding tobe leased toa private corporation for its Dear Mr. Wieser: use inmanufacturing aircraft.

Inyour letter requesting an opinion of this office, you state that apetition has been presented to the Commissioners' Court of Gillespie County requesting that an electionbe ordered ". . .tovote on thematter of authorizing the issuance of negotiable bonds of Gillespie County, Texas, for thepurpose of improving, operating andmaintaining the airport of Gillespie County, Texas, and providing suitable structures and facilities therein
. . ." You have asked the following questions:

"1. Assuming thepurpose forwhich bonds are sought tobe issued as set forth in apetition is legal, is thematter of calling an election discretionary on the part of theCommissioners' Court, or is it mandatory? "2
. May a county legally issue negotiable securities for the purpose and under the circumstances set forth in the foregoing statement and enclosure, following a favorable majority vote of qualified voters?. -

Honorable Jarvis Wieser, page 2 (WW-1194)

"3
. Assuming abond election iscalled

**‘ For**  the purpose of improving, operating and maintaining theAirport of Gillespie County, Texas, and providing suitable structures and facilities therein', and a favorable majority vote of thequalified taxpaying voters resuits, may themoney realized from thebond issuebe used for the purpose of constructing hangar typebuildings tobe leasedby the county to aprivate corporation for its use inmanufacturing aircraft?"
Inyour brief, you quote fromArticle 1269h, V.C.S., and we assume that thebonds contemplated will be issued pursuant to the provisions of this article. Said article authorizes the Commissioners' Court of any county to issue negotiable bonds of the county and to levy taxes toprovide for the interest and sinking funds of anybonds so issued

"For the purpose of condemning orpurchasing, either orboth, lands tobe used andmsintained as provided in Section 1hereof, and improving and equipping the same for such use, . . .'I This article further provides that the authority given for the issuance ofbonds and the levy of taxes is tobe exercised in accordance with the provisions of Chapter 1 of Title 22 of the Revised Civil Statutes of 1925 (Art. 701 et seq., V.C.S.). This chapter, **in** Art. 701,V.C.S., provides that -

"Thebonds of a county . . .shall never be issued for any purpose unless aproposition for the issuance of suchbonds shall have been first submitted to thequalified voters who are property taxpayers of such county,

II

. . . . Said chapter provides also for details of the required election, such as submission of the proposition and its contents,Honorable Jarvis Wieser; page 3 (WW-1194)

time of election, notice of election, and the form of the ballot. There is,however, no provision whatsoever for a petition requesting that an election be called or requiring that an election be called when apetition is presented. Therefore, in answer toyour first question, it is the opinion of this office that thematter of calling an election under the stated circumstances is entirely discretionary on the part of theCommissioners' Court.

In order for aCommissioners' Court to lawfully issue negotiable securities of a county, there must be express authority to issue such securities for the stated purpose. It isnot apower tobe implied. Lasater v. Lopes, 110 Tex. 179, 217 S-W.373 (1919). The petition towhich you refer asks for an election for securities for thepurpose of II

. . .improving, operating andmaintaining the airport
. . ." Article 1269h. V.C.S., authorizes negotiable bonds for the purposes set out above. In other words, under Article 126911, a county may issue negotiable securities to acquire land to be used and maintained as an airport, and for N . . .imorovinq and equipping the same for such use.," (Emphasis added). These are the only purposes forwhich negotiable bonds are authorized by Article 1269h. While thepurpose clause in the petition does include "improving", which isan authorized purpose, it also includes "operating" and "maintaining", for which purposes there isno authorization. We are of the opinion that the purpose clause must stand or fall as awhole. Therefore, since thepurpose clause stated in thepetition contains elements forwhich there isno authorization, a county may not legally issue negotiable securities for the purpose stated in the petition which has been presented to the Commissioners' Court ofGillespie County.

Your third question is answered in the negative, for the following reasons:

The Texas courts have consistently held that the Commissioners' Court is a court of limited jurisdiction and has only such powers as are conferred upon it, either by express terms orby necessary implication, by the statutes and Constitution of this State. Childress County v. State, 127 Tex.343, 92 S.W.2d 1011 (1936);Von Rosenberg v. Lovett, 173 S-W.508 (Civ.App. 1915, error ref.); Roper v. Hall,Honorable Harvis Wieser. Page 4 (WW-1194)

280 S-W.289 (Civ.App. 1925); Art. 2351,V.C.S.; 11 Tex. Jur. 632, Counties, Sec. 95.

The authority to lease all or part of any airport or property connected therewith which is conferred by Art. 1269'31,

supra, is only for some use which is connected with themaintenance and operation of an airport. Attorney General's Opinion No.V-1162 (seeattached copy). It is the opinion of this office that themanufacturing of aircraft by aprivate corporation isnot ause which is connected with the operation andmaintenance of an airport, and, therefore, the Commissioners' Court isnot authorized to lease buildings to aprivate corporation for its use inmanufacturing aircraft.
SUMMARY

Since there isno statutory provision for a petition under Article 1269h, V.C.S., the petition which has been presented to the Commissioners' Court has no legal effect and the calling of an election as requested by the petition isdiscretionary on the part of the Commissioners' Court. The Commissioners' Court may not legally issue negotiable securities for the purpose stated in the petition. The Commissioners' Court may not use the proceeds of such abond issue tobuild hangar typebuildings tobe leased toaprivate corporation for its use inmanufacturing aircraft.

Very truly yours,
WILL WILSON Attornev General of Texas

RTL-s Rbbert T. Lewis ' Assistant.-

Honorable Jarvis Wieser, page 5 (WW-1194)

APPROVED:
OPINION COMMITTEE
W. V.Geppert, Chairman Riley Eugene Fletcher Norman V. Suarez Linward Shivers

REVIEWED FOR THEATTORNEY GENERAL By: Houghton Brownlee, Jr.