THE ATTORSEY 

### GESEKAL
OF TRS,~S

September 20, 1989

Honorable Dale Hanna Johnson County Attorney First Floor, Courthouse Cleburne, Texas 76031 Opinion No. JM-1097

Re: Whether Johnson County has the option of creating acounty industrial commission instead of aboard ofdevelopment (RQ-1692)

DearMr. Hanna:

You ask three questions regarding the application of sections 381.001 and 381.002 of the Local Government Code to Johnson County. Your questions are as follows:

1. Does aCounty with apopulation census figure of 67,000 in 1980have the option of forming aCounty Industrial Commission under Section 381.001 or is itrequired to form a Board ofDevelopment under Section 381.002?

2. If Section 381.001 isavailable, can the County expend funds fromthe general fund topromote industrial development without an election pursuant to Section 381.002?

3.' If Section 381.002 is the exclusive choice, what options are available to a County, with apopulation census figure of 67,000 in 1980,as to appropriating funds for industrial growth anddevelopment?

Your questions are based on the law prior to its amendment by the 71st Legislature. The adoption of Senate Bill 24,which amends section 381.002,Acts 1989, 71st Leg., ch. 1060, §2,at 4306,has questions and the answers.1 changed both the sense of your Your questions numbered one and three indicate thepopulation ofJohnson County, and prior

1. The effective date of Senate Bill 24wasAugust 28, 1989.Honorable Dale Hanna -Page 2 (JM-1097)

to the amendment the population was a significant consideration. However, the amendment deleted population brackets that had limited the application of section 381.002 to counties with apopulation ofmore than 50,000. We now conclude that any county may act under either of the sections.
First, we will examine the provisions of the two statutes about which you inquire. Section 381.001 allows the county judge of any county to appoint a County Industrial Commission to "investigate andundertake ways of promoting the prosperous development ofbusiness, industry, and commerce inthe county." Local Gov't Code 5 381.001(f). That section allows the county to "pay the necessary expenses of the commission." Id. 13381.001(e). The commission isrequired to cooperate with and use the services of the Texas Department ofCommerce. Id. 5 381.001(g), as amended byActs 1987, 70th Leg., ch. 374, g8(e), at 1871.

Wewill discuss section 381.002 as amended by Senate Bill 24, and our subsection citations will refer to the section as amended. Section 381.002 creates a board of development inall counties. Local Gov't Code § 381.002(b). The county commissioners court appoints themembers of the board, which isrequired to "devote itstime and effort to advertising andpromoting thegrowth anddevelopment of the county." Id. 5 381.002(b), (c). That section also allows counties to appropriate funds and to levy a tax for the purposes of the board butmakes such appropriation or tax subject to apopular vote and sets aceiling on the rate. Id. 5 381.002(a). Subsection (g)recognizes that "a county may operate under another lawauthorizing the appropriation ofmoney or levy of a tax for advertising and promotion purposes" but extends the appropriation and tax limitations established by subsection (a)to counties operating under another law. Id. § 381.002(g).

This office examined these two provisions prior to their inclusion inthe Local Government Code. In Attorney General Opinion JM-516 (1986),we said:

A county has authority topromote thedevelopment of businesses and industries in the county through acounty industrial commission established under article 1581g-2, V.T.C.S. [nowLocal Gov't Code § 381.001], or through
aboard of development established under article 2352d, V.T.C.S. [nowLocal Gov't Code § 381.002].Honorable Dale Hanna -Page 3 (JM-1097)

Attorney General Opinion JM-516 (1986).

In that earlier opinion wedid notdiscuss the populationbracket thathad limited the application of section 381.002 because it was not relevant. NOW, with the 1989 amendment to section 381.002, the legislature has clearly indicated its intent that any county may operate under that section. Section 381.001, which allows the county judge of any county to appoint acounty industrial commission, similarly applies to all counties. It is clear that any county may actunder either section.

Your second question is whether acounty acting under section 381.001may expend funds from thegeneral fund to promote development without an election. Section 381.001 does not require an election prior to the expenditure of funds, and it allows the county to pay the "necessary expenses" of the commission. Local Gov't Code 5 381.001(e). We caution, however, as noted above, subsection (g) of section 381.002 extends the limit onappropriations found in subsection (a) ("anamount not to exceed fivecents on the $100 assessed valuation") to counties operating under another law.

We need not answer your third question because we have concluded that Johnson Countymay operate under either of the two sections.

SUMMARY

Inorder to create acounty level agency and to appropriate county funds to promote development inJohnson County, the county may operate under either section 381.001 or section 381.002 of the Local Government Code. Any appropriation under either section may not exceed the ceiling established by section 381.002(a). If operating under section 381.002, any appropriation must be approved inadvance bya majority vote of the county electorate.

/V-f; yJf&

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney GeneralHonorable Dale Hanna -Page 4 (JM-1097)

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Karen C.Gladney Assistant Attorney General