Untitled Texas Attorney General Opinion ( 1972 )

Dr. J. W. Edgar Opinion No. M-1047
Commissioner of Education
Texas Education Agency Re: Does an independent school
201 East 11th Street district have the authority
Austin, Texas to lease school property
for 20 years to be operated
Dear Dr. Edgar: as a neighborhood center?
You have requested an opinion regarding the above stated
question. We quote from your letter as follows:
"Ella Austin Community Center, described as a
local non-profit organization within the San Antonio
Independent School District, requested the Board of
Trustees of such district (1) for use of a district
owned school facility (building and grounds) not cur-
rently needed for school purposes, (2) that the district
make application to the Department of Housing and Urban
Development (H.U.D.) for a grant ($1,779,667.51) pur-
suant to Title 42, Section 3103, U,S.C.A. to convert
and remodel the facility: and (3) that thereafter the
school district operate the property through Ella
Austin Community Center as a neighborhood multi-purpose
center.
"On June 25, 1971, the district submitted an
application as requested in (2) above. It was re-
jected by the regional office of H.U.D. because allegedly
it failed to provide for an outright minimum 20-year
lease by the school district of such desired property
to the Ella Austin Community Center. See Title 42,
Section 3103(c) U.S.C.A.
-5115-
Dr. J. w. Edgar, Page 2 (M-1047)
"The proposed neighborhood multi-purpose center
was planned to include adult evening education, pre-
school children preparation (Operation Headstart),
day-care facili~ties, recreation, mental health and
hygiene facilities, and a dispensary.
"The Board of Trustees of the San Antonio In-
dependent School District now requests that I submit
to the Office of Attorney General for its consideration
and opinion the following question:
"Does an independent school district have
authority to lease for a term of 20 years
a district-owned elementary school and
site, not presently used or needed for
school purposes, to a non-profit organiza-
tion, which property pursuant to and in line
with purposes of Title 42, Sections 3101-3108,
U.S.C.A. would be operated as a neighborhood
multi-purpose center?"
This request presents the problem of whether the twenty-year
lease arrangement of the property in question will impede or
interfere with the operation of the school district.
Our Texas courts have long recognized that the determination
of the use of school property is vested in the school trustees and
that such determination of use is subject to the discretion of the
trustees. Bozeman v, Morrow. 34 S.W.2d 654 (Tex.Civ.App. 1931,
no writ); Trustees of Independent School Dist. of Cleburne v.
Johnson County Democratic Executive Comm., 122 Tex. 48. 52 S.W.2d
71 (1932). This discretion, however, is limited by a determina-
tion that use of school property for non-school purposes will not
interfere with the operation of the school property for school
purposes. Royse Independent School DiG. v. Reinhardt, 159 S.W.
1010 (Tex.Civ.App., 1913, error ref.,); also, Presley v. Vernon
Parish School 6d.., 19 La..App. 217, 139 So, 692 (1932).
-5116-
. .
-. .
Dr. J. W. Edgar, page 3 (M-1047)
This office has previously held that the trustees of a school
district may lease proper,ty in their discretion for non-school
purposes, provided such leasing does not interfere with or impede
the operation of the school district's purpose, that is, operating
a public school. Attorney General's Opi.nions Nos. O-5354 (1943)
and WW-1364 (1962); a.nd 94 A.L.R. 2d 1280, Sec. 6, and cited
authorities.
In the case a,thand, you state that the lease must be an
outright lease for t.wenty years in order to satisfy the require-
ments of H.U.D, pursuant to Section 3103 of Title 42, U.S.C.A.
It should be no,ted that Secti,on 3103 of Title 42 does place a
minimum of 20 years use of the property for the grant purposes,
and provides further that the use cannot be changed unless the
Secretary of H.U.D. a.grees to a change consistent with statutory
guidel,ines,
Our opi,nion is that a minimum twenty-year lease by the present
trustees of the property in question, without any discretion being
left in the trustees of the future for possible needed use for
school purposes, would exceed the recognized discretionary l.easing
authority of the sch,ool, as discussed in the above cited authori-
ties, The lease would not be deemed a temporary, casual, or
incidental use and would amount to an impermissible diversion of
governmental property from its intended use for school purposes.
See 94 A.L.R.2d 12'78-12'79,Section 5, and also Madachv v, Huntington
Horse Show Assn., 192 S.E. 128 (W.Va.Sup. 1937). and 111 A.L.R. 1046,
1049, holding a twenty year lease illegal and under which a
provision for termination gave the board of education power to
repossess the property in approximately three and one-half years.
The court therein said:
"A board of education has no authority so to
divest itself for such a long period of the control
of public property which has been placed in its
keeping, The substantial terms of nearly three
and one-half years transcends t.he idea of mere
temporary usage of property pending its being
subjected to its ultimate and permanent public
use."
-5117-
. -
Dr. J. W. Edgar, page 4 (M-1047)
SUMMARY
An independent school district does
not have the authority to give an outright
twenty-year lease of school property for use
as a neighborhood center, reserving to the
school board no discretion to terminate such
lease in the event the school should have need
of the property in the future.
~,T
Yours very truly,
Prepared by James C. McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Austin Bray
Jim Swearingen
Charles Lind
Gordon Cass
SAM MCDANIEL
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLA WHITE
First Assistant
-5118-