The Attorney General of Texas 

March 13. 1986 

JIM MAlTOX 

Attorney General 

s~premo Court Building 

P. 0. BOX t2yB 

Aus,,“. TX. 78711. 2548 

51214752501 

Telex 910187+1367 

Tslecoqisr 5W475-0266 

714 Jackson. Suila 7w 

Dallas. TX. 752024506 

214l742-8W 

4824 Alberta Ave.. Suite 160 

El Paso. TX. 799052793 

91Y5353464 

1001 Texas. Suite 700 

Houston, TX. 77002~3111 

71322M886 

806 Broadway. Suite 312 

Lubbock. TX. 79401-3479 

80617476230 

43X N. Tenth, Suite S 

McAllen. TX. 78501.1685 

512682-4547 

MO Main Plaza. Suite 4M) 

San Antonio, TX 782052797 

51212254191 

An Equal OPPo~u~itY~ 

Aftirmative Action Employer 

Eouorablc Henry Wade 

District Attorney 

Services Building 

Dallas, Texas 75202 

Opinion PO. JH-489 

Re: Wbcther a cmty my, by auction, 

lease courthouse space to be used by 

a private cafeter(Z 

Dear Mr. Wade: 

You have InEozmed us that the Dallas County Comissioners Court 

wishes to lease e,pace ovned by Dallas County lccated in the Cccnty 

Government Center. The court proposes to lease tte space to a private 

business to opemte a cafeteria. Pou have also lxfomed us that the 

area was originally designed and built for use as a cafeteria. and 

contains county wned cafeteria equipment which till be leased with 

tha space. The commissioners court also proposes that all utilities 

will be provided and maintained by the county at no cost to the 

lessee. Finally, you have informed us that it is the intent of the 

county to obtain for the county treasury the greatest amount of rent 

that may be obtaijmed through the competitive prccess. In that regard 

you have requested our opinion on the authority of the commissicters 

court to lease the space and vhat procedures should be utllizet. 

The Dallas Colmty Coasaissioners Court has only the powers conferred 

either expressly or by necessary implication by ebe constltutior. st.d 

statutes of this state. See Tex. Coast. art. 7’. 518; Canales v. 

Laughlin, 214 S.W.2d 451. 453 (Tex. 1948). The SFxty-third Legislature amanded art,Lclc 1577. V.T.C.S., to read as fcllous: 

The Commissioners Court may. by an crder to ba 

enteres on its minutes, appoint a Condssloncr to 

sell or lease any real estata of the county at 

public au=. and notice of said public auction 

shall be advertised at least tventy (20) days 

before the day of sale. by the officer, by having 

the notice thereof published in tF.a English 

language once a vcek for three (3) consecutive 

veeks preceding such sale or lease in a nevspaper 

in the county in which the real estate is located 

and in the county which owns the real estate, if 

they arc not the same. (Emphasis added). 

See Acts 1973, 63rd Leg., ch. 449. 51, at 1329. Bus, we believe chat 

the cafeteria r.pace vithin the County Gove-t Ceptcr is ccunty 

owned “real estzts” within the meaning of article 1577. 

p. 2038 
Honoreble Renry Wade - Page 2 (a-449) 

The authority of a county commissioners court to lease space 

within a courthouse to a private business mey be exercised under 

limited circumstances. The commissioners court must determine whether 

the use of the rental spsce will not interfere with the proper use of 

the courthouse. and whether it is nacessary to the convenience of 

those transacting businew in the courthouse. See Dodson v. Marshall. 

118 S.W.2d 621 (Tex. Civ. App. - Waco 1938. xc dism'd); see also 

Attorney General Opinion PSI-200 (1980); but see Tarrant County v. 

Rattikin Title Co., 199 S.H.2d 269 (Tex. Civ. App. - Fort Worth 1947, 

no writ) (commissioners court is not authorized to lease office space 

to private enterprise whd.ch was originally erected for use of public 

office). 

Article 1577 requiras the commissioners court to follow a 

specified procedure befl)re leasing county-owned real estate. We 

believe that this statutory procedure is -mandatory and the commissioners court is not allou'ed to deviate from Its standards. See State 

v. Pox, 133 S.W.2d 987 ~:Tex. Civ. App. - Austin 1939, writrem 

Thus, article 2368a.5, V.T.C.S.. the County Purchasing Act. which 

provides a procedure to assure competitive bidding in regard to county 

purchases does not apply to leases. See V.T.C.S. art. 2368a.5. 13(a); 

see also Attorney General Opinion %z385 (1985). Pou provide no 

information indicating that a contract for services is also involved 

with this lease. If so, a contract for services must be separated and 

dealt with under the competitive bidding statutes. 

Rowever, as quotet, above. article 1577 only specifies the 

procedure the commissionor: court is to follow before a public auction 

is held to lease county-owed real estate. The provision does not 

specify the mode by which a bid is to be made and other procedures for 

conducting the public auction. Under such circumstances. the Texas 

Supreme Court has stated: 

Where a ri:ght Is conferred or obligation 

imposed on sa.id ~commissioners] court, it has 

implied authority to exercise a broad discretion 

to accomplish .:IIc purpose intended. 

Anderson v. Wood, 152 S.W.2d 1084. 1085 (Tax. 1941). The legislatura 

in amending srtlcle 1577 :Lntended that s public auction be held before 

leasing county owned real estate. V.T.C.S. art. 1577. Therefore, the 

commissioners court has tha discretion to accomplish this purpose. 

A pub&z auction is the sale or lease of property to the highest 

bidder by means of competition for the purpose of a fair price, and 

should be fairly conducted. See Kolbo v. Blair, 379 S.W.2d 125 (Tex. 

Civ. App. - Corpus Cbristi 1964,writ ref'd n.r.e.); see also Attorney 

General Opinion V-1148 (1951); 7 Tex. Jur. 3d Auction h Auctioneers 

51. at 524. You are s?trcifically concerned about the manner of bid 

required before s lease pursuant to article 1577 is valid. You 

suggest that a sealed l):;d may be necessary. We are of the opinion 

p. 2039 
Eonoteblo Ronry Wad. - Pager 3 (a-449) 

that the comisaionecrs court may USC full diecretion in conducting the 

auction so long as the intentions of the bidder are plainly indicated 

and fair competition la insured for all parties participating. Cf. 

Bell County V. Pelta, 120 S.W. 1065 (Tu. Civ. App. 1909). rev’dx 

other grounds. 132 S.W. 1123) (Tu. 1910) (sale of county real estate 

by public auction requires public outcry). Although bids probably may 

be made anonymously. w: do not believe that the auction may be 

conducted with just a aecil.ed bid. The amount of the bid must be open 

so that competing bidders may raise their bids In response. 

You have also aske,i whether a person appointed by the county 

conmlaaionera court to t,onduct a public auction pursuant to article 

1577 may be a person other than a “county conmiasioaer”. We think 

not. Article 1577 requi::c:s that a comniaaioaers court may “appoint a 

commissioner” to lease cxunty-owned real eatatt, See V.T.C.S. art. 

1577. The words of this provision are clear and unambiguous on this 

point. See Attorney Ger,e,ral Opinion V-477 (1948) (person must be a 

member ofthe com~Isaionc!ra court). Accordingly, we conclude that the 

person appointed by tha! cmmisaioners court to execute the lease 

itself and to oversee a public auction to award the lease of countyovued real estate under article 1577 must be a member of the county 

comdaaionera court. Tke auctioneer need not, however, be a county 

commissioner. 

SUMMARY 

Article 15Y7, V.T.C.S., requires the Dallas 

County Comis~doaera Court to conduct a public 

auction to leuae apace in the County Government 

Center to private business to be used as a 

cafeteria. ‘Ihe commissionera court is also 

required to determine whether the lease of the 

apace vi11 not: Interfere with the proper use of 

the courthoua<: , and whether the lease agreement 

will afford a convenience to those transacting 

business in the courthouse. The coemiaaioners 

court has some discretion to specify what type of 

bids may be, submitted for consideration at a 

public auction to lease county-ovued real estate. 

Sealed bids, t,owever, would def sat the purpose of 

a public auczion. Finally, article 1577 also 

requires that the person appointed by the cosmiasioners court to oversee a public auction be a 

member of the commissioners court. 

HATTOX 

Attorney General of Texas 

p. 2040 
Honorable Aenry Wade - Pagct 4 (Jn-449) 

JACK EIGBTOUER 

First Assister& Attorney Gmeral 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney (General 

RICK GILPIX 

Chairmen, Cpinion Committee 

Prepared by Tony Guillory 

Assistant Attorney General 

p. 2041