November 3, 1964 

Honorable Jack N. Fant Opinion N6. C- 342 

County Attorney 

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 conducting a 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 six weeks ago, the county 

entered into a lease agreement with 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 the purpose 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 the use of said Coliseum by 

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) 

"Various other El Paso retail furniture 

dealers and the El'Paso Retail Furniture Dealers 

Association, a corporation, threatened to file an 

application for a temporary restraining order 

against George Malooly dba National Furniture Institute and the County of El Paso for the rea8ons 

that they claimed that the El Paso County Coliseum 

Is public property governed by the Commlaslonere~ 

Court and that the use by Malooly and Hurst of 

this public property for the purpose of a private 

sale for their own benefit. dolna business as the 

National Furniture Institute, wae Illegal and In 

violation of and that the use 

of said Co11 Hurst was for a 

private use for private gain, and was In competition 

with other private commercial enterprises and that 

through their tax payments, made the facilities 

available and that such a sale in a public building 

such as the Coliseum would cause Irreparable damage 

to the El Paso Retail Furniture Dealers. 

'The suit however was not filed by the Retail 

Furniture Dealers and Malooly and Rurst conducted 

their sale on the Coliseum premises and the County 

received Its $2075.00 consideration for the five 

days' term of the lease. The Commissioners1 Court 

of El Paso County and the El Pa86 County Coliseum 

Manager thereafter requested me to obtain a ruling 

or an onlnion from sour o~fflce as to the author1t.Y 

of the &mmissloner~t Court of the County by virtue 

of Arts. 2372d, 2372d-2 and 2372d-3, V.T.C.S., to 

rent or lease ita coliseum building and adjacent 

livestock building fof; the purpose. . .set forth 

and explained. . . . 

The Commissioners Court Is a court of limited jurisdiction and has only such powers as are conferred upon It by the 

statutes and Constitution of this State, either by express terms 

or by necessary ImplIbatIon. Improvements constructed by the County 

cannot by implication be made available for lease on the same basis 

as are like improvements constructed by private business lnstltutione. 

Attorney Oeneral's Opinion O-6915 (1945). 

Article 232d-3, Vernon's Civil Statutes, limits the 

purpose for which Improvements constructed pursuant to Articles 

23726, 2372d-2 and 23726-3, may be used. Said Article reads In 

part as follows: 

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Hon. Jack N. Fant, page 3 (C- 342) 

I, 

. . . 

%ec. 2. The Commlseloners Court shall 

have authority to permit the use of such exhibits, 

buildings or improvements for 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 or use 

as contradlstlngulshed from a private purpose for 

which public funds may be applied fid for which 

public facilities may 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 has undertaken to lay down with minute 

detail an inexorable rule that would dlatingulsh the 

one from the other. Obviously no such rule could be 

laid down. What was once a public purpoee may now 

be obsolete through progress and ch~~~~on$c, 

aoclalr and political conditions. 

private purpose even a generation ago has often 

through modern Inventions and the complexities of 

commnlty life become now esaentlally a public use 

and necessity. Consequently the modern trend of 

decision 18 to expand and liberally construe the 

term 'public use' In considering state and munlclpa; 

activities sought to be brought within its meaning. 

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 Legislature may 

delegate as It has done by Seation 2, Article 2326-3. The determination of that matter la subject to review In the courts when 

abused, but should not be reversed, "except In Instances where 

the legislative determination of th$ question IS palpably 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 still hold that the lease 

for a private furniture sale whether wholesale or retail in nature, 

18 unauthorized. 

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

We can find no subservience to any public purpose of 

said sale. The clear Impact of the language of Articles 23726, 

23728-2 and 2372d-3 Is that facllltles constructed pursuant thereto 

were to be used only In behalf of the public. Any other lnterpretatlon of said Articles 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 ln which the public engages, benefits 

and detrlme'nts.,.naturally accure to Individuals, and It Is normal 

that thereby some individual8 will be helped or hurt more than 

others In the community at large. This does not prohibit public 

activity. The use of public facllltles by private entrepreneurs 

If services such as they provide are necessary to the proper enjoyment of the facllltles by the public and if they are charged 

a reasonable rate for the facilities used, 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 ~113 benefit aa landlord, such benefit 

Is lnsufflclent to convert what would otherwise be a private use 

Into a public use, "and In a sense would be applying public property 

for private use 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 

authorized under Articles 2372d, 232d-2 or 292d-3, Vernon's 

Civil Statutes, to rent or lease its Coliseum to private Individuals 

for the purpose 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 lndlvldually a8 Section 2 of Article 

or each determination by the Commls3 Section 2, states that the Commissioners court shall lease 8uch &lldlngs and improvements 'for any 

which, In the oplnlofl of the Court, will be 

y and It8 citlZen8. 

SUMMARY 

The Commlssloners Court 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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