Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
August 20, 1980
MARK WHITE
Attorney General
Honorable Mike Atkins Opinion No. MW-22 3
Ector County Attorney
Ector County Courthouse Re: Whether a county may charge
Odessa, Texas 79761 a fee for use of airport easement
granted in the past.
Dear Mr. Atkins:
You inquire about the authority of Ector County to charge a fee based
on gross receipts to airport related buanesses which operate from private
property adjacent to the airport. The county has in the past granted some
“through the fence operators” permanent easements to give them access to
airport nmways and taxiways. You wish to know whether you may IXJW
impose the gross receipts fee on (1) the use of easements granted in the past,
and (2) the use of easements to be granted in the future.
You have sent us documents relating to the grant of an easement to a
“through the fence operator.” The grant describes the property interest
conveyed as an easement to be used to build and maintain a permanent
airplane taxi-way and tie-down &ea. Some language in the grant might
indicate that the county only granted the privilege of using or improving
airport space for commercial purposes. See V.T.C.S. art. 46d4(al(l).
However, the grant and your request letteascribe the interest as an
easement, and cur opinion is based on the assumption that you have
correctly identified the property interest in question. But cf. Southwest
Texas & International Flyim Club v. City of Del Rio, 324 S.W.2d 40 (Tex.
Civ. App. - San Antonio 1958, writ rePd nr.e.1 (public grants are strictly
construed against the grantee and in favor of the public). The grant recites
consideration of $10 and benefits accruing to the county and the general
public, and notes that the public has the right to use the taxi-way end tie-
down area subject to the grantee’s right to charge for the use thereof.
An easement is an interest in land. Settegast v. Foley Bros. Dry Goods
co., 270 S.W. 1014 (Tex. 1925). A public body must have statutory
authorization in order to convey an easement. Attorney General Opinion
H-47 2 (19741. In cur opinion, Ector County hsd authority to grant en
easement in the airport. Article 4663, V.T.C.S., provides in part:
P. 710
. .
Honorable Mike Atkins - Page Two (MI+223)
Except as may be limited by the terms and conditions of eny
grant, loan, or sgreement pursuant to Section 12 of this Act, every
municipality may by sale, lease or otherwise, dispose of any
airport, air navigation facility or other property, or portion thereof
or interest therein, acquired pursuant to this Act. [V.T.C.S. arts.
4661 to 466221 Such disposal by sale, lease or otherwise, shall be
in accordance with the laws of this State, or provisions of the
charter of the municipality, governing the disposition of other
property of the municipality. . . .
(Footnotes omitted). This provision applies to airports established by counties pursuant to
the Municipal Airports Act. See V.T.C.S. art. 4661(d). You have not informed us of any
terms, conditions, or agreement undertaken pursuant to article 46d-12, V.T.C.S., that
would prevent you from granting an easement over airport property. Article 1269h,
V.T.C.S., gives the commissioners court additional powers over county owned airports:
In addition to the power which it may now have, the Com-
missioners Court of any county . . . shall have the power to sell,
convey or lease all or part of any airport or property connected
therewith, heretofore established or that may be hereafter esta-
blished . . . to any person, firm or corporation. . . .
Sec. 1 (E). This provision was enacted at the same session of the Legislature as the
Municipal Airport Act and should be construed in harmony with it. Acts 1947, 50th Leg.,
chs. 114, 273. See Shaddix v. Kendrick, 430 S.W.2d 461 (Tex. 1968). In our opinion, these
provisions authze the commissioners court to convey an easement over the airport. We
need not consider the effect of article 46d-4, V.T.C.S., which empowers the county to
enter into contracts or leases for a term of up to forty years authorizing persons to use or
improve airport space for commercial purposes.
When the county conveys an easement to any person, it must receive adequate
consideration in order to avoid violation of constitutional prohibitions against the grant of
public funds. See Dodson v. Marshall, 118S.W.2d 621 (Tex. Civ. App. - Waco 1938, writ
dism’d); AttorneyGeneral Opinions H-520 (1975); H-472, H-403 (1974). The determination
as to the adequacy of consideration is for the commissioners court in the first instance.
The county may require es consideration for the grant of an easement snnual payments
based on a percentage of gross revenues derived from the commercial operation allowed.
See Earl Hays Rents Cars v. City of Houston, 557 S.W.2d 316 (Tex. Civ. ‘App. - Houston
Et Dist.] 1977, writ rePd n.r.e.).
However, we do not believe the county may now exact additional consideration for
the permanent easements it granted in the past. It does not contend that the grantee has
used the easement in a manner inconsistent with the public use of the airport or otherwise
used it in ways not within the grant. An easement is the property of the grantee. See
Texas & P. Ry. Co. v. City of El Paso, 85 S.W.2d 245 (Tex. 1935) (easement in streets
granted by city to railway is taxable as real estate). A county is bound by its valid
conveyances of property. -See Mortgage Investment Company of El Paso v. Bauer, 493
P. 711
I .
Honorable Mike Atkins - Page Three (MW-223)
S.W.2d 339 (Tex. Civ. App. -. El Paso 1973, writ rePd n.r.e.); Seaway Company
Attorney General, 375 S.W.2d 923 (Tex. Civ. App. - Houston 1964, writ rePd n.r.e.1. ii
the county wishes to recover pcesession of the easement in order to convey it ai new
terms, it must compensate the easement owner for his property. Tex. Const. art. I, S 17;
State v. Me er 403 S.W.2d 366 (Tex. 1966); Mlllar v. Snellen, 224 S.W.2d 311 (Tex. Civ.
don 1949, no writ).
SUMMARY
A county may not charge additional consideration for the use of an
easement over an airport validly conveyed in the past. The county
may convey an easement over the airport in exchange for sn annual
charge.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Susan Garrison
Rick Gilpin
William G. Reid
p. 712