120

      OFFICE   OF THE   ATTORNEY    GENERAL   OF   TEXAS

                           AUSTIN




Honorable H. 8. Virgil   Crawford
County iittorney,  Tarry county
Brownf ield, Torae

Dear Sir;




                                              ttar or July 9,
                                              rtcmit upon the



                                                 feld, Texas,
                                                  6 320 Qaro
                                   o be usmd for an air-
                                     owned andoontrollsd
                                    order to aoquire the
                                   h Is about the only
                                   nsd, it wlll b-a aeoes-
                              tion or 640 am48 lo one
                              e OS the county and oity
                            8 040 aoree and then eel1 the
                       eked   to a private lndlvfduel.
                       y or Terry County and the city
                      purohase the 320 aarea not desired
                    rt and then turn around and sell it
                    tnd1vldusl without profit   or lose
       on mlae?”

            Your question has two fsaturer,  nemlp: whether
the oounty and oitg my sot jointly in puroheslng and operat-
ing an airport;  and, whether aurplua land aoqulred for airport
PurPoees may be sold without profit or loss.
                                                                       1219   _




             Itinllamentclry, 0r course, that ootmtle8 aot
through their governing bodies,     tha oomlaelonerr~     oourt,
whose authority   1s not plenary but strlotly    llaltsd   to the
powers expressly   or Lnplfedly oonierred   by law.     Authority
to establish   and mlntaln   airport8  fe contained in Article
1269h, Vepnon*e manotated Civil Statutes,      which provldss
in part:

             “Seotlon 1 &That the governing body of
      any lnoorporated      city in this State may receive
      through    gift or dedloatlon,      and la hereby em-
      powered to aoqulre,       by purohase without oohdansa-
      t.j,on or by purcheet     through coabnaatlon     proassb-
      lngs, and thereafter       maintala   and operate ae sn
      airport,    or lease,    or sell,   to the Federal Govern-
      ment, traots oi lend either within or without the
      corporate     lfmlto or such olty snd wlthln the county
      in whfah suah aity is situated,         tand the Commisefou-
      em* Court of any county msg likewise aoquire,            main-
      taln and operate for like purpose traote of land
      within the limits of the couaty.

            "'B - That the   governing   body of any lnaor-
       pomted olty in this Stste my receive through
       girt or dedication,     and is hereby empowered to
       acquire    by purohass without   oondemmtioh,    and
       thOreUiter tiintaln     and operate as an airport,
       or lease, or sell to the Peaeral Goverment,          traots
       of land without     the county in which alaoh oity is
       sltutited,   provided said traota are not within
       five (3) tiles     of another incorporated   olty that
       hzs a population     of more than flitem   hundred
       (1530) people, aoeordlng to the last preoedlng
       yederal Ceoeua,
             “C - Thzt the governing body Of any inOOr-
       porated aity in this titnte may, and is hereby
       erapowered, to aoqulm   through oondemnatlon pro-
       ceedinea,  traotn of land located without the
       county in which said city is loaated,    provided
       said traots of lend are within six (6) miles of
       the county boundary of the county in whioh said
       olty Is located,   and ore not within five (5) allee
       of another lhoorporeted   city having a population
       in excess or f lttaen hundred (1500) people, au-
                                                                                       123
     ii0nor;lble        n. a. vlr@     cruwrord,    paga 4




                           WSOO.  2. (a)  For  the QU~QOS~0r condom-
                   ihg or Qurohaeing, either or both, lande to be
                   use& and Paiotalned      as prOVided i!l SeCtloh 1
                   hereof,    and i.aQroving and equ1ppb.x the 3am for
                   ouoh use, the governing body 0r any city or the
                   Co.-J3lia~tonerv Court Or my oounty, falling with-
                   in the teriuv or such Seotlon,      my iS3ue negotiable
                   bonds 0r the city or or the county, 90 the oaae my
                   be, and levy taxes to provide for the intereat          and
                   linking ruhdo or any such bon&e BO issued, ?he au-
                   thority    hereby given for the issuanoe Or such bonds
                   ana levy and oollootion       or snah taxes to be oxer-
                    oiaed in aooordanae with the provlslons       or Chapter
                   1 or Title 22 or the &vised        Civil Statutea of 1925.
                          "l   * *

                           'Sec. 3. Any Air Port aoqoired under and by
                   virtue or the term of this Aot shall be under the
                   manage~mantand oontrol of the IgovernIng body of the
                   olty or the Co:mlssloners*       Court or the county 90-
                   quiring the mm, whloh la hereby expresely authorlz-
                   ed and enpowered !:o lfaprove, malntaln and conduct
                   th6 3aa as UP Air Port, and for thnt purpo3e to
                   make and provide therein all neoeosary or rlt lmprove-
                   nents und raollltleo      end to rix   suoh reasonable    oharaes
                   tor the u3e thereof a8 such governing body or Co.mla-
                   8loners'    Court ehall deem fit,     and to make rule8 and
                   regulations     governing the use thereor.      All proceeds
                   iroe. suah chkrgea shall be devoted exolu3lvely          to the
                   m&itenmoe,       up-keep, lnprovonent and OpfWrstloh Of
f                  such .iir Port a%d the faoillties,       structuree,    and
i.                 l=prove:uente therein,      and no oltp or oounty s&l1
i                  be liable    for lnjuriee    to barsons resulting    from
f;                 or caused by any defeotive,       unaound or uneare oon-
?                  dition or any 3uoh Air Port, or any part thercot,
                   or thing of any oharaoter therein or resulting from
lj                 Or caused by any negllgenoe,       rant of skill, or lmk
                   Of Care on the part ot any governing Bor;rd or Co+
                   missionere'     Court, orriaer,   agent, servant or em-
                   ployee or other person with referenoe         to the con-
                    atruction,    lmproveinent, mahagement , conduct, or
                   ~kitenanoe      or any euoh i&r Fort or any structure,
                    ir;L3rovezent, or thing of any chsrscter      whatever,
                    l2cated therein or aonnooted thererlth.         * * **
                                                           122




cording to the last prraedlnf4 Federal Census;
sn& that said olty :aay thereaftar  maintain and
operate aa an airport,  or lease,  or sell,    said
tracts to the Federal Goverment;    provided,    how-
ever, that the @ant herein made to POWire land
through condemnat ion prooeedlnge,  rlthout    the
county in whioh said olty Is located,    shall
expire on December 31, 19412, but that tracts      Of
land acquired prior to that date, and under the
authority  oi this kct my continue to be oper-
ated, leased, or eold, ae provided in this Act.
“D - In addition to the power herein granted,
  the Comlasioners’      Courts of the eevsral ooun-
tlea or thla State are hereby autborlzed       to lease
any airport that may be aoqulred by the county,
a8 herein provldea,      to any lnoorporated  OltY or
munloipallty    wlthln such cou::ty, or to the Federal
Govermcnt,     ior the purpose oi maintainin& and
operating    an alrgorti   and provided further that
any ttio~q.oporated city having aoqulred land for
an airport,    or aa airport,    under the authority
or thla Aot, shall have the right to leaee said
land or said airport to the county in which said
incorporated     olty 18 loarted.
       “E - In addltlon to the power Bshloh it may
now have, the governing body of an incorporated
olty vholl have the power to sell,        oonvey, or
lease,   all or any QOrtiOn8 ot any airport8      here-
tofore   established    or that may be hereartor es-
tabllehed,    or any land, acquired under the prod-
siona or this .4ct, to the United States of America
for any purpose deemed by the Government or the
United State6 neoeasary ror National 1)eiense, or
for air mall purpo6e8, or any other publio pur-
pose, or to the aate oi Texas, or any branch
of the State Government, or to any other person,
rlr0,   or oorporatlon,    to oarry out any purpose
necessary or lnoldental       to Rational Defense or
training    incidental   theretoi  and th?t such govern-
lag body shall provide rules and regulations         ror
the proper nsn or any such airports        in connection
with the purposes rtated herein.
Xonorabls    fi. 8. Virgil   Crawford,   pug* 5




                There are zany lnetanoaa In whloh the Legisla-
ture     har authorized oountlaa and altIe        to oooperatb with
eaoh other in undertaking tarLou           projsota.      glthout at-
tempting     to br exhnuetiw,     we note for exmple       thut Arti-
018 4434, Rsvioed CIrIl iStatutes, 3rovldes for their oooprra-
tlon In making Impmreaentr nrao~ssary to Iriarovs the pabllo
health and promote sanitary regulations;            &lo18     Qu-
vidrs ror their oooperatlan         in ereotln$   brldces;     Art1016
MO8 provider for their oooperation            In eatabllahlng    a
hoapitall     Article  6018e provides for their oooparation          in
rstabllrhing      perks end srticlr    4436s. V.A.C.S,, dooperation
in the formation of a olty-aounty          health units,       rbreorer ,
Artlola 52480, V.A.C.S      ., provides    that  oitlss   and  oountleg,
my jointly      aoquiro lands for the use of the Federal Covera-
nlent.
                 Artlole   1209h, V.A.C.S., however, da88 not Pro-
vldr   for   the joint acquisition,     ostabllehmnt    and Inafnten-
anoe of ari alrport.        It provides that alther a olty or a
oounty my aoqulro land for airport           purposea in the manner
specified,      and Seation 5 proridar     that an sirport  80 ao-
qulred shall br under the managaxent and oontrol of the
governing body of the olty or the @ommiaaionera* oourt
of the county aoqulrlng sane.          While one say lsnar to the
other,     (%otlon    l-D, Article   1269h) there are no pro~lsIone
for joint aotion.
                In Opinion No. O-1000 this departmnt held that,
legialativs     authority laoklng,a oity and oounty 0oul.d not
legally    enter into a partnership agreement to purohase a
motor grader ior road and street repair work.
              In Opinion No. 0-2go'ol this dbpartaent  held thst
a oounty oomleolonera~    aourt wae not authorized,    leglelatlve
authority  laoklng,  to enter into a oontraot and partnership
with a city and expend oounty funds ior the ooaatruotlon         and
aquipsent of a alty-aounty    jail; aad la Oplnloa MO. 04985
We hrld that Aavarro County had no authority      to cooperate
with the City of Corsiosna in establlshlng      and maintaining
a QitY-QOUnty health unit,
              Under Artlole   ledOh efthar a oounty or a city
Say eatabllsh   and mIntain    an airport but the method6 therein
Provided are rxahsioe      (Porter Y. City or yiaao, (Sup. Ct.)
eSS 3. W. 1104); aad there is no legisletlvo     authority  ior
,.   .
         wuuciiole       n.   3.. Virgil   Cr,awford,   page 6                   125




         aoaoerted aotloa.    It followa           that In our opIaioa Terry
         County and Browafield,    Texas,          say not jOIatlY aoqulrr and
         operate an airport.
                      Your second question is whether or not Terry
         County say aoquire 320 acres not needed for na airport,
         (but which must be aoqulred la order to obtain the desired
         1-d)   sad then sell the sane to a prirste individual   without
         profit or loss.
                         ;srtlalo 1269h, supra, ooatalas smple authority
         for Terry     County to purohass a&port property     by purohasr
         without aondeaaatlon or by purahaso thsough        aondemmtlon
           roceedlngs.      It ma employ Its permanent lmprovs~neat fund
         1Oplaloa NO. 04312 f or It may Issue bonds.         Article 1577,
         Revised Civil Statutee, provider authority for the erals of
         oouatf realty and spealfles      the maaer of its dlspoaltloa.
         Sea Soalf Y* Collla Count&(Sup.        Ct. J 16 9. X. 314.

                       In our oplalon the quo&ion oi whether or not
         Terry           should purohass 040 aores IA order to obtain
                     County
         a aholoe 320-aare airport       site, with the Idea of disposing
         of the 320-aora    surplus without profit or 105s to the oounty
         Is an adnlalstratlvs      rather than a legal problem.    If, In the
         ererolse   o? their good buslneas, judgmnt and sound dlsoretlon,
         the Terry County Comlssloaers’        Court btlleves  It best to ob-
         tain the 640aore      tract by purohsse wltbbut oondemaatloa (sell-
         ing without profit      or loss the 320-aare surplus) rather than
         obtain the 320-aore traot by ooademaatloa, we know OS ao legal
         objeotlon.    The problm arlsiag      in Moore v. Cordon, (Clr. APT!.)
         122 S. fl. (8d) 239, Xrlt Dlsmlae4td, does aot present itself
         for all 640 aores will not have been dedioated for the use
         of tha publla as aa airport.
                      The problsm,as we am It,18 the best way IA whloh
         to obtain the 320 aore airport and thnt problem Is one oalllag
         for the exeralse  of thr CoacllasIonero* Court’s good business
          W&mat.