Case Information
*1 The Attorney General of Texas March 13. 1986
JIM MAlTOX
Attorney
Eouorablc Henry Wade Opinion PO. JH-489 District Attorney s~premo Court Building Re: Wbcther a cmty my, by auction, Services Building P. 0. BOX t2yB Dallas, Texas 75202 lease courthouse space be used by Aus,,“. TX. 78711. 2548 51214752501 a private cafeter(Z Telex 910187+1367 Tslecoqisr 5W475-0266 Dear Mr. Wade:
You have InEozmed us that the Dallas County Comissioners Court 714 Jackson. Suila 7w Dallas. TX. 752024506 wishes to lease e,pace ovned by Dallas County lccated in the Cccnty 214l742-8W Government Center. The court proposes 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 4824 Alberta Ave.. Suite 160 contains county wned cafeteria equipment which till be leased with El Paso. TX. 799052793 91Y5353464 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 is the intent of the 1001 Texas. Suite 700 county obtain for the county treasury the greatest amount of rent Houston, TX. 77002~3111 that may be obtaijmed through the competitive prccess. In that regard 71322M886 you have requested our opinion on the authority of the commissicters court to lease the space and vhat procedures should be utllizet. 806 Broadway. Suite 312 Lubbock. TX. 79401-3479 The Dallas Colmty Coasaissioners Court has only the powers conferred 80617476230 either expressly or by necessary implication by ebe constltutior. st.d statutes of this state. See Tex. Coast. art. 7’. 518; Canales v. 43X N. Tenth, Suite S Laughlin, 214 S.W.2d 451. 453 (Tex. 1948). The SFxty-third Legisla- McAllen. TX. 78501.1685 ture amanded art,Lclc 1577. V.T.C.S., to read as fcllous: 512682-4547
The Commissioners Court may. by an crder to ba MO Main Plaza. Suite 4M) enteres on its minutes, appoint a Condssloncr to San Antonio, TX 782052797 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 An Equal OPPo~u~itY~ Aftirmative Action Employer 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 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.
Honoreble Renry Wade - Page 2 (a-449)
The authority of a county commissioners court lease space within a courthouse 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 is nacessary of to the convenience 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). 1577 requiras the commissioners court to follow a
Article specified procedure befl)re leasing county-owned real estate. We believe that this statutory procedure is -mandatory and the commis- sioners 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.. 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 General Opinion %z385 (1985). Pou provide no information indicating 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 *3 Eonoteblo Ronry Wad. - Pager 3 (a-449) 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” 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 award the lease of county- ovued 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 be used as a cafeteria. ‘Ihe commissionera court is also required to determine whether 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 cosmia- sioners court to oversee a public auction be a member of the commissioners court.
HATTOX Attorney General of Texas *4 Honorable Aenry Wade - Pagct (Jn-449)
JACK EIGBTOUER
First Assister& Gmeral
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney (General
RICK GILPIX
Chairmen, Cpinion Committee
Prepared by Tony Guillory
Assistant Attorney