ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### May 1,2008

The Honorable Rex Emerson Kerr County Attorney County Courthouse, Suite BA-103 700 Main Street Kerrville, Texas 78028
Dear Mr. Emerson: Opinion No. GA-0621 Re: Status ofthe Kerr County Airport Authority (RQ-0643-GA)

You askthe following questions regarding the status ofthe Kerr County Airport Authority: 1) Whetherthe KerrCountyAirportAuthoritycreatedunder H.B. No. 956 can be utilized and the Board populated 37 years after [the] county election and vote canvassing declaring [the] authority created.2) Whetherthe alternate airportgovernance createdby [the] City [of Kerrville] and County [of Kerr] after the 1970 election establishing the Kerr [C]ounty Airport Authority can legally govern the airport. 1 

### I. Background Consideration of your questions necessitates a review of the relevant legal and factual background. Adopted in 1966, article IX, 

### section 12 ofthe Texas Constitution provides for the establishment ofairport authorities. See 

### TEX. CONST. art. IX, 

### § 12. This section ofthe constitution requires legislative action in order to execute its provisions. See id. 

### The legislative session immediately following the adoption ofthe constitutional amendment enacted enabling legislation (House Bill 956) forthe KerrCountyAirportAuthority ("Authority"), subjectto voterapproval. See 

### Act of May 19, 1967, 60th Leg., R.S., ch. 393, §§ 1-29, 1967 Tex. Gen. Laws 896, 896-903 [hereinafter Act ofMay 19, 1967].

ISeeLetterfrom Honorable Rex Emerson, KerrCountyAttorney, to Honorable GregAbbott, Attorney General of Texas, at 1 (Oct. 23, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].The Honorable Rex Emerson

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As contemplated in the Authority's enabling legislation, you explain that "Kerr County accepted and certified [a] citizen's petition for the creation ofa Kerr County AirportAuthority" and called for an election. Request Letter, 

### supra note 1, at 1; 

### see Act ofMay 19,1967, § 3, at 896-97 (providing for the creation and organization ofthe Authority). Prior to the election, the enabling legislationrequiredthat "[t]he governing body ofthe city ofKerrville

... determine bymajorityvote whetherthe directors [were] to be appointed or elected." Act ofMay 19, 1967, § 5(b), at 897

. You tell us that "the City ofKerrville chose to have the Board members appointed." Request Letter, 

### supra note 1, at 1. You indicate that in May of 1970 the election to create the Authority was held and thatthe "Commissioners Court canvassedthe votes and declared [that] the Kerr CountyAirport Authority was created." 

### Id. The Authority's enabling legislation provides the following regarding the appointment of board members: (a) Ifthe governing body ofKerrville determines that the directors are to be appointed, the Commissioners Court ofKerr County shall appoint them within 10 days after declaring the authority**creat~d.** (b) To be effective, an appointmentto the board must be made after consultation with, and with the consent of, the governing body of Kerrville. The governing body shall express its consent by appropriate resolution. i\ct of May 19, 1967, 

### § 6(a)-(b), at 897. For reasons that are apparently no longer clear, the Kerrville City Council and Kerr County Commissioners Court failed to agree upon and appoint the board as contemplated in the enabling legislation. Request Letter, 

### supra note 1, at 1.2
In the years since the election, you indicate that "the airport has been managed under either the Texas Municipal Airport Authority or the Transportation Code." Request Letter, 

### supra note 1, at 1; 

### see also Comm'rs Letter, 

### supra note 2, at 2-3 (describing various actions taken by the City and County as to the management ofthe airport). We understand, more specifically, that the airport has beenmanaged by ajointboardpursuantto state law, currently codified atchapter22, Transportation Code, andthatthis method ofmanaging the airport was initiatedjustpriorto the May 1970 election.' RequestLetter, 

### supra note 1 (Appendices C, D, & K indicating thatthe City and Countytook action to establishajointboardpursuanttothe Texas Municipal Airports ActonFebruary24, andFebruary 25, 1970, respectively); Comm'rs Letter, 

### supra note 2, at 2 (explaining that individuals were appointed to an airport commission pursuant to the Municipal Airports Actjustprior to the Airport Authority election); 

### see also TEX. TRANSP. CODE ANN. §§ 22.003 revisor's note (Vernon 1999) (explaining thatthis law was formerly cited as the "MunicipalAirports Act"); 22.074 (Vernon Supp. 2007) (providing for creation ofajoint board).

2See also Letter from Kerr County Commissioners Court, to Honorable Greg Abbott, Attorney General of Texas, at 2 (Jan. 14,2008) (on file with the Opinion Committee) [hereinafter Comm'rs Letter].The Honorable Rex Emerson

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### II. Analysis A. Legal status ofthe Authority (GA-0621)

We begin our analysis by examining the legal status ofthe Authority. Political subdivisions such as the Authority are authorized by the State, and "[b]eing creatures ofthe State they can be destroyed onlyby their creator." 

### Watts 

### v. Double Oaklndep. Sch. Dist., 377 S.W.2d 779, 780 (Tex. Civ. App.-FortWorth 1964, no writ); 

### see also Act ofMay 19,1967, § 19, at 900 ("The [A]uthority is a body politic and political subdivision ofthe state
.... "). We do not find that the Authority's enabling legislation has ever been repealed. 

### Accord Request Letter, 

### supra note 1, at 1-2. And no provision for dissolution ofthe Authority is found in the authorizing constitutional provision, the enabling legislation, or other state law. TEX. CONST. art. IX, § 12; Act of May 19, 1967, §§ 1-29, at 896-903; 

### cf, e.g., TEX. CONST. Art. IX, § 9 (providingforthe dissolutionofhospital districts); TEX. WATERCODEANN. §49.321 (Vernon2000) (providing that certain water districts may be dissolved when they are inactive for a period offive consecutiveyears). Withoutauthorization, the Authoritymaynotbe dissolved. Tex. Att'y Gen. Op. Nos. JC-02203 (2000) at 2 (concluding that a hospital district could not dissolve pursuant to an election because there was no statutory authority to call and hold a dissolution election); WW-395 (1958) at 3 (explaining that absent specific authority and statutory procedure an inactive junior college district could not be dissolved). Moreover, neither the failure to appoint the board of directors nor the nonuse of its powers works to dissolve the Authority. 

### CfBaber v. 

### City of Rosser, 770 S.W.2d 629, 631 (Tex. App.-Dallas 1989, writ dism'd w.o.j.) (holding that a municipal corporation was not dissolved by nonuse or failure to elect officers but rather would continue to exist until legally abolished); 'Tex. Att'y Gen. Op. No. C-721 (1966) at 2 (explaining that inactivity or nonuse in itselfwill not abolish a legally created entity). In sum, we conclude that the Authority is still in legal existence. 

### B. Activation ofthe Authority With the understanding that the Authority is still in existence, we tum to the question of whetherthe Authority may "be utilized and the Boardpopulated 37 years after [the] county election and vote canvassing declaring [the] authority created." RequestLetter, 

### supra note 1, at 1. In a letter received by our office from the City ofKerrville ("City"), the city attorney argues thatbecause Kerr County ("County") did not appoint the board ofdirectors within the ten-day deadline set out in the enabling legislation ofthe Authority, it may not now be established.4

3This opinion has been modified on other grounds by statute. 4LetterfromMichael C. Hayes, CityAttorney, to Honorable GregAbbott, Attorney General ofTexas, at 1 (Nov. 29,2007) (on file with the Opinion Committee).The Honorable Rex Emerson

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The Authority's enabling legislation, as previously recited, does provide that "the Commissioners Court of Kerr County shall appoint [the board members] within 10 days after declaring the authority created." Act of May 19, 1967, § 6(a), at 897. To the extent the city attorney's argument is premised on the fact that the 1970 commissioners court no longer exists to exercise the power ofappointment, we do notbelieve this serves as abarrier. We believe thatitwas the intent ofthe Legislature to vest the power ofappointment in the commissionerpositions, rather than the specificpersons who held those positions in 1970. See Tarrant County 

### v. Ashmore, 635 S.W.2d 417,420-21 (Tex. 1982) (explaining thatpublic offices belong to the people and are given to particular officeholders temporarily in trust); Tex. Att'y Gen. Ope No. DM-140 (1992) at 2 (concluding that the current commissioners court could serve as the governing body ofa drainage district even though the enabling legislation spoke in terms ofthe governing board on the effective date ofthe Act). To the extentthe city attorney's argument is premised onthe notionthat appointments made outside the ten-day window would be invalid, we also disagree. The court in Burton v. Ferrill, 531 S.W.2d 197 (Tex. Civ. App.-Eastland 1975, writ dism'd) considered whetherthe failure to timely appoint temporary directors to a hospital district invalidated those appointments. 531 S.W.2d at 198-99. Inthatcase, the hospital district's enablinglegislationprovidedthat "[o]nthe effective date ofthis Act, the Commissioners Court ofComanche County shall appoint five persons to serve as temporary directors." Id. at 198. The court held that the timing requirement in the enabling legislationwas directory innature andthatthe appointments didnothaveto be made onthe effective date ofthe legislation to be valid. Id. at 199. The courtrelied, in part, on the principle ofstatutory construction that [i]f the statute directs, authorizes or commands an act to be done within a certain time, the absence of words restraining the doing thereofafterwards or stating the consequences offailure to actwithin the time specified, may be considered as a circumstance tending to support a directory construction. Id. (quoting Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956)); see Helena Chern. Co. 

### v. Wilkins, 47 S.W.3d 486,495 (Tex. 2001); compare Sullivan 

### v. Tex. Dept. of Pub. Safety, 

### 93 S.W.3d 149,153-54 (Tex. App.-Beaumont2002, no pet.) (Burgess, J., dissenting) (discussing the fact that when the statutory phraseology denies the exercise of a power after a certain time or restrains performance after a certain time the statute is generally mandatory in nature); City of Uvalde 

### v. Burney, 145 S.W. 311,312 (Tex. Civ. App.-SanAntonio 1912, no writ) (explainingthat timing requirements expressed in the negative are necessarily mandatory). In the case before us no restraining words are attached to the requirement that the County appointthe boardmembers withinten days ofdeclaring the Authority created. ActofMay 19, 1967, § 6, at 897. And the Legislature did not provide any consequence for noncompliance with the tenday requirement. Id. We lookthen to the statute's purpose in determining the proper consequence ofnoncompliance. Helena Chern. Co. 

### v. Wilkins, 47 S.W.3d at 494; Tex. Dep't of Pub. Safety 

### v. Dear, 999 S.W.2d 148,152 (Tex. App.-Austin 1999, no pet.). The stated purpose ofthe enablingThe Honorable Rex Emerson

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legislation is "to implement the provisions ofSection 12, Article IX, Constitution ofthe State of Texas, by providing a method for the creation, administration, and operation ofan airport authority in Kerr County." Act ofMay 19, 1967, § 1, at 896. Utilizing the rules ofconstruction set outherein and giving reasonable effect to the legislative purpose ofproviding a method to create, administer, and operate the Authority, we conclude that the ten-day appointment requirement is directory in nature. To conclude otherwise would require the Authority to lie dormant. "A directory provision is, by definition, one 'the observance ofwhich is not necessary to the validity ofthe proceeding. ,,, Dear, 999 S.W.2d at 151 (citation omitted). Thus, we conclude that appointments to the board of the Authority may still be made as directed by the enabling legislation and.will not be invalid for failure to comply with the ten-day deadline. Our conclusion here that the Authority may be activated thirty-seven years after its creation by appointing a board of directors is consistent with a previous attorney general opinion that considered similar issues. See Tex. Att'y Gen. Ope No. C-721 (1966) at 1-2 (concluding that a junior college district could be reactivated some thirty years after its establishment by complying with state law requirements as to the operation and governance of junior college districts). 

### c. Governance ofthe airport We nowturnto yourquestion of"[w]hetherthe alternate airport governance createdby [the] CityandCountyafter5the 1970electionestablishingthe Kerr [C]ountyAirportAuthoritycanlegally govern the airport." Request Letter, supra note 1, at 1 (footnote added). You assert that once "the voters approved the AirportAuthority andthe Commissioners declared the Authority 'created'

... any other form ofgovernance flies in the face ofthe voters' intent." Id. at 2. To answer your question, we focus on provisions ofthe Authority's enabling legislation. Section 18 ofthe enabling legislation provides that the City and County
may sell, give, or lease their interest in any airport facility to the authority. The transfer may be consummated without the city or county giving notice ofits intention to sell, give, or lease the airport facility to the authority, andwithout an election onthepartofthe city, county, or authority. Act ofMay 19,1967, 

### § 18, at 900; 

### see also TEX. TRANSP. CODEANN. 

### § 22.080(a)(2) (Vernon 1999) (providing a joint board may not dispose of an airport without the consent of each governing authority ofthe board's constituent agencies). Conversely, the enabling legislationprovides: "The [A]uthority may acquire by purchase, gift, or eminent domain any interest in any existing airport facility publicly owned and financed and served by a certificated airline." Act ofMay 19, 1967, 

### § 14(a), at 899.

5Based on the background information you provided and information from the County, we note that thejoint board was, in fact, createdjust prior to the May 1970 election. See supra p. 2.The Honorable Rex Emerson

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Thus, the Authority did not upon its creation automatically take over any existing airport facility. Rather, the enabling legislation contemplates thatthe Authority may acquire such facilities and the City and County may sell, give, or lease such facilities. We have no information indicating that the City and County have taken action to sell, give, or lease their interests in the 'airport to the Authority orthatthe Authority has taken action to acquire the same. And we find nothing in article IX, section 12 ofthe Texas Constitution, the Authority's enabling legislation, or chapter 22 ofthe Transportation Code that expresslyprohibits the operation ofajointboard inthe same geographical territory where an airport authority is established. 6 Unless and until the City and Countytake action to sell, give, or lease their interests in the airport to the Authority, we conclude that the City and County may manage the airport in any manner authorized by state law, including via ajointboard. See TEX. TRANSP. CODE ANN. 

### § 22.074 (Vernon Supp. 2007) (providing for creation of a joint board).

6We note that cities and counties are prohibited from acquiring or taking over an airport owned or controlled by another city, county, or public agency ofthis state without consent. See TEX. TRANSP. CODE ANN. § 22.011(d) (Vernon 1999); id. 22.001(6) (defining local government). To the extent one might argue the Authority is a "public agency ofthis state," this provision would not serve as a barrier here because the City and County have not transferred any interest to the Authority. That is, the Authority does not own or control the airport.The Honorable Rex Emerson

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SUMMARY The KerrCountyAirportAuthority ("Authority"), established in 1970, is still in legal existence, and the board ofdirectors may be appointed. Becausethe CityofKerrville and County ofKerrhave not sold, given, or leased their interests in the airport to the Authority, they may govern the airport via a joint board under chapter 22, Transportation Code.

KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Christy Drake-Adams Assistant Attorney General, Opinion Committee