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 ask the following questions regarding the status ofthe Kerr County Airport Authority:

1) Whetherthe Kerr CountyAirportAuthority created under

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 airport governance created by [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 of the Texas Constitution provides for the

establishment of airport 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) for the Kerr County Airport Authority ("Authority"), subject to voter approval. See

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

[hereinafter Act of May 19, 1967].

ISee Letter from Honorable Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, 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 - Page 2 (GA-0621)

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 Airport Authority" and

called for an election. Request Letter, supra note 1, at 1; see Act of May 19,1967, § 3, at 896-97

(providing for the creation and organization ofthe Authority). Prior to the election, the enabling

legislation required that "[t]he governing body ofthe city ofKerrville ... determine by majority vote

whether the directors [were] to be appointed or elected." Act ofMay 19, 1967, § 5(b), at 897. You

tell us that "the City of Kerrville 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 that the "Commissioners Court canvassed the votes and declared [that] the Kerr County Airport

Authority was created." Id.

The Authority's enabling legislation provides the following regarding the appointment of

board members:

(a) Ifthe governing body of Kerrville determines that the directors

are to be appointed, the Commissioners Court of Kerr County shall

appoint them within 10 days after declaring the authority creat~d.

(b) To be effective, an appointment to 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

been managed by ajoint board pursuant to state law, currently codified at chapter 22, Transportation

Code, and that this method ofmanaging the airport was initiated just prior to the May 1970 election.'

Request Letter, supra note 1 (Appendices C, D, & K indicating that the City and County took action

to establish ajoint board pursuant tothe Texas Municipal Airports Act on February 24, and February

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 Act just prior to the Airport

Authority election); see also TEX. TRANSP. CODE ANN. §§ 22.003 revisor's note (Vernon 1999)

(explaining that this law was formerly cited as the "Municipal Airports Act"); 22.074 (Vernon Supp.

2007) (providing for creation of a joint 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 - Page 3

II. Analysis

A. Legal status of the 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 only by their creator." Watts v. Double Oaklndep. Sch. Dist., 377 S.W.2d 779, 780 (Tex.

Civ. App.-Fort Worth 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

(providing for the dissolution ofhospital districts); TEX. WATERCODEANN. § 49.321 (Vernon 2000)

(providing that certain water districts may be dissolved when they are inactive for a period offive

consecutive years). Without authorization, the Authority may not be 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. Cf Baber v. City ofRosser, 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 of the Authority

With the understanding that the Authority is still in existence, we tum to the question of

whether the Authority may "be utilized and the Board populated 37 years after [the] county election

and vote canvassing declaring [the] authority created." Request Letter, supra note 1, at 1. In a letter

received by our office from the City ofKerrville ("City"), the city attorney argues that because Kerr

County ("County") did not appoint the board of directors 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.

4Letterfrom Michael C. Hayes, City Attorney, to Honorable Greg Abbott, Attorney General ofTexas, at 1(Nov.

29,2007) (on file with the Opinion Committee).
The Honorable Rex Emerson - Page 4 (GA-0621)

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 not believe this serves as a barrier. We believe that it was

the intent ofthe Legislature to vest the power of appointment in the commissionerpositions, rather

than the specific persons who held those positions in 1970. See Tarrant County v. Ashmore, 635

S.W.2d 417,420-21 (Tex. 1982) (explaining that public 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 of a drainage

district even though the enabling legislation spoke in terms ofthe governing board on the effective

date ofthe Act).

To the extent the city attorney's argument is premised on the notion that 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 whether the failure to timely

appoint temporary directors to a hospital district invalidated those appointments. 531 S.W.2d at

198-99. In that case, the hospital district's enabling legislation provided that "[o]n the effective date

ofthis Act, the Commissioners Court of Comanche County shall appoint five persons to serve as

temporary directors." Id. at 198. The court held that the timing requirement in the enabling

legislation was directory in nature and that the appointments did not have to be made on the effective

date ofthe legislation to be valid. Id. at 199. The court relied, 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 act within

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. ofPub. 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) (explaining that

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

appoint the board members within ten days ofdeclaring the Authority created. Act ofMay 19, 1967,

§ 6, at 897. And the Legislature did not provide any consequence for noncompliance with the tenday requirement. Id. We look then to the statute's purpose in determining the proper consequence

of noncompliance. Helena Chern. Co. v. Wilkins, 47 S.W.3d at 494; Tex. Dep't ofPub. Safety v.

Dear, 999 S.W.2d 148,152 (Tex. App.-Austin 1999, no pet.). The stated purpose ofthe enabling
The Honorable Rex Emerson - Page 5 (GA-0621)

legislation is "to implement the provisions of Section 12, Article IX, Constitution ofthe State of

Texas, by providing a method for the creation, administration, and operation of an airport authority

in Kerr County." Act ofMay 19, 1967, § 1, at 896. Utilizing the rules ofconstruction set out herein

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 ofjunior college districts).

c. Governance of the airport

We now turn to your question of"[w]hetherthe alternate airport governance created by [the]

City and County after5 the 1970 election establishing the Kerr [C]ounty Airport Authority can legally

govern the airport." Request Letter, supra note 1, at 1 (footnote added). You assert that once

"the voters approved the Airport Authority and the Commissioners declared the Authority 'created'

... any other form of governance flies in the face ofthe voters' intent." Id. at 2.

To answer your question, we focus on provisions of the 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, and without an election on the part ofthe city,

county, or authority.

Act ofMay 19,1967, § 18, at 900; see also TEX. TRANSP. CODE ANN. § 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 legislation provides: "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 of May 19, 1967,

§ 14(a), at 899.

5Based on the background information you provided and information from the County, we note that the joint

board was, in fact, created just prior to the May 1970 election. See supra p. 2.
The Honorable Rex Emerson - Page 6 (GA-0621)

Thus, the Authority did not upon its creation automatically take over any existing airport

facility. Rather, the enabling legislation contemplatesthat the 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 or that the 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 expressly prohibits the operation ofa joint board in the same geographical

territory where an airport authority is established.6 Unless and until the City and County take 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 a joint board.

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 of this 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 - Page 7 (GA-0621)

SUMMARY

The KerrCountyAirport Authority ("Authority"), established

in 1970, is still in legal existence, and the board of directors may be

appointed. Because the City ofKerrville and County ofKerr have 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