Honorable J. C. Zbranek

Chairman,Committee on Counties House of Representatives. Austin, Texas OpinionNO. WW-

### 665 Re: Constitutionalityof certainprovisions of Dear Mr. Zbranek: House Bill 

### 31.

You have requested our opinionwith regard to the constitutionalityof House Bill 

### 31. This Bill provides for the creation of a CountyBuilding Authority, in counties where applicable,primarily for the purpose of constructing,acquiring, improving, equipping, furnishing, maintaining and operating a county building to be used principally as a County Courthouse. The Bill is made applicable to: If countieshaving a population

in exceis'oi 600,000 according to the last preceding Federal Census and which have not constructeda county courthousewithin the last ten (10)years." You have expressedparticular concern as to the constitutionalityof those portions of the Bill which delegate powers with regard to countybusiness now exercised by the County CommissionersCourt to the CountyBuilding Authority in countieswhere this Bill would be applicable.

Before considering the constitutionalityof granting the powers with regard to certain county business to the CountyBuilding Authority,we feel constrained to point out the following objections to tne Caption and Section 1 of the Bill as now written:Honorable J. C. Zbranek,page 2 (WW- 665)

CAPTION Section 8 of the Bill provides in part as follows: "The authority is createdprimarily for the purpose of constructing,acquiring, improving, equipping,furnishing,maintaining and operatinga County Building.

. . ." That portion of the Caption of the Bill which refers to the gowers of the County Building Authority reads as follows: authorizing the creation of CountyBuilding Authorities'& acquire, own and operate a public building to be used principally as a County Courthouse;

. . .'

We would here point out that there is a variance between the powers given the authority in Section 8 of the Bill and those enumerated In the Caption of the Bill. Therefore, in our opinion, the powers contained in Section 8, particularly the power to construct,which are not also contained in the Caption are subject to being held Inoperative. We, therefore, suggest that the Captionbe changed to include all those powers set forth in Section 8 of the Bill. SECTION 1 The first sentence of this Section is subject to a constructionwhich would make this Bill a local or special law prohibitedby Section 56 of Article III of the Texas Constitution.

We say this due to the fact that t$e portion of the first sentence of Section 1 which reads: and which have not constructeda County Courthousewithin the last ten (10)years," can be construed as fixing a period of ten yearswhich dates back from the effectivedate of the Bill.

So construed, this Bill would be invalidunder the holding in City of Ft. Worth v. Bobbitt, 121 Tex. 14, 36 S.W.2d 470 71931) because itwould appfy only to those countieswherein a County Courthousehad not been constructedwithin the ten years immediatelypreceding the effective date of the Bill and would, therefore,be a local or special law.Honorable J. C. Zbranek,page 3 (~~-665

In order to remove the posslbility of such a construction it is suggested that the first sentence in Section 1 be changed to read as follows:

This Act shall be applicable only to countieshaving a population In excess of ~OO,~OO according to the last precedlng,FederalCensus and which own and use, in conjunction with other structures,a courthouse which ismore than ten (10)years old. The Caption of the Bill should be reworded to confrom to this change.

We pass now to the considerationof the portions of the Bill which delegatepowers relating to countybusiness which have heretofore been reposed in the Commissioners court. Article 2351, Vernon's Annotated Texas Civil Statutes, provides in part as follows:

"Each CommissionersCourt shall: I,

. . .

“7

. Provideand keep in repair court houses, jails and all necessarypublic bulldings." (emphasisours.) Under the decisions of the Texas courts, it iswell settled that the Countv CommissionersCourthas no Dower except that specially conferred by the Constitution*or

1936,writ refused).Honorable J. C. Zbranek,page 4 (WW-665)

However, Section 18 of ArticleV of the Constitution of Texas,which provides that CommissionersCourts shall exercise suchpower and jurisdictionover county business as is conferredby the Constitutionand laws of the State does not prevent the Legislature from committing any county business to some other authority,nor does any other provision of the Constlt ti hiblt the exercise of such legislativepower. C~ar?v?inley 93 Tex. 181, 54 S.W. 343 (1899); Garrett v. Commissioner;Court of Limestone ~~~i;~~~~~~~~~~~~~~'~~~~t:'~~~~:';.~~~;~~:' %8

Sections 6, 7, 8 and 9 of the Bill set forth the powers and purposes of the County Building Authority. We find nothing in these Sectionswhich is inconsistentwith the efficient and effective conduct of county business in relation to county courthouses.

In view of the last cited authorities, it is our opinion that the Legislaturemay properly delegate to the CountyBuilding Authority the powers conferredb,ySections 6, 7, 8 and 9 of this Bill in countieswhere this Bill shallbecome effectiveand where such authority shallhave come into being in conformitywith the provisions of this Bill,without violating any provision of the Constitution.

Section 4 of House Bill 31 requires the "qualified voters of the county" to vote on the questions of the creation of the County Building Authorityand the issuance of bonds by the Authority in the same election.

It is our opinion that Section 4 of this Bill is unconstitutional in that it allows voters other than those who own taxableproperty and who have duly rendered the same for taxation to vote on the issuance of bonds ana tnus violates Section 3a of ArticleVI of the Texas Constitution. Y?FF Carlton IndependentSchool Dist., 156 Tex. 365, 295 S.
. d 408 (1956).

We find no otherprovisions of this Bill which are unconstitutional.Honorable J. C. Zbranek,Page 

### 5 (w-665)

SUMMARY The Caption of House Bill 

### 31 does not conformwith the powers delegated to the County Building Authority in Section 

### 8 of said Bill; Section 1 of said Bill is capable of being construed in a manner which would make It invalid as a local or special law under Section 

### 56 of Article III of the Texas Constitution;Sections 

### 6, 7, 8 and 9 of the Bill, in which powers relating to countybusiness are delegated to the Authority, are constitutional;Section 4 of the Bill violates Section 3a of ArticleVI of the Texas Constitution;all other portions of the Bill are constitutional. Yours very truly, WILL WILSON Attorney General of Texas 

# Lo, BY W. 0. Shultz Assistant

WOS:mfh APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman H. Grady Chandler J. Milton Richardson Leonard Passmore BY Howard Mays Assistant

REVIEWED FOR THE ATTORNEY GENERAL BY: W. V.'Geppert