Untitled Texas Attorney General Opinion ( 1973 )

OF T?JmLAs
AUSTIN. 'lkx~18 '18'3'11
JOHN I.. BILL
Ax-roRNEy 0-m
June 4, 1973
The Honorable Naomi Harney Opinion No. H- 4s
County Attorney, Potter County
Amarillo, Texas 79101 Re: Authority of Commissioners
to acquire property for use
as service building and to
Dear Ms. Harney: provide public parking.
You have requested an opinion from this office on the following
questions:
‘QUESTION NO. 1. May the Commissioners
Court of Potter County, Texas, expend funds pres-
ently on hand in the County General Fund for the
purpose of acquiring real property adjacent to the
Courthouse to provide a Service Building for the
County owned vehicles (Sheriff’s and Probation
Department’s) and to provide parking for these
vehicles, and parking for the public having business
in the Courthouse?
.
‘QUESTION NO. 2. If the answer to Question
No. 1 is ryes’ is it necessary to go through con-
demnation or can the Commissioners Court make
a direct purchase from the owner of the property?”
Article 5. $18, Texas Constitution, provides that the County Commissioners
Court “shall exercise such powers and jurisdiction over all county business
as is conferred by this Constitution and the laws of the State, or as may be
hereafter prescribed. ‘I
The powers of Commissioners Courts shave been prescribed by the
Legislature in Article 2351, Title 44, V. C. 5 The pertinent portions are
a* follows: uEach Commissioners Court shall: . . . 7. Provide and keep
in repair courthouse, jails and all necessary public buildings. I’
p. 180
The~Honorable Naomi Har’ney, page 2 (H-45)
This enactment is also pursuant to the authority of Article 11, $ 2, Texas
Constitution, which provides: “The construction of . . . courthouses . . .
shall be provided for by general laws. ”
‘5
Article 3264a, Title 52, V. C. S., capfcs,e upon counties the right of
Eminent Domain “for the purpose of condemning and acquiiing land . . .
where said land . . . is, nec.essary in the construction of . . . courthouses
. . . or for other public purposes, where such purpose, is now or may here-
after be authorized by the Constitution or statutes of this State. ”
Article 3264, in setting out the general procedure to be utilized in
Eminent Domain proceedings, provides:
,I . . . [T] he party desiring tb condemn the
property after having failed’to agree with the owner
of the land on the amount of damages shall file a
statement in uniting with the county judge of the
county in which the land . . . is situated. ” (emphasis
added)
The authority of the Commissioners Court over county business is
limited to that specifica1l.y Conferred by the Texas Constitution and statutes.
Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App., 1951, no writ); Commia-
sioners’ Court ‘of Harris County v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App.,
1929, ref’d. ); Landman v. State, 97 S.W.2d 264 (Tex. Civ. App., 1936,
ref’d. ); Eiddibach v. Davis, 99 S.W.2d 1067 (Tex. Civ.~App., 1936. err. die’m); .,
Howard v. Henderson County, 116 S.W.2d 479 (Tex. Civ. App., .1938, Fef’d. );
Galveston, H & S A Ry Co. v. Uvalde County, 167 S. W, 2d 305 (Tex. Civ. App.,
1942, ref. W. o. m. ); and Rodgers v. County of Taylor, 368 S.W.2d 794 (Tex.
Civ. App., 1963, ref.,, n. r.e. ). It also has’the implied power to do what may
be necessary in the exercise of the express duties conferred upon it. Galvestonc
H & S A Ry Co. v. Uvalde County, supra; El,Paso County v. Elam, 106 S.W.2d 393
(Tex. Civ. App., 1937, no writ); and Dodson v. Maishall. 118 S. W.. 2d 621 (Tex.
Civ. App., 1938, err. dis’m).
In the El Paso County case, the right of the Commissionera Court to
construct a drainage ditch was brought in issue. Article 16. 59a, Texas
Constitution, provided that “reclamation and drainage of its over-flowed
lands, and other lands needing drainage” are declared public rights and duties
and the Legislature shall paes all laws appropriate thereto., In Article 2351,
p. 181
The Honorable Naomi Harney, page 3 (H-45)
the Commissioners Court wan granted the power to exercise general
control over “all roads, highways. ferries and bridges in their counties. ‘I
The Court determined in construing these:. provisions, that the construction
of the ditch was “county business” and that the Commissioners Court had
implied authority to do what was necessary to carry out ita expressly
delegated duties.
In County of Cameron V. Wilson, 326 S.W.2d 162, 167 (Tex. 1959).
the court decided that as an incident to the county business of establishing
and maintaining public parks, a county may provide parking space for
motor vehicles (trailer park) and electricity for lights, fans and other
mechanical appliances.
“Public Building” as used in Article 2351, 5 7, wa8 defined in Dancy
v. Davidson, 183 S.W.2d 195, 198 (Tex. Civ. App., 1944, ref. ) aa “a
building used primarily for public or governmental purposes. that is,
to house:, public or governmental agencies. The power to provide includes
the power to purchase. I’ The court further stated that the Commisrioners
Court is the legal body authorized to determine whether such a building
is necessary and its decision in that regard cannot be disturbed except
upon a showing of abuse of discretion. See also 86 Tex. Jur. 2d, Counties,
pp. 3R-12. A Service Building would probably be within the implied powers
of theicourt, but it might fit within this definition. A parking ldt would not
be encompassed within the meaning of “public building”. Thus. the basic,
question is whether under its implied powers the Commiasionercl Court
could authorize the construction of a Service Building and a parking lot
of the nature designated.
In Dodson v. Marshall, supra. the court recognized that the Commir-
sioners Court, in discharging its duty of providing a courthouse, has the
implied authority to regulate its use within reasonable bound!.
The precise point of the authority of a Commissioners Court to eatablirh
and ope rate a parking lot for county purposes har not been adjudicated in
Texas. InHayden v. City of Houston, 305 S.W.2d 798 (Tex. Civ. App.,
1957, ref., n. r. e. ), the court recognized that a municipality can operate
a parking lot for uL)eonly by that portion of the public desiring to virit a
municipal establishment on the baair that it is a valid public use. The court
in Hayden followed the rule, which watt enunciated in City of Cleveland V.
Ruple, 200 N.E. 507, 103 A.L.R. 853 (Ohio Sup. 1936).
p. 182
,
The Honorable Naomi Hamey, page 4 (H-45)
The power of a county to acquire by condemnation private property
for a parking lot adjoining a courthouse and hall of records was dealt
with in County of Essex v. Hindenlang, 114 A 2d 461 (N. J., Superior
Court, 1955). The Pot was to be utilized by county officers and ‘.employees
and other persons lawfully using the county facilities located in the county
buildings. The N. J. statute provided that counties had the power to
“acquire and maintain such buildings as may be necessary and suitable
for the accomodation of the courts . . . for the transaction of public
business. . . or any other public purpose. ” The court held that the
county had express authority to condemn land for a courthouse and with
regard to the parking lot stated (p. 465):
I, . . . [ T] he acquisition and maintenance of a
parking area for the use of county officers and’
employees, and for those connected with the court
or who come on county business, is a necessary
and reasonable adjunct to the acquisition and main-,,
tenance of a courtho- e and administration building.
True, authority to condemn for such a parking area
has not been conferred upon counties in express
words, but the power ia certainly one that can be
implied from the specific grant . . .‘I
The New Jersey court apparently had no problem in determining that
the county had by virtue of its authority to acquire and ,maintain a courthouse,
the implied authority to acquire and maintain a parking area for use by
county officers and employees and the public coming to co&nty building6
on county business. In light of thin specific holding,, we are of the opinion
that a Texas Commissioners Court by virtum of its implied power has the
power to acquire property for parking for the public having business in
the courthouse. See also Article 2372di4. 23728 and 23726-1 authorizing
the commissioners court to construct certain type6 of parking lots.
County Commissionera Courta are required to furnish motor vehiclea
to Sheriffs, (Article 6877~1, Title 120, V. C. S. ) and Probation Officeri ’
(Article 5142a, Title 82, V. C. S. ) for UBCwith regard.to official duties.
If a CommiaFioners Court has an implied power to acquire and provide a
parking lot for the benefit of people uring the county courthoua e by virtue
of the express power to acquire and provide a courthouse, it would be only
reasonable that having the express duty to furnish motor vehicles to Sheriff8
and Probation officers, the Commissioners Court has the implied duty to
p. 183
1. ’
The Honorable Naomi Harney. page 5 (H-45)
provide service facilities and parking for these vehicles. It is our opinion
that the Commissioners Court can expend funds to acquire the real property
in question for the purposes specified.
In your second question you ask whether it is necessary to utilize
condemnation to acquire the.property or whether the Commissioners Court
can make a direct purchase. “Good faith negotiation by the condemner
with the land owner is a prerequisite to the condemner’s exercise of its
power of eminent domain. ” City of Houston v. Plantation Land Company,
440 S.W.2d 691 (Tex. Civ. App., 1969, ref., n. r. e. ). The right of eminent
domain cannot be utilized until a good faith attempt has been made to acquire
the property directly from the land owner. Thus, if a direct purchase can
be accomplished, it is to be utilized.
S U M M A R’.F
The Commissioners Court can expend funds
presently on hand in the County General Fund for
the purpose of acquiring by direct purchase, if
possible, real property, which is adjacent to the
courthouse, to provide a Service Building for
county owned vehicles, to provide parking for these
vehicles and for the vehicles of that portion of the
public having business in the courthouse.
Very truly yours.
OHN L. HILL
05 Attorney General of Texas
‘p_SO ED:
h
r- \~ -e
DAVID M. KEN
Opinion Committee
p. 184