November 3, 1964

Honorable Jack N. Fant Opinion N6. C- 342 CountyAttorney El Paso County Re: Whether the Commissioners El Paso,Texas Court of El Paso County has authority to lease the Coliseum to private lndlvlduals for the purpose of conductinga furnlDear Mr. Fant: ture sale.

You have posed the following question:
%oes the Commissioners Court of El Paso County have authority to lease the Coliseum to private Individual8 for the purpose of conducting a furniture sale?'l

Your request for an opinion reads In part as follows: I, .&me five or sixweeks ago, the county entered into a lease agreementwith a Mr. Oeorge Malooly, who Is a local retail furniture store chain owner, and a Mr. Hurst, who Is connected with the National Furniture Institute of California, for the rental of the El Paso Coliseum to Mr. Halooly and Mr. Hurst, for a period of some five days' duration, from August 30th through September 5th, 1964, when the Coliseum was not being used for sny other purpose and thepurpose of the least? was for Mr. Malooly **and** Ur. Rurst to conduct a furniture sale which in fact was more or leas a wholesale furniture sale,which was open to the public with sales and deliveries made directly from the floor of the Coliseum. El Paso County realized as a consideration for theuse of said Coliseumby Malooly and Hurst the sum of $2075.00 for their five days' use of said building for their public firnlture sale In said Coliseum.

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Hon. Jack N. Fant,page 2 (C-342)

"VariousotherEl Paso retail furniture dealers and theEl'Paso Retail Furniture Dealers Association, a corporation,threatened to file an application for a temporaryrestraining order against GeorgeMalooly dba National Furniture Instituteand the County of El Paso for the rea8ons that they claimedthat the El Paso County Coliseum Ispublic property governedby the Commlaslonere~ Court and that theuse by Malooly and Hurst of thispublic property for the purpose of a private sale for their own benefit. dolna business as the National Furniture Institute,wae Illegaland In violation of and that theuse of said Co11 Hurst was for a privateuse forprivate gain, and was In competition with otherprivate commercial enterprises and that through their tax payments,made the facilities available and that such a sale in a public building such as the Coliseumwould cause Irreparabledamage to the El PasoRetail Furniture Dealers.
'The suithowever was not filed by the Retail Furniture Dealers andMalooly and Rurst conducted their sale on the Coliseumpremises and the County received Its $2075.00 consideration for the five days' term of the lease. The Commissioners1Court of El Paso County and the El Pa86 County Coliseum Manager thereafterrequestedme to obtain a ruling or an onlnion from sour o~fflce as to the author1t.Y of the &mmissloner~t Court of the Countyby virtue of Arts. 2372d, 2372d-2and 2372d-3,V.T.C.S., to rent or lease ita coliseumbuilding and adjacent livestockbuilding fof;the purpose.
. .setforth and explained.

. . . The CommissionersCourt Is a court of limited jurisdiction and has only suchpowers as are conferredupon It by the statutesand Constitution of this State, either by express terms or by necessary ImplIbatIon. Improvements constructedby the County cannotby implicationbe made available for lease on the samebasis as are like improvementsconstructedby private business lnstltutione. Attorney Oeneral'sOpinion O-6915 (1945).

Article 232d-3, Vernon's Civil Statutes, limits the purpose forwhich Improvementsconstructedpursuant to Articles 23726, 2372d-2 and 23726-3,may be used. Said Article reads In part as follows:

-1623-Hon. Jack N. Fant,page 

### 3 (C-342)

I,

. . . %ec. 2. The Commlseloners Court shall have authority to permit theuse of such exhibits, buildings or improvementsfor any useful public purpose which, In the opinion of the Court,will be of benefit to the county and It8 citizens.

"What constitutes a public purpose oruse as contradlstlngulshedfrom a private purpose for which public fundsmay be applied fid forwhich public facilitiesmay be used7 has-been repeatedly before the courts of practicaly every etate In the Union and the Supreme Court of the United States. Eut no court hasundertaken to lay down with minute detail an inexorablerule that would dlatingulsh the one from the other. Obviously no such rule couldbe laid down. What was once a public purpoeemay now be obsolete through progress and ch~~~~on$c, aoclalrand political conditions. private purpose even a generation ago has often throughmodern Inventions and the complexities of commnlty life become now esaentlally a publicuse and necessity. Consequently themodern trend of decision 18 to expandand liberally construe the term 'publicuse' In considering state andmunlclpa; activities sought to be brought within itsmeaning. Bland v. City of Taylor, 

### 37 S.W.2d 291 (Tex.Clv. App. 1931, affirmed 123 Tex. 39, 

### 67 S.W.2d 

### 1033).
The determination of what constitutes a public purpose Is primarily a legislative function which the Legislaturemay delegateas It has done by Seation 2, Article 2326-3. The determination of that matter la subject to review In the courtswhen abused, but shouldnot be reversed, "except In Instanceswhere the legislativedetermination of th$ question ISpalpably and manifestly arbitrary and Incorrect. Neal v. Boog-Scott, 247 S.W. 

### 689, 691 (Tex.Clv.App. 1923). And If there be any doubt as to whether the purpose questioned be a public use, the legislative determination thereof should aontrol. Brown v. Galveston, 97 Tex. 

### 1, 75 S.W.488 (1?03).

Mindful of the above, we must stillhold that the lease for a private furniture salewhether wholesale or retail in nature, 18unauthorized.

-1624Hon. Jack N. Fant, Page 4 (C-342)

We can findno subservienceto any public purpose of said sale. The clear Impact of the language of Articles 

### 23726, 23728-2and 2372d-3 Is that facllltles constructedpursuant thereto were to be used only In behalf of the public. Any other lnterpretatlon of saidArticles would render them of doubtful constitutionality as violative of Section 

### 3,Article XT, and Section 52, Article III of the Texas Constitution.

From all actlvltlee lnwhich the public engages, benefits and detrlme'nts.,.naturally accure to Individuals, and It Is normal that thereby some individual8will be helped or hurt more than others In the community at large. This does not prohibit public activity. The use of public facllltlesby private entrepreneurs If services such as they provide are necessary to the proper enjoyment of the facllltlesby the public and if they are charged
a reasonable rate for the facilitiesused, has been held authorized by implication. Dodson v.Marshall, 

### 118 S.W.2d 

### 621 (Tex.Clv.App. 1938, error dlsmlased).

But when the only justlflcatlon for entering Into a lease Is that the public 

### ~113benefit aa landlord, such benefit Is lnsufflclent to convertwhat would otherwise be a privateuse Into a public use, "and In a sensewould be applyingpublic property for privateuse which Is against the laws of our state." Tarrant County v. Rattlkin Title Company, 199 S.W.2d 269, 272 (Texr APP. 

### 1947).

We, therefore,hold that the Commls8loners Court Is not authorizedunder Articles 2372d, 232d-2 or 292d-3, Vernon's Civil Statutes, to rent or lease its Coliseum to private Individuals for thepurpose of canductlng a furniture sale.

You have also referred to some twenty-five additional events and purposes for which the Coliseum Is leased. We deem It unnecessary to COnSider each lndlvlduallya8 Section 2 of Article or each determinationby the Commls

### 3 Section 2, states that the Commissioners court shall lease 8uch &lldlngs and improvements 'forany which, In the oplnloflof the Court, will be y and It8 citlZen8.
SUMMARY
The CommlsslonersCourt of El Paso County ha8 no authority to lease the County Coliseum to private lndlvlduals for the purpose of conducting a furniture sale.

-1625-Ron. Jack N. Fant,page 

### 5 (C-342)

Very truly yours, WAGGONER

CARR Attorney General

By aL : Gordon Houser Assistant
GH:mkh
APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman Malcolm ?&lck C. L. Snow George Black J. C. Davis
APPROVEDFORTHEAT%l= GgNERAL BY: Roger Tyler

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