ATTORNEY GENERAL OF TEXAS GREG ABBOTT

February 13, 2008

The Honorable Marsha Momoe Terrell County Attorney Post Office Box 745 Sanderson, Texas 79848

Dear Ms. Momoe: Opinion No. GA-0602 Re: Whether, under Local Government Code chapter 334, Terrell County may borrow money to construct an approved venue project, to be repaid from the venue project fund (RQ-0618-GA)

Local Government Code chapter 334 authorizes a county to construct an approved venue project and to establish a venue projectfund to pay costs associatedwith the project. See generally TEX. Loc. GOy'TCODEANN. ch. 334 (Vernon2005 & Supp. 2007). You ask whether, underLocal Government Code section 334.042, Terrell County (the "County") may "borrowfunds" to construct an approved venue project.! You explain that "[t]he loan will be paid offfrom" sales and use taxes "as they are collected." Request Letter, supra note I, at 1-2; see also TEx. Loc. GOy'TCODEANN. § 334.081(a) (Vernon 2005) (authorizing a county to impose a sales and use tax). I. The Relevant Statute: Local Government Code Chapter 334 Under chapter 334, a county may plan, acquire, establish, develop, construct, or renovate a venue project if, among otherthings, voters approve the project. See TEx. Loc. GOy'T CODEANN. § 334.021(a) (Vernon 2005). For purposes ofchapter 334, a "venue project" is a venue, such as a sports facility, a convention center facility, a tourist development area, or a project authorized by article 5190.6, section 4A or 4B ofthe Revised Civil Statutes, and related infrastructure "that is planned, acquired, established, developed, constructed, or renovated under" chapter 334. Id. § 334.001(4)-{5); see also TEX. REy. CIV. STAT. ANN. art. 5190.6, §§ 4A-4B (Vernon Supp. 2007) (authorizing the creation ofdevelopment corporations in certain municipalities). An "approved venue project" is a venue project thathas been approved by the county's voters. TEx. Loc. GOy'T CODE ANN. § 334.001(1) (Vernon 2005).

ISee Letter from Honorable Marsha Monroe, Terrell County Attorney, to Honorable Greg Abbott, Attorney General ofTexas, at2 (Sept. 4, 2007) (on file withthe Opinion Committee, also available athttp://www.oag.state.tx.us) [hereinafterRequestLetter]; see also TEX. Loc. GOV'TCODEANN. § 334.042 (Yernon2005) (requiringthe establishment ofa venue project fund in a municipality or a county in which an approved venue project is located).The Honorable Marsha Monroe

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A countyhasbroad powerunderchapter334 to "perform any actnecessary" to fully exercise its "powers under this chapter." 

### Id 

### § 334.041(a). A county has specific authority to finance an approved venue projectbyimposingvarious types oftaxes, including avoter-approved sales anduse tax. 

### See id 

### § 334.081(a), (c). A county also may, under section 334.043(a), issue "bonds, including revenue bonds and refunding bonds, or other obligations to pay the costs ofthe approved venue project." 

### Id 

### § 334.043(a); 

### see also id 

### § 334.043(b) (requiring the bonds and other obligations to be approved "as required by" Government Code chapter 1202); TEX. GOy'TCODE

### ANN. § 1202.003 (Vernon 2000) ("Review andApproval ofPublic Securities"). The "bonds or otherobligations must be payable from and secured by the revenues in the venue project fund." 

### TEx. Loc. GOy'T CODE ANN. 

### § 334.043(c) (Vernon 2005). In accordance with section 334.042, a county inwhich an approved venue projectis located must establish a "venue projectfund" into whichthe county must depositthe proceeds ofanytaxes approved by the voters under chapter 334, as well as bond revenues and certain other money. 

### See id 

### § 334.042(a)-(b). Section 334.042(d) expressly authorizes a countyto use its venueprojectfund to: (l) reimburse or pay the costs of planning, acqumng, establishing, developing, constructing, or renovating one or more approved venue projects in the
... county; (2) pay the principal of, interest on, and other costs relating to bonds or other obligations issued by the
... county or to refund bonds, notes, or other obligations; or (3) pay the costs of operating or maintaining one or more approved venue projects. 

### Id 

### § 334.042(d). 

### II. Factual Background You indicate that in November 2000 County voters approved imposing a sales and use tax to finance a "venue project[] and related infrastructure."2 Request Letter, 

### supra note 1, at 1-2. The County has placed the tax proceeds in the County's venue projectfund. 

### Id at 2. The County Judge now asks "whetherthe [Clounty may borrow funds to pay for construction ofthe convention center facility, which is part ofthe venue project." 

### Id You further inform us that the loan will be repaid from the proceeds ofthe sales and use tax dedicated to the venue project "as they are collected" and
'Attorney General Opinion GA-0156, issued in 2004, considers another aspect ofthe County's use ofvenueproject sales and use tax proceeds. See Tex. Att'y Gen. Op. No. GA-0156 (2004) at 1-2. That opinion analyzes whether the County could use the proceeds on avenue projectconsisting of"aconvention and visitors center, two annexes to the center, and related infrastructure." Id at 2. You advise that the County "has proceeded with its venue project in accordance with that opinion." Request Letter, supra note I, at 2.The Honorable Marsha Monroe

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that the loan documents will recognize this "repayment scheme." Id. You therefore ask whether chapter 334 authorizes the County "to borrow funds, to be repaid from the venue tax proceeds, to pay for the construction ofthe convention center facility." Id. 

### III. Analysis On its face, section 334.042(d) authorizes a county to use its venue project fund to pay the costs ofconstructing an approvedvenueproject, including costs relating tobonds orotherobligations issued to finance the project. See TEx. Loc. GOy'TCODEANN. 

### § 334.042(d)(1 )-(2) (Vernon 2005). Consequently, the County may use money from the venue project fund to repay funds borrowed, in the manner authorized by chapter 334, to construct an approved venue project. We next consider a county's authority to borrow funds to pay the costs ofan approved venue project. In general, a county may not borrow money "except through the issuance of bonds, certificates ofobligation, orotherforms ofindebtedness" thatare specificallyauthorizedbylaw. Tex. Att'y Gen. Op. No. JM-274 (1984) at 

### 1. "Counties have no [general] statutory authority to merely borrow money from a bank." Tex. Att'y Gen. Op. No. JC-0139 (1999) at 3 (quoting 35 DAVID B. BROOKS, TEXAS PRACTICE: COUNTY AND SPECIAL DISTRICT LAW 

### § 17.27 (1989»; see also TEx. CONST. art. XI, 

### § 7 (prohibiting a county from incurring debt without the concomitant provision of a sinking fund). And "[s]tatutes respecting the power oflocal governments to create a debt must be strictly and narrowly construed." Lopez v. Ramirez, 558 S.W.2d 954, 957 (Tex. Civ. App.-San Antonio 1977, no writ); accordTex. Att'y Gen. Op. No. JC-0036 (1999) at 10. A county mayborrow funds "to paythe costs ofan approved venueproject" only as permitted by section 334.043, which authorizes a county to "issue bonds
... or other obligations" that are submittedto the attorney general forreview andapproval as Government Code chapter 1202requires, that are payable from and secured by the venue project fund, and that mature within thirty years of "their date ofissuance." TEx. Loc. GOy'T CODE ANN. 

### § 334.043(a)-(d) (Vernon 2005). No other statute in chapter 334 authorizes the borrowing offunds by other means. Thus, consistently with section 334.043, a county may not borrow money to pay the costs ofan approved venue project by means other than the issuance ofbonds or other obligations. See id. 

### § 334.043(a). You indicate that the County wishes to borrow money and contemplates a loan, but you do not further describe the means bywhich the Countyproposes to borrowthe money orto evidencethe loan. See Request Letter, supra note I, at 1-2; cfTex. Att'y Gen. Op. No. JC-0139 (1999) at 3,5 (suggesting that a loan may be evidenced by the issuance of"obligations
... sold to purchasers in exchange for money," but also suggesting that the requestor "would like to obtain a loan
... without following statutorily required procedures"). Nor do you ask about the legality ofa particularmethod offinancing. See Request Letter, supra note 1, at 1-2. Consequently, we do not consider whether any particular means offinancing or ofevidencing the loan constitutes a permissible issuance ofan obligationunder section 334.043. ButcfTex. Att'y Gen. Op. No. JC-0139 (1999) at 3,5 (stating that statutes that authorize a county to borrow funds for road and bridge construction require the county to issue and sell bonds or other obligations in compliance with statutory procedures and that these "procedures are not optional").The Honorable Marsha Monroe

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### SUMMARY Acounty, suchas Terrell County, mayuse money inits venue projectfundtopayanyof thecostsofconstructinganapprovedvenue project. Thecountymayborrowmoneytopaysuchcosts,toberepaid from the venue project fund, only by the "issuance ofbonds
... or otherobligations."

KENT C. SULUVAN First

### AssistantAttorney General ANDREW WEBER 

### Deputy Attorney General for Legal 

### Counsel NANCY S. FULLER 

### Chair, Opinion Committee Kymberly K. 

### Oltrogge Assistant Attorney General, OpinionCommittee