Untitled Texas Attorney General Opinion ( 1985 )


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    The Attorney        General of Texas
    Declnaber
    19, 1985
    JIM MAlTOX
    Attorney General
    Mr. Ralph Lovenflc!ld             OpinionNo. JM-394
    Chairman
    Supreme Court Bullding         Board of Regents                  Re: Whether Texas State Technical
    P. 0. BOX 12548                TSTI System                       Institute may acquire land from
    Austin, TX. 78711. 2543        P. 0. Box 1308                    the city of Harlingenunder certain
    51214752501                    Waco, Texas 767K                  circumstances
    Telex 9101874.1387
    Telecopier 512/475G?SS
    Dear Mr. Lowenfie1.d;:
    714 Jackson, Suite 700              You requestedan opinion relatingto the acquisitionof land from
    Dallas. TX. 752024509          the city of Harlingen by the state for use by Texas State Technical
    214!742@44
    Institute [hereinsfterTSTI] in vocationaland technicaleducation.
    0824 Alberta Ave.. Suite 160        You advise US that, in 1968, the city of Rarlingen adopted
    El Paso, TX. 799052793         ordinance calling Zenelection of the voters to approve or disapprove
    91515333484                    authority of the city commissionto convey all or part of approxi-
    mately 118 acres zw "determinedadvisableby the city commission,from
    1001 Texas. Suite 700          time to time," for the restrictive purpose of establishing
    Houston, TX. 77002.3111        operating a vocat:lonaland technical training institute and with
    71312215888                    reversion of the title in the event of a breach of the restriction.
    Earllngen, Ordimlca No. 68-11 (May 16, 1968). In 1968, the voters
    approved such a c,anveyance  of the land and improvementsin the des-
    808 Broadway, Suite 312
    Lubbock, TX. 79401.3479
    cribed area, which constitutesa total of 118.6 acres at the Harlingen
    8081747.5238                   IndustrialAir Park (formerlythe United States government'sHarlingen
    Air Force Base). Also in 1968, the city of Harlingen conveyed
    approximately22 acres to the Lover Rio Grande Valley Development
    4309 N. Tenth, Suite B
    McAllen, TX. 78501.1885
    Council for the e:3tablishment of a vocationalskills training center.
    51218824547                    Aftar the legisla,ture  created TSTI in 1969 with a board of regents
    authorizedto accc!rlt, in the name of the state, the conveyanceof land
    and facilitiesin Cameron County and Potter County, the 22 acres were
    200 MaIn Plaza, suite 400      transferredto the state for use by TSTI. See Acts 1969, 61st Leg.,
    San Antonio, TX. 782052797
    ch. 179, at 515. TSTI continuouslyhas occusd, developed,and used
    512R25.4191
    the property as provided by chapter 135 of the Texas Education Code.
    Since the original conveyance,'the city from time to time
    An Equal Opportunltyl          transferred to the state of Texas other tracts of land from
    Afflrmatlve Action Employer    original 118 acres for the continued growth and developmentof
    vocationaland technicalschool operatedthere by TSTI.
    You ask the mllowing:
    1. 1:sthe electionvhich was held on the 11th
    day of June, 1968, as set forth in the Ordinance
    identified as 68-11, valid in the following
    respectr;:
    Mr. Ralph Lowenfield- Page 2 (JM-394)
    a. Does it define the adequate considera-
    tion for the c,ityof Rarlingen to transfer the
    property to the state of Texas?
    b. Is this an offer to any legal entity,
    including the state of Texas, which, once
    accepted by the erection of buildings and the
    training of students in compliance with the
    ordinance,corstitutesan offer and acceptance
    and binding contract?
    c. Are the subsequent transfers of fee
    simple, of the title to the state of Texas of
    tracts of land within the area describedin the
    Ordinance (6lkll). a ratification of the
    Ordinance?
    d. Is the Ordinance (68-11). approved by
    the voters of Rarlingen, still in full force
    and effect and binding upon the present and
    future city ctmsrlssions?
    e. Does th,e city of Rarlingen hold the
    title to the remaining property yet to be
    conveyedto.the state of Texas in tmst for and
    in behalf of the state of Texas?
    f. Does the city of Flarliugen,
    in order to
    rescind the Ordinanceapprovedby the voters In
    1968, requim an election called for the
    purpose of rescindingthe vote?
    Are ary future conveyances subject to
    the'provisionsof article 542lc-12, V.T.C.S.,
    or can the ps.rtiescontinue to rely upon the
    previouslyapprovedOrdinance?
    2. Does Texas estateTechnical Instituteas an
    agency of the state of Texas have the authorityof
    eminent domain :Ln the counties identified in
    chapter 135 of the Education Code wherein it
    specifies its authority to acquire title to
    property?
    3. May the city of Rarlingendonate and convey
    a tract of land to the state of Texas for use in
    building and operating a state vocational and
    technicalinatitu,te?
    p. 1803
    Mr.   Ralph Lowenfield- Page 3   (JM-394)
    4. If the cl.t:y  may make a donation to the
    state of Texas. once public hearings are held
    under the provisj,anof article 54214, V.T.C.S.,is
    it then binding csn.
    future city officials?
    These questionsare so intizrtwined with issues of fact that we cannot
    properly address them here in a comprehensivemanner. Rawever, we
    will attempt to offer some general guidance regarding the strictly
    legal issues involved. Th: informationprovidedhere is not intended
    to affirm the validity of any particularcontract. The value of the
    benefits to the city, whether such benefits furnishadequate consider-
    ation for the transaction,and whether such benefits would be deemed
    to be not less than the fair market value of the property in question,
    are fact questionsthat we cannot answer.
    The city of Harlingen,as a home rule city, has all the power not
    denied to it by the constitutionand statutesof the state. However,
    the charter of a home rule city and ordinancespassed pursuant to its
    charter authority cannot contain provisions inconsistentwith the
    Texas Constitutionor nenere.1 laws of the state. Tex. Const. art. XI.
    55; V.T.C.S. art. 1165; City of Nassau Bay v. City of Webster, 
    600 S.W.2d 905
    , 910 (Tex. I%: App. - Bouston [lst Dist.] 1980). writ
    ref'd n.r.e. per curiam, 
    608 S.W.2d 618
    (Tex. 1980); Royer v. RitK
    
    531 S.W.2d 448
    , 450 (Tex. Civ. APP. - Beaumont 1975, writ ref'd n.r.e)
    and cases cited therein;Attorney-General  OpinionM-1232 (1972). Wbei
    the  legislature enacts a statute in conflict with a prior city
    ordinance, the city ordialnce is rendered ineffectiveexcept as to
    certain vested rights. See Deacon v. City of Euless, 405 S.W.Zd 59,
    ",;v.'T;;*
    1_'6;;;s,g++$4;~f                    iy;.',4y* 'I'd  ,gz;
    v. City of Euless, the IlexasSupreme Court pointed out that the
    Legislaturecannot,by retmactive legislationapplicableto municipal
    corporations, destroy or impair vested rights which persons have
    acquired in their relationshipswith the municipal corporations,but
    municipal corporationsdo not acquirevested rights against the 
    state. 405 S.W.2d at 62
    .
    Subsequent to the adoption of the city ordinance in 1968, the
    legislatureenacted a limitationon the power of cities to sell land
    owned by a city. Article 5421c-12,V.T.C.S., originally enacted in
    1969, is a general law gcveming the conveyanceof land owned by a
    political subdivision of the state, whether the land is sold or
    exchanged for other land, Article 5421c-12 presently provides, in
    pertinentpart, that
    Section 1. N,J land owned by a political sub-
    division of the State of Texas may be sold or
    exchanged for oth'erland without first publishing
    in a newspaper of general circulation in the
    county where the land Is located or in an
    p. 1804
    Mr. Ralph Lowenfield- Page 4   (x-l-394)
    adjoiningcounty, if there is no such newspaper,a
    notice that the land is to be offered for sale or
    exchange to the g'aneralpublic, its description,
    its locationand the proceduresunder which sealed
    bids to purchase the land or offers to trade for
    the land may be su'bmitted.. . .
    Sec. 2. Bid procedures and publication re-
    quirementsas set forth in Section 1 of this Act
    shall not be applicablein the sale or disposalof
    real property in:erestsbelonging to a political
    subdivisionin the followingcircumstances:
    (1) narrow st.ripsof land, or land so shaped
    or so small as to be incapable of being used
    independentlyas zoned or under applicable sub-
    division or other developmentcontrol ordinances,
    in which went such land may be sold to the
    abuttingproperty owner or owners in proportionto
    their abutting cunership, such division between
    owners to be made in an equitablemanner:
    (2)  streets or alleys,whether owned in fee or
    used by easement,,in which event such land or
    interest may be sold to the abutting owner or
    owners in proportfonto their abutting ownership,
    such division between owners to be made in an
    equitablemanner;
    (3) all types,of easementswhere the abutting
    property owner 0::owners also own the underlying
    fee simple title, in which event such land or
    interest may be sold to the abutting property
    owner or owners in proportion to their abutting
    ownership,such divisionbetween owners to be made
    in an equitablenanner;
    (4) any land or interest therein which was
    originally acquked for the purpose of streets,
    rights-of-way or easements which the political
    subdivisionchooses to trade or exchange as con-
    sideration for other land acquired for streets,
    rights-of-wayor easements,includingtransactions
    which may be partly for cash and partly by trade
    or exchange;
    (5) land owned by a political subdivision
    which it desirer;to have developed by contract
    with an independentfoundation;or
    p. 1805
    Mr. Ralph Loweufleld- Pago 5 (JM-394)
    (6) any interestin land that is conveyedby a
    political subdiv,isionto a governmental entity
    having the power of eminentdomain.
    . .   . .
    Sec. 4. Any conveyance, sale or trade made
    under the exemptl.cmsset forth in Section 2, shall
    never be for leac:than the fair market value of
    the land or inxrest being conveyed, sold, or
    traded, as detenainedby an appraisal obtainedby
    the political sabdivision,which shall be con-
    clusive of the fair market value thereof.
    V.T.C.S. art. 5421c-12 (set:
    -_ Acts 1985, 69th Leg., ch. 367, at 2667 for
    amended 52).
    Whether the city of Aarlingenand the state of Texas entered into
    a binding contractin 1968 - and the terms of such a contract,if any
    - involve complexquestionsof fact and interpretations  of the city's
    charter and ordinance. We are not equipped to answer such questions
    in the opinion process. Hbwever, the ability of the state and an
    agency of the state to enxr into a contract is not unlimited. The
    Texas Constitutionis sileat as to the length of the term for which a
    contract may be made by ,:hestate, but the state nay not enter a
    contractualrelationshipthat imposes on it an obligationfor a period
    in excess of two years. Article VIII, section 6 of the Texas
    Constitutionprovides that oo appropriationnay be made for a period
    longer than two years. Axicle III, section 49 prohibits the state
    from creating debts and pr'eventscontractingon the basis of antici-
    pated revenues. The state nay enter into an indefiniteor long-term
    binding contract involving,the expenditureof appropriatedfunds if
    payment is conditioned or. the availability of appropriated funds.
    See Attorney General Opinion MW-70 (1979). One session of the
    legislaturecannot bind subsequentsessions or mandate the continued
    existenceof TSTI or its biennial funding. The considerationfor and
    duration of a contract,if any, between the city and the state would
    be limited to the period during which the legislaturecontinues the
    operationand funding of t:reHarlingen facilityof TSTI. See City of
    Big Spring V. Board of Ccurtrol,389 S.W.2d 523 (Tex. Cx       App. -
    Austin 1965), e,       404 !3.W.2d810 (Tex. 1966) (relating to the
    validity and terns of a written contractbetween a city and the state
    whereby the city furnishes water to a hospital established and
    operatedby the state at the city).
    The Texas courts have held that numerous statutes prescribing
    procedures and restrictionson the sale and conveyance of land by
    political subdivisionsare uot applicablewhen the grantee is another
    governmental agency having the power of eminent domain over the
    property involved. Governingbodies with the power of eminent domain
    p. 1806
    Mr. Ralph Lowenfield- Page 6 (JM-394)
    do not need the cousent of en electorateto obtain property they need
    for public purposes. Political subdivisionshaving the power of
    eminent domain may avoid condemnation proceedings when they agree
    among themselvesas to the paramountpublic use of land owned by ona
    of them. See KingsvllleIndependentSchool Districtv. Crenshaw,252
    S.W.2d 102nTex. Cl". App.:- San Antonio 1943, writ ref'd) (adopting
    in full the opinion In KJ.ngsvilleIndependent School District v.
    Crenshaw,164 S.W.2d 49 (Tex. Civ. App. - San Antonio 1942, writ ref'd
    'm;       El Paso County v. Cit of El Paso, 
    357 S.W.2d 783
    (Tex. Civ.
    APP. - El                  "+%ZiZZolton
    Paso 1962, no writ  .                 v. City of Waco, 
    447 S.W.2d 718
    (Tex. Cl". App. .-Waco 1969, writ ref'd n.r.e.); Attorney
    General OpinionsH-1256 (1978);H-108 (1973);H-93 (1973).
    We conclude, however!,that TSTI does not have the power of
    eminent domain. The right of eminent domain is the inherentpower of
    the sovereign to take proylartyfor public use and welfare, provided
    adequate compensationis made. See Maberry v. Pedernales Electric
    Cooperative, Inc., 493 S.V.2d 268-.     Civ. App. - Austin 1973, writ
    ref'd n.r.e.). An aaencv o,roolitical subdivisionof the state has
    only the power of em&t      domain expressly conferred on it by the
    legislature. See Hall v. \Iilbarger County. 
    37 S.W.2d 1041
    (Tex. Civ.
    APP. - Amarill~931), aff';i,55 S.W.2d 797 (Tex. Come'n App. 1932).
    Section 135.02(c)of the Taras Education Code provides only that the
    board of TSTI "may accept or acquire by purchase"land and~facilities
    in three named counties. No statutoryprovisionof which we are aware
    grants authority to the board of TSTI to acquire property by
    condemnation.
    The Sixty-ninth Leg:tslatureamended section 2 of article
    5421c-12,V.T.C.S., to exempt from the bid proceduresand publication
    requirementsof that act "sny interest in land that is conveyedby a
    political subdivision to o governmentalentity having the power of
    eminent domain." Acts 19815,69th Leg., ch. 367, at 2668. The facts
    presentedto us indicate that none of the exemptionsin section 2 are
    applicable to the land in question. Section 4 of article 5421c-12
    still provides,however, that a conveyanceexempt from bid procedures
    and notice requirementsshall not be made for considerationthat is
    less than the fair marks% value of the land or interest being
    conveyed.
    Your questions suggezata need to comply with article 5421q,
    V.T.C.S. Section 26.001 of the Texas Parks and Wildlife Code
    (formerly V.T.C.S. art. 1;4.21q) requires notice and a hearing and
    certain findings before :Landdesignated or utilized as a "park,
    recreationarea, scientifi:area, wildlife refuge, or historic site"
    may be disposed of by a muuicipalityor other governmentalentities.
    Section 26.001 does not ap?:Lyto the property about which you inquire
    since that property has not to our knowledgebeen designatedfor any
    of those purposes. See Al:t:orneyGeneral Opinions R-108 (1973);E-93
    (1973); M-788 (1971). Chapter 26 of the Parks and Wildlife Code,
    p. 1807
    .
    Mr. Ralph Lowenfield- Page 7   (JM-394)
    entitled Protectionof Public Parks and RecreationalLands, does not
    define the term "park," bui:we do not believe the term is intendedto
    apply to the HarlingenIndustrialAir Park.
    SUMMARY
    Article 5+21c-:l2,V.T.C.S., enacted after an
    ordinanceof the city of Harlingen authorizedthe
    conveyanceof 113 acres for use as a vocational
    training school and after the conveyance of 22
    acres from that tract, limits the power of cities
    to sell land owna by cities. Subsequentto its
    original conveyance,the land was transferredto
    the state for usc by Texas State TechnicalInsti-
    tute. Whether the city and TSTI entered a binding
    contractualrelationshipprior to article 5421c-12
    and, if so, the terms of the contract, involve
    fact questions aat3interpretationsof the city's
    charter and ordj,nancesthat this agency is not
    equipped to answzc in the opinion process. TSTI
    has not bean granted the power of eminent domain.
    The property in question is not subject to the
    requirementsof section 26.001, Texas Parks and
    Wildlife Code.
    VeryItruly your4 1
    JIM    MATTOX
    AttorneyGeneral of Texas
    JACK HIGHTOWER
    First AssistantAttorneyGeneral
    MARY KELLER
    ExecutiveAssistantAttorney General
    ROBERT GRAY
    SpecialAssistantAttorneyGeneral
    RICK GILPIN
    Chairman,Opinion Committee
    Preparedby Nancy Sutton
    AssistantAttorney General
    p. 1808