HonorableWilliam J. Lowe Opinion No. WW-1114

County Attorney Donley County Re: Whether a county may Clarendon,Texas legallypurchase and own a house to be used for residentialpurposes by county employees on a rent free basis by furnishing the house for employees as part of their compensationand related Dear Mr. Lowe: question.

Your request for an opinion from this office presents the following questions:

“1. Can the County legallypurchase and own a house to be used for residential purposes by County employees on a rent free basis by furnishing the house for employees as a part of their compensation. "2. Can the County legallypurchase and own a house to be used for residential purposes by County employees on a basis that the employeeswill pay the County reasonable rent therefor."
Your letter also informsus that the Commissioners'Court desires to purchase the house and move it on property already owned by the County in a remote precinct in order to encourage employees of the County to work in that precinct.

The Commissioners'Court does serve as the governingbody of the County and although its control extendstonearly every phase of the County'sbusiness, its jurisdiction is not plenary. Its power must be specificallyauthorized by the Constitution or the statutes. Canales v. Laug$&& 147 Tex. 169, 214 S.W. 2d 451 (1948).Honorable William J. Lowe, page 2 (WW-1114)

Article 2351 of Vernon's Civil Statutes enumerates the variouspowers and duties of the Commissioners'Courts. Subdivision 7 of that statuteprovides that the Court shall:

"Provideand keep in repair courthouses, jails an9 all necessary public buildings. The power to "provide"necessarypublic buildings has been interpreted to include the purchase of said buildings. Dancy v. Davidson, 183 S.W.2d 195 (Civ.App.1944, error ref.)

Since the provision quoted above is the statutoryauthority for the Commissioners'Court to purchaseproperty, the question at hand must be whether the purchase of the house and subsequentremoxal to the lot is "providinga necessarypublic building. The case of Dancs v. Davidson, supra, concerned, the construction of the same subdivisionof Article 2351 and defined the term in question at page 198 as follows:

"By the term 'publicbuilding' as used in the statute is meant a buildingused primarily for public or governmentalpurposes, that is, to house public or governmental agencies. The power to provide includes the power to purchase. The Commissioners'Court is the legal body authorizedunder the statute to determine whether or not a 'publicbuilding' is 'necessary' and its decision relating thereto can not be disturbedby this Court, except upon a showing of an abuse of discretion.

. . .' (per Norvell, J.)
It can be seen from the wording of the Dancy case, sunra, that the Commissioners'Courthas no power to exercise their discretionunless the building is a "publicbuilding." This office has writtennumerous opinions concerningpublic buildings and the uses consistentwith such buildings. Enclosed is AttorneyGeneral's Opinion No. O-1952 (1940)writtenprior to the Dancy case, supra,holding that the Commissioners'Court could not construct a building to house agencies not strictly connectedwith county business as the same did. .

Honorable William J. Lowe, page 3 (WW-1114)

not come within the purview of Section 7 of Article 2351. This opinion and authorities cited therein define "publicbuildings" as those essential for the conduct of "strictlycounty business" and those to house "offices" of various officials of the county.

According to the definitions set out above we must hold that the building in question County would not be a "publicbuilding. in Donley Your request states that it Is to be used for residentialpurposes only, whichprohibits it from being a "publicbuilding" even if such a private use did serve to facilitate the County's business.

It follows that since the building in question is not a "publicbuilding" that the Commissioners' Court has no power to decide whether or not it is necessary. Therefore,we need not reachyour second question.

SUMMARY
A house to be used for residential purposes by County employees on a rent free basis as part of their compensation is not a "publicbuilding,"hence the Commissioners'Court has no power to purchase a house to be used by County employees as a residence.
Yours very truly

WILL WILSON AttorneyGeneral of Texas

FDW:lgh

. ” 

# By&q

Assist&t- .

Honorable William J. Lowe, page 4 (WW-1114)

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John LawrenceHargrove Bob Eric Shannon Marietta Payne John Reeves
REVIEWED FOR THE ATTORNEYGENERAL BY: Houghton Brownlee, Jr.