HE L'% ORNEY GENERAL OP%?EXAW

Honorable DormanNickels CountyAttorney Wharton County Wharton, Texas Attention: Mr. M.S. Munson, Jr. Dear Sir: Opinion No. O-4972 Re: Woulda county or city of the State of Texas be authorized to acquire the site for anairport by lease from an lndivldual; instead of purchasing sameas provided in Articles 1269h, Vernon's Annotated Civil Statutes, andrelated questions? Your letter of November 4, 1942, requesting the opinion of this department on the questions stated therein reads as follows:

"I would appreciate your advising mewhether or not in your opinion, a city or county of the State of Texas, would be authorized under the terms of Art. 1269h of the'Revised Statutes, or any other Statute, to do the following acts; "(1) Acquire the site for an airport by lease from an individual, instead of purchasing sameas provided in saia Art. 1269h. "(2) Appropriate moneyof such County or City to pay the rental therefor without a bona issue. "(3) Erect with County or City moneya hanger upon such premises, andpay necessary maintenance charges including salaries of guards. "(4) Acquire andmaintain such an airport in the mannerabove stated, to be operated,,and managed by the membersof the Civil Air Patrol. Article 1269h, Vernon's Annotated Civil Statutes provides in part:Honorable DormanNickels, page 2 o-4972

“Section 1. A--That the governing body of any Incorporated city in this State mayreceive through gift or dedication, and is hereby empowered to acquire, by purchase without condemnation or by purchase through condemnation proceedings, and thereafter maintain and operate as an airport, or leas’e, or sell, to the Federal Government, tracts of land either within or without the corporate limits of such cftg andwithln the county in which such city is situated, and the Commissioners’ Court of any county maylikewise acquire, maintain and operate for like purpose tracts of land within the limits of the county.

“B--That the governing body of any Incorporated city in this State mayreceive through gift or dedication, and is hereby empoweredto acquire by purchase without condemnation, ana thereafter maintain and operate as anairport, or lease, or sell to the Federal Government, tracts of lard without the county in which such city Is situated, provided said tracts are not within five 

### (5)miles of another Incorporated city that has a population of more than fifteen hundred (1500) people, according to the last preceding Federal Census.

“C--That the governing body of any incorporated city in this State may, ana Is hereby empowered, to acquire through condemnation proceedings, tracts of land located without the county in which said city is located, proviaea saia tracts of land are within SIX 

### (6)miles of the oountg boundary of the county in which said city is located, and.are not within five (5) miles of another Incorporated city having a population in excess of fifteen hundred 1500) people, aoooraing to the last preceding Federal Census; and that said. city maythereafter maintain and operate as an airport, or lease, or sell, sala tracts to the Federal Government; provided, however, that the grant herein madeto acquire land through condemnation prooeedings, without the county in which said city is located, shall expire onDecember 31, 1942, but that tracts of land acquired prior to that date, andunder the authority of this Act, maycontinue to be operated, leased, or sold, as provided in this Act.

“D--In addition to the power herein granted, the Commissioners’ Courts of the several counties of this State are hereby authorized to lease any.

Honorable DormanNickels, page 

### 3 O-4972

airport that maybe acquired by the county, as herein provided, to any incorporated city or municipality within such county, or to the Federal Government, for the purpose of maintaining and operating an airport; and provided further that any incorporated city having acquired land for anairport, or an airport, under the authority of this Act, shall have the right to lease said land or said airport to the county in which said incorporated city is located. "E--In addition to the power which it maynow have, the governing body of an incorporated city shall have the power to sell, convey, or lease, all or any portions of any airports heretofore established or that maybe hereafter establlshed, or any land. acquired under the provisions of this Act, to the United States of America for any purpose deemedby the Government of the United States necessary for National Defense, or for air mail purposes, or any other public purpose, or to ‘the State of Texas, or anybranch of the State Government, or to any other person, firm,or corpqratlon, to carry out any purpose necessary or incidental to National Defense or training incidental thereto; and that such governing body shall provide rules andregulations for the proper use of any such airports in connection with the purposes stated herein. As amendedActs 1941, 47th Leg., p. 

### 65,ch. 

### 51, 8 1; Acts 1941, 47th Leg., p. 196, ch. 142,-g 1." It will be noted that Article 1269h, supra, expressly~provides or sets forth the mannerthat real estate maybe acquired by a city or county for the purpose of an airport, namely, through gift or dedication, or by purchase wlthout condemnation or by purchase through condemnation proceedings.

Neither this statute nor any other statute that we have been able to find authorizes the city or county to obtain or acquire land for the purpose of anairport by a lease except Article 12693, Vernon's Annotated Civil Statutes which will be later discussed.

Article 1269h, authorizes a city or a county to lease an airport after being acquired by a city or a county to the Federal Government for certain purposes andalso authorizes a county to lease an airport to the city and further authorizes a city to lease an airport to the county. However, as above stated, wefind no provisionexcept as above mentioned authorizing a city or county to acquire real estate.

Honorable DormanNickels, page 4 0-4972

by lease from individuals, instead of acquiring the sameas authorized by Article 1269h.

Article 126gj, supra, expressly authorizes any city having a population of more than 4O,OOO,inhabitants according to the last preceding Federal Census.

11

. . . to own, maintain and operate an airport, either within or without, or partially within and the corporate limits of such ZrtE~i"t~y E"~~~E~ruct acquire by gift, purchase, leas; or the exercise Afthe right of eminent domain; improve, enlarge, extend or repair any airport, and to acquire by gift, purchase, lease or the exercise of the right of eminent domain, lands or rights in lands in fee simple in connection therewith; (c) to borrow moneyand issue its bonds or warrants to finance in whole or in part the cost of the acquisition, construction, Improvement, enlargement, extension or repair of any airport;

....'

It will be noted that the above mentioned statute authorizes any city having a population of more than 40,000 inhabitants according to the last preceding Federal Census to acquire real estate by lease for the purpose therein mentioned. However, as Wharton County has no city having a population of 40,000 inhabitants or more according to the last preceding Federal Census, said statute is not applicable to said county therefore, for the purpose of this opinion wedo not deemit necessary to discuss this statute further.

It is well established in this State that a city or county has only that power or authority conferred by statute or the Constitution and such power and authority which may be necessarily implied to exercise the express power andauthority given by the statutes or Constitution of this State.

In view of the foregoing it is the opinion of this department that neither any city having a population of less than 40,000 inhabitants according to the last preceding Federal Census, nor any county, is authorized to acquire land for anairport by lease from an individual, but such land must be acquired as provided byArticle 1269h, supra.

Wedirect your attention to Article 5248e, Vernon's Annotated Civil Statutes, which authorizes any city or county in this State, separately or jointly to acquire lands for the use of the United States Government, either by a lease for a term of years or in fee simple title. Said statute further provides that the lands so acquired shall lie within the limits. . -

HonorableDormanNickels,page5 o-4972

of the countyacquiring same,or ifacquiredbya city,withinthe limitsof the county inwhich said city is located; however,we donot construeyourrequestas pertainingto the acquisitionof landsforuse of theUnitedStatesGovernment, therefbre,ifwe are correct inthe constructionofyourrequest,the foregoingstatuteisnotapplicableto thequestionunder consideration.

Aswe have ineffectansweredyour firstquestion inthenegative it isnotnecessaryto consideryourother questions.

Trustingthat the foregoingfullyanswersyour ln- .quiry,we are
Yoursvery truly
ATTORNEYGENERAL OFTEXAS

By s/ArdellWilli.3ms ArdellWilliams Assistant AW:mp:wc

APPROVEDNOV. 21, 1942 s/GeraldC.Mann ATTORNEYGENERALOFTEXAS ApprovedOpinionCommitteeBy s/BWBChairman