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June 20, 1952 

Hon. George M. Kelton Opinion NO. V-1468 

County Attorney. 

Ector County Re: Authority of the CommisOdessa, Texas sioners' Court to issue 

bonds and levy and collect taxes to build a 

livestock and mineral 

products exhibit building on a tract of land 

which is subject to a 

Dear Sir: mineral lease. 

Your request for an opinion of this office 

reads in part as follows: 

11 

. . . your office is respectfully requested to furnish an opinion as to whether 

or not the Commissioners' Court of~Ector 

County, Texas, is authorized to issue negotiable bonds of the County and~to levy and 

collect taxes in payment thereof for the purpose of building a permanent building to be 

used f~or live stock.and mineral products exhibits, on a loo-acre tract of land which 

said land is subject to an oil and gas lease." 

It was held in.Adams v. McGill, 146 S.W. 2d 

332 (Tex. Civ. App. 1940, error ref.) that counties 

could build such buildings under the &ovisions of 

Article 2372d, V.C.S.~, but had no authority to issue 

bonds for this purpose. Article 2372d-2, V.C.S., was 

subsequently enac~ted in order that the.construction 

of these buildings might be accomplished through the 

issuance of bonds. Att'y. Gen. Op. v-962 (1949). Therefore, if the commissioners' courthas authority to construct the building it has equal authority to issue 

bonds and levy taxes for this purpose, assuming, of 

course, that the taxes levied will not increase the tax 

rate for permanent improvements to an amount which exceeds that established under Section 9 of Article VIII 

of the Constitution of Texas. 
Hon. George Me Kelton, page 2 (v-1468) 

._ 

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The only question for determination is 

whether the existence of the oil and gas lease will 

prohibit the commissioners' court from constructing 

the building in question. 

In Brazes River Conservation Reclamation 

District v. Adkisson, 173 S.W.2d 294, 298 (Tex. Civ, 

App. 1943, error ref.), it is stated: 

"An oil and gas lease carries with it 

the right to possession of the surface to 

the extent reasonaibly necessary to enable 

the lessee to perform the obligations imposed upon him by the lease." 

854, 

that 

In Grubstake Inv. Ass'n. v. Coyle; 269 S.W. 

855 (Tex. Civ. App. 1925, error dism.), it is stated: 

ltIn the construction of an oil lease contract.such as this, it must be construed most 

strongly against the lessee, for he is contracting only for the right to bore for minerals 

beneath the surface of the earth. He acquires 

no title to the surface, or any other right, 

except for the sole purpose; that is, a use 

and easement of the surface. Since that is 

the case, in a controversy such as this, the 

lessor retains and has parted with no surface 

rights to the use of the land for any purposes 

save the mineral rights, and what incidentally 

and contractually goes with that right. The 

contract gives 'the right of ingress and 

egress at all times for the purpose of drilling and mining and operating for oil and gas 

and other minerals, and he shall have the exclusive right to drill well, lay pipe lines, 

build tanks, and other structures.' These 

rights are sec'ure and prior to any right of 

appellees. 0oD 

"It was a question of fact as to whether 

the occupancy by appellees of the small part 

of the 20-acre lease did interfere with the 

reasonable use in the development of appellanks ' oil and mineral use under the surface. 

a** 

Based on the above authorities it becomes obvious 

an answer to your question presents one of fact which __ 

-- 

this office can neither pass upon or answer categorically. 
. . 

Hon. George M. Kelton, page 3 (v-1468) 

If, however, the aonstruction.of the building will not 

interfere with the rights of the lessee Under the provisions of the oil and gas lease and further if the operations under the provisions ,of the oil and gas lease will 

not prevent the use of, the building for the purpose of 

exhibiting livestock and mineral products, it is our 

opinion that the commissioners' court of Ector County may 

issue bonds and levy and collect taxes for the purpose of 

building a permanent building to be used for this purpose, 

This opinion is limited to oil and gas leases 

generally and does not purport to pass upon any specific 

provisions or reservations which may appear in the lease 

in question since we have not been furnished with a copy 

thereof. In this connection, as a matter of practical 

relations with the lessee, it would probably be wise for 

the commissioners' court to advise the lessee of its plans. 

SUMMARY 

The Commissioners' Court of Ector County 

is authorized to build a livestock and mineral 

products exhibit building on a tract of land 

owned by the county which is subject to a 

mineral lease if the construction of the building will not Interfere with the rights of the 

lessee under the provisions of the lease and 

if the operations under the oil Andy gas lease 

will not prevent the use of the building for 

the purpose of exhibiting, llvestock and mineral 

products. Under Section 2 of Article 2372d-2, 

V.C.S., the county may issue bonds for this 

purpose. 

Yours very truly, 

APPROVED: 

J. C. Davis, Jr. 

County Affairs Division 

PRICE DANIEL 

Attorney General 

Mary K. Wall 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

BA:am