Untitled Texas Attorney General Opinion ( 1975 )

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AURTIN. TEXAS 78711
May 30, 1975
The Honorable Bevington Reed Opinion No. H- 620
Commissioner, Coordinating Board
Texas College and University System Re: Applicability of the Texas
P. 0. Box 12788, Capitol Station Antiquities Code to proposed
Austin, Texas 78711 demolition of buildings by the
Ilrllas Community College.
Dear Dr. Reed:
You have requested our opinion concerning the applicability of the
Texas Antiquities Code, article 6145-9, V. T. C. S., to three structures
owned by the Dallas County Community College District. Specifically
your questions are:
(1) Is section 6 of article 6145-9 overbroad,
vague, undefinable, and without ascertainable limits
and hence unenforceable, and does it constitute the
taking of property without due process of law in
violation of the State and Federal Constitutions?
(2) Is the Dallas County Community College
District required to obtain a permit from the
Texas Antiquities Committee before demolishing
the three westernmost structures of the El Centro
College complex, Dalla,s, Texas, in view of the
undisputed fact that the present El Centro building
program was approved and begun in 1973 and that
by April 8. 1975, when said buildings were placed
on the National Register 90% of the funds allocated
for the project had been committed in contracts?
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The Honorable Bevington Reed page 2 (H-6201
(3) If a political subdivision of the State of
Texas such as the Dallas County Community College
District, complies with the requirements of Article
5421q, Texas Revised Civil Statutes, and in making
its decision to demolish certain structures finds that
there are no feasible alternatives to the removal of
said structures, and no petition for review of said
decision is made within the thirty days required by
Section 3 of said statute, does that political subdivision
nonetheless still have to obtain a demolition permit
from the Texas Antiquities Committee?
(4) Does Article 6145-9 (the Texas Antiquities
Code), and in particular its Section 6, apply to the
buildings’at hand, since said buildings have no
connection to prehistoric and historical American
Indian or aboriginal campsites, dwellings, and
habitation sites?
Your first question concerns the scope of article 6145-9, and its
constitutionality. Section 6 provides:
All other sites, objects, buildings, artifacts,
implements, and locations of historical, archeological,
scientific, or educational interest, including but
expressly not limited to, those pertaining to prehistoric
and historical American Indian or aboriginal campsites,
dwellings, and habitation sites, their artifacts and
implements of culture, as well as archeological sites
of every character that are located in, on or under the
surface of any lands bebnging to the State of Texas or
by any county, city, or political subdivision of the
state are hereby declared to be State Archeological
Landmarks and are the sole property of the State of
Texas and all such sites or items located on private lands
within the State of Texas in areas that have been desig-
nated as a “State Archeological Landmark” as hereinafter
provided, may not be taken, altered, damaged, destroyed,
p. 2742
The Honorable Bevington Reed - page 3 (H-620)
salvaged, or excavated without a permit from, or
in violation of the terms of such permit of, the
Antiquities Committee. (Emphasis added).
We need not reach the question of whether the State may take
ownership of property from its political subdivisions without providing
compensation, for your request concerns only the designation of Archeological
Landmarks and the permit reqtirement., These provisions operate independently
of the clause declaring such Landmarks “the sole property of the State of Texas. ”
A permit requirement for the construction of buildings is a common
exercise of the State’s police power. Meserole v. Board of Adjustment City of
Dallas, 172 S.W.2d 528 (Tex. Civ. App. -- Dallas 1943,no writ); City of Dallas
v. Meserole, 155 S.W.2d 1019 (Tex. Civ. App. -- Dallas 1941, writ ref. ‘d.,
W. o. m.); see Moody v. City of University Park, 278 S.W.2d 912 (Tex. Civ.
APP. -- Dxs 1955, writ ref’d n. r. e.). A state’s police power to protect
the general welfare of its citizens has consistently been held to extend to the
preservation of historic sites. Opinion of the Justices to the Senate, 128
N.E.2d 557 (Mass. 1955); City of Santa Fe v. Gamble - Skogmo, Inc., 389
P.2d 13 (N.M. 1964); City of New Orleans v. Levy, 64 So. 2d 798 (La. 1953);
Rebman v. City of Springfield, 250 N.E.2d 282 (App. Ct. Ill, 4th Dist. 1969);
C_r., Mavor and Citv Council of Baltimore v. Mano Swartz, Inc., 299 A.2d
828 (Md. 1973). Maher v. City of New Orleans, 371 F. Supp. 653 (E. D. La.
1974).
In City of Dallas v. Crownrich, 506 S.W. 2d 654 (Tex. Civ. App. --
Tyler 1974, writ ref’d. n. r. e.), the Court held:
A city such as Dallas would be entitled under its
zoning auth0rit.y to zone a particular area as a
historic district.
The Texas Supreme Court has recognized the governmental interest in the
preservation of historic sites and the application of the Antiquities Code thereto.
San Antonio Conservation Soc,iety, Inc. v. City of San Antonio, 455 S.W.2d
743 (Tex. Sup. 1970). In addition,
p. 2743
The Honorable Bevington Reed - page 4 (H-620)
The government under its police power always
has the right to enact any and all legislation that
may be reasonably necessary for the protection of
the health, safety, comfort, and welfare of the public.
Ek.parte Thomas, 174 S.W.2d 958, 960 (Tex. Sup. 1943).
Accordingly, it is our opinion that the designation of sites of historic interest
as State Archeological Landmarks and the permit requirement of the Antiquities
Code are valid exercises of the State’s police power. As such, no compensation
is necessary for,losses resulting from the operation of the Act. State v. City
of Austin, 331 S.W.2d 737 (Tex. Sup. 1960); Town of Ascarate v. Villalobos,
223 S.W.2d 945 (Tex. Sup. 1949); Ellis v. Citv of West Universitv Place, 175
S.W.2d 396 (Tex.Sup. 1943). It is therefore our opinion that the Antiquities
Code’s designation of historic sites as State Archeological Landmarks and its
permit requirement are not unconstitutional as a taking of property without
just compensation.
There might, however, be particular instances
in which decisions of the [Committee], because
of peculiar hardship and remoteness from the
legitimate purposes of the act, would be unconsti-
tutional applications of it. Opinion of the Justices
to the Senate, supraat 562.
Indeed, there may be circumstances in which a site is of such slight historic
interest and of such little utility that the denial of a permit would amount to
an unreasonable and arbitrary exercise of the Committee’s power. Whether
this is the case in this instance is a question of fact which can not be resolved
in an opinion of this office.
The second facet of your first question concerns the limits of the Act’s
description of State Archeological Landmarks. Since your request pertains
to sites of “historic interest, ” we will limit our discussion to the proper
definition of that term. While the Antiquities Code contains no definition of
“historic interest, ”
[i]t is a settled rule of statutory interpretation that
statutes that deal with the same general subject
. . . are considered as being in pari materia . . .
and [are to be] construed together. 53 Tex. Jur. 2d
Statutes, $186, p. 280, 281, citing among other
p. 2744
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The Honorable Bevlngton Reed, page 5 (H-620)
authorities, County School Trustees of Orange
County v. District Trustee.9 of Prairie View
Common School Dist. No. 8, 153 S.W.2d 434
(Tex.Sup. 1941); Dallas County v. Lockhart, 96
S.W.2d 60 (Tex. Sup. .1936); Love v. City of
Dallas, 40 S.W.2d 20 (Tex. Sup. 1931).
Article 6145, V. T. C. S., creates the Texas Historical Commission. We
believe that references to “historic interest” in the Antiquities Code should
be defined by examination of article 6145, for both provisions relate to the pre-
servation of historic sites. Section 12 of article 6145 gives the Historical Com-
mission the responsibility for marking sites significant in Texas and American
history. Section 15 authorizes the Commission to certify the worthiness of
preservation of historic sites. Section 9 designates the Commission as the
administrator of the National Historic Preservation Act of 1966, 16 U.S. C.
§ 470, et seq. Section 470a of that Act provides for a.national register of
sites significant in American history. In our view, the term “historic interest”
as contained in the Antiquities Code contemplates some governmental recog-
nition of such interest and specifically those indicia referred to in article
6145. Accordingly, it is our opinion that a site of “historic interest” under
the Antiquities Code is a site which has been designated with a Texas Historical
Marker, certified as worthy of preservation under section 15 of article 6145,
or which is listed on the National Register pursuant to 16 U.S. C. §470a. By
reference to article 6145, the term “historic interest” is given ascertainable
limits and in our view the term is therefore not impermissibly vague.
Your second question concerns the effect of contracts entered prior to the
inclusion of these buildings on the National Register. Section 6 of the Anti-
quities Code prohibits the destruction of a State Archeological Landmark
without a permit from the Antiquities Committee. The buildings became
Landmarks on April 8, 1975, when they were listed on the National Register.
Accordingly, they may not be destroyed without a permit. See, Attorney
General Opinion H-250 (1974). Whether the denial of a permTin this instance
would unconstitutionally impair these obligations would depend on factual
matters not now before us.
Your third question concerns whether a political subdivision must obtain a
permit from the Antiquities Committee notwithstanding its prior compliance
with article 5421q, V. T. C. S. In our opinion the two statutory provisions
operate independently of one another. Article 5421q provides for a public hearing
prior to the taking or use of any public land designated as a park, recreation
p. 2745
The Honorable Bevington Reed, page 6 (H-620)
area, scientific area, wildlife refuge, or historic site, presumably to
allow local residents to participate in the decision. The Antiquities Code
is an exercise of the police power of the State to protect the general welfare
of the entire State by preserving historic sites. Neither provision recog-
nizes the other as superior, therefore both statutory procedures must be
utilized.
Your fourth question concerns the applicability of the Antiquities Code
to sites other than those connected to “prehistoric and historical Am,erican
Indian or aboriginal campsites, dwellings, and habitation sites. ” Section 6
of the Antiquities Code provides a clear answer to this question; its applica-
tion is “expressly not limited to” these sites.
SUMMARY
The Antiquities Code’s designation of State Archeological
Landmarks and its requirement of a permit prior to their
destruction is a valid exercise of the State’s police power and
no compensation need be made for losses incident thereto. In
a particular instance a site may be of such slight historic
interest and little utility that a denial of a permit would con-
stitute an unreasonable and arbitrary exercise of the Committee’s
power. Whether this is the case in this instance involves queetiona
of fact upon which we cannot rule.
Sites of “historic interest” as contained in the Antiquities
Code are those bearing a Texas Historical Marker, those
certified by the Historical Commission as worthy of preser-
vation, and those included on the National Register. Accordingly,
the term “historic interest” is not ‘imp elmi‘ssibly vague.
The Dallas Community College District must obtain a permit
from the Antiquities Committee for the demolition of the three
p. 2746
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The Honorable Bevington Reed, page 7 (H-620)
19th Century bui,ldings involved, notwithstanding the
existence of contracts for their destruction. Whether
refusal of a permit would unconstitutionally impair
the obligations of contracts would depend on factual
matters not before US.
The procedures of article 5421g, V. T. C. S., and
those of the Antiquities Code are independent; both
statutes must be satisfied.
The application of the Antiquities Code is not
limited to prehistoric and historical American Indian
or aboriginal campsites, dwellings, and habitation
sites.
Very truly yours.
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
Opinion Committee
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