HE L'% ORNEY GENERAL 

OP%?EXAW 

Honorable Dorman Nickels 

County Attorney 

Wharton County 

Wharton, Texas 

Attention: Mr. M. S. Munson, Jr. 

Dear Sir: Opinion No. O-4972 

Re: Would a county or city of the State 

of Texas be authorized to acquire 

the site for an airport by lease from 

an lndivldual; instead of purchasing 

same as provided in Articles 1269h, 

Vernon's Annotated Civil Statutes, 

and related 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 me whether 

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 same as 

provided in saia Art. 1269h. 

"(2) Appropriate money of such County or City 

to pay the rental therefor without a bona issue. 

"(3) Erect with County or City money a hanger 

upon such premises, and pay necessary maintenance 

charges including salaries of guards. 

"(4) Acquire and maintain such an airport in 

the manner above stated, to be operated,,and managed 

by the members of the Civil Air Patrol. 

Article 1269h, Vernon's Annotated Civil Statutes 

provides in part: 
Honorable Dorman Nickels, page 2 o-4972 

“Section 1. A--That the governing body of 

any Incorporated city in this State may receive 

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 and withln the county in which 

such city is situated, and the Commissioners’ Court 

of any county may likewise 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 may receive through gift or 

dedication, and is hereby empowered to acquire by 

purchase without condemnation, ana thereafter maintain and operate as an airport, 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 may thereafter 

maintain and operate as an airport, or lease, or 

sell, sala tracts to the Federal Government; provided, however, that the grant herein made to acquire land through condemnation prooeedings, without 

the county in which said city is located, shall 

expire on December 31, 1942, but that tracts of 

land acquired prior to that date, and under the 

authority of this Act, may continue 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 Dorman Nickels, page 3 O-4972 

airport that may be 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 

an airport, 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 may now 

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 may be hereafter establlshed, 

or any land. acquired under the provisions of this 

Act, to the United States of America for any purpose deemed by 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 any branch 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 

and regulations for the proper use of any such airports in connection with the purposes stated herein. 

As amended Acts 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 manner that real estate may be 

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 an airport 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 and also 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, we find no provisionexcept as above 

mentioned authorizing a city or county to acquire real estate 
. 

Honorable Dorman Nickels, page 4 0 -4972 

by lease from individuals, instead of acquiring the same as 

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 Af the 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 money and 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 we do not deem it 

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 and authority 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 an airport by lease from an individual, but such land must 

be acquired as provided by Article 1269h, supra. 

We direct 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 
. . - 

Honorable Dorman Nickels, page 5 o-4972 

of the county acquiring same, or if acquired by a city, within the limits of the county in which said city is located; 

however, we do not construe your request as pertaining to the 

acquisition of lands for use of the United States Government, 

therefbre, if we are correct in the construction of your request, the foregoing statute is not applicable to the question under consideration. 

As we have in effect answered your first question 

in the negative it is not necessary to consider your other 

questions. 

Trusting that the foregoing fully answers your ln- 

.quiry, we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Ardell Willi.3ms 

Ardell Williams 

Assistant 

AW:mp:wc 

APPROVED NOV. 21, 1942 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman