Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENER.~I. . STATE OF TEXAS

JOHN CORNYN

November 26,2002

The Honorable Russell W. Malm Opinion No. JC-0582
Midland County Attorney
200 West Wall Street, Suite 104 Re: Whether a lease agreement between
Midland, Texas 79701 Midland County and a museum violates
limitations on the use of public funds in article
III, section 52 and restrictions on public debt in
article XI, section 7 of the Texas Constitution,
and related questions (RQ-0543-JC)

Dear Mr. Malm:

You ask a number of questions about the validity of a lease agreement between Midland
County (the “County”) and the Museum of the Southwest (the “Museum”).’ We conclude that the
County had the authority to acquire property for the purposes of operating a museum and was
authorized to enter into the lease agreement with the Museum under chapter 3 19 of the Local
Government Code and its statutory predecessor, former article 2372d of the Revised Civil Statutes.
The commissioners court that entered into the lease agreement could have reasonably determined
that the County’s and Museum’s respective obligations under the lease agreement comported with
article III, section 52 of the Texas Constitution, which prohibits the expenditure of public funds for
private purposes. On the other hand, the lease agreement violates the restrictions on public debt in
article XI, section 7 of the Texas Constitution to the extent the agreement obligates the County to
pay for the Museum’s utilities and other expenses and to insure and maintain the building and
grounds over a multi-year period without giving the County the right to terminate at the end of each
year or to elect on a yearly basis whether or not to appropriate funds to satisfy its obligations under
the lease. Because the terms of the lease agreement that obligate the County to pay for the
Museum’s utilities and other expenses and to insure and maintain the building and grounds are
severable from the agreement’s other terms, however, the remainder of the lease agreement is not
void.

‘See Letter from Honorable Russell W. Mahn, Midland County Attorney, to Honorable John Cornyn, Texas
Attorney General (May 7, 2002) (on file with Opinion Committee) [hereinafter Request Letter]; Museum of the
Southwest, The Juliette and Fred Turner, Jr. Memorial Gallery information page (attachment to Request Letter)
[hereinafter Turner Gallery]; Amended and Restated Lease Agreement (May 8, 1989) (attachment to Request Letter)
[hereinafter Amended and Restated Lease Agreement]; Warranty Deed (July 10, 1968) (attachment to Request Letter)
[hereinafter Warranty Deed dated July 10, 19681; Warranty Deed (July 9, 1968) (attachment to Request Letter)
[hereinafter Warranty Deed dated July 9, 19681.
The Honorable Russell W. Malm - Page 2 (JC-0582)

You inform us that in 1968 Midland County “accepted a deed of real estate from the Museum
. . . for the sole purpose of leasing the property back to the Museum for the operation of an art
museum.” Request Letter, supru note 1, at 1. The property consisted of the former Turner estate,
which included the Turner mansion and grounds.2 The original lease was for a period of ten years.
See Request Letter, supra note 1, at 1. In 1978 the County and the Museum executed a renewal of
the lease agreement for a ten-year term. See id. at 2. In 1985 the parties again renewed the lease
agreement and provided that the lease would run until 1988 and, if the Museum completed an
addition before a date certain in 1987, the lease would extend for fifty years from 1968. See id. In
1989 the parties executed an Amended and Restated Lease Agreement, which provided that the lease
would be for a term of fifty years commencing on September 1,1968. See id. Except where noted
otherwise, this opinion will refer to the 1989 lease agreement, which is the lease agreement currently
in effect.

The lease agreement obligates the County to insure the buildings and structures located on
the premises; to maintain the exterior structural condition of the buildings, including the foundations,
walls, roofs, and doors; and to maintain “the grounds and landscaping at the leased premises in
accordance with the standards and dignity befitting a museum and local ordinances as they may
apply.” Amended and Restated Lease Agreement, supra note l,TT 3,5. The County is also required
to bear the cost of utilities (except telephone) and to service and maintain the heating, air
conditioning, and plumbing systems. See id. 16. You state that in fiscal year 2000 the County paid
approximately $64,000 to meet its obligations under the lease. See Request Letter, supra note 1,
at 2. The lease agreement does not require the Museum to make lease payments other than an initial
$1 .OOpayment, but it does require the Museum to operate the leased premises as a museum, to
maintain the interior of the buildings, and to pay for the cost of telephone services. See Amended
and Restated Lease Agreement, supra note 1, TiT[1,4.

We understand that the Museum is a private, non-profit corporation governed by a board of
trustees. In addition to leasing and managing the property at issue, the Museum has constructed a.
planetarium on adjacent land owned by the City of Midland and a children’s museum on adjacent
land owned by the Museum. See Museum Brief, supra note 2, at 3. The principal building on the
property at issue, the Juliette and Fred Turner Jr. Memorial Gallery, contains permanent exhibits of
American art, with an emphasis on the Southwest, as well as temporary exhibits. See Turner Gallery,
supra note 1.

You ask a number of questions about the lease agreement’s validity under the Texas
Constitution, such as whether the lease agreement is consistent with article III, section 52, which
limits the expenditure of public funds, and article XI, section 7, which limits a county’s authority
to incur debt. Given counties’ limited jurisdiction, however, we need not reach these constitutional
issues if the County lacked an affirmative grant of express or implied authority to enter into the lease
agreement. See Tex. Att’y Gen. Op. Nos. JC-0439 (2001) at 2 (“A county commissioners court may

2See Brief, Museum of the Southwest, from Leonard B. Smith, Attorney at Law, to Susan Denmon Gusky, Chair,
Opinion Committee, Office of the Attorney General (July 3, 2002) (on file with Opinion Committee) [hereinafter
Museum BriefJ.
The Honorable Russell W. Malm - Page 3 (JC-0582)

exercise only those powers that the state constitution and statutes confer upon it, either explicitly or
implicitly.“); JC-0171 (2000) at 1 (“It is well settled that the authority of the commissioners court
to contract [o]n behalf of the county is limited to that conferred either expressly or by necessary
implication by the constitution and laws of this state.“). Therefore, before addressing your
constitutional questions, we address your questions regarding the County’s statutory authority to
enter into the lease agreement.

You ask whether a county “has legal authority to acquire property for the purposes of
operating an art museum or contracting with a private organization to do so.” Request Letter, supra
note 1, at 5. We conclude that a county has the legal authority to do so. A county is generally
authorized by section 270.00 1 of the Local Government Code to acquire real property by deed. See
TEX. LOC. GOV’T CODEANN. 9 270.001 (Vernon 1999) (“A deed, grant, or conveyance that is made,
is acknowledged or proven, and is recorded as other deeds of conveyance to a county, to the courts
or commissioners of a county, or to another person for the use and benefit of a county vests in the
county the right, title, interest, and estate that the grantor had in the property at the time the
instrument was executed and that the grantor intended to convey.“); TEX. REV. CIV. STAT.ANN. art.
1576 (Vernon 1962 & Supp. 2002) (statutory predecessor to Local Government Code section
270.001) (repealed). As discussed further below, a county is specifically authorized to acquire
property for museum purposes by chapter 3 19 of the Local Government Code.

Chapter 3 19 of the Local Government Code authorizes a commissioners court to establish
and maintain a museum. Section 3 19.001 authorizes the commissioners court of a county to
“provide for annual exhibits of horticultural, agricultural, livestock, mineral, and other products that
are of interest to the community.” TEX. Lot. GOV’T CODEANN. 6 3 19.001 (Vernon 1999); see also
TEX. GOV’TCODE ANN. $3 1473.021-.024 (Vernon 2000) (county authority to purchase or construct
building to be used for coliseum, auditorium, or annual exhibit of livestock or agricultural,
horticultural, or mineral products of the county; to issue bonds to finance such purchase or
construction; and to impose a tax to pay the bonds). Pursuant to section 3 19.002, “[t]o aid in the
exhibition of products listed in Section 3 19.001,” a commissioners court “may establish and
maintain a museum, building, or other improvement in the county or at any other location in the
United States at which a fair or exposition is being held.” TEX. Lot. GOV’T CODEANN. 6 3 19.002
(Vernon 1999) (emphasis added).

Opinions of this office addressing sections 3 19.001 and 3 19.002’s statutory predecessor
construed the grant of authority in what is now section 3 19.002 broadly to permit a county to
establish and maintain a museum separate and apart from “annual exhibits of horticultural,
agricultural, livestock, mineral, and other products” now provided for in section 3 19.001.
Id 0 3 19.00 1; see, e.g., Tex. Att’y Gen. Op. Nos. M-l 113 (1972) at 2 (concluding that former article
2372d authorized county to payportionof salary ofmanager of a pioneer museum); WW-371(1958)
at 3 (concluding that authority in former article 2372d to provide exhibits “is then broadened to
include the additional powers pertaining to museums”); see also Tex. Att’y Gen. Op. No. C-656
(1966) at 2 (concluding that a “museum” is “a repository or collection of natural, scientific, or
literary curiosities or objects of interest, or of works of art”). The language of sections 3 19.001 and
3 19.002 derives from former article 2372d of the Revised Civil Statutes, which was repealed and
The Honorable Russell W. Malm - Page 4 (JC-0582)

codified in chapter 3 19 in 1987. See Act of May 1, 1987,7Oth Leg., R.S., ch. 149, 59 1 (adopting
Local Government Code), 49 (repealing former article 2372d), 1987 Tex. Gen. Laws 707,707,1306.

This broad construction of the former law dates from 1958, see Tex. Att’y Gen. Op. No.
WW-371 (1958) at 3, and there is no indication that the legislature sought to modify it in adopting
the recodification of article 2372d in the Local Government Code. Former article 2372d authorized
counties to “provide for annual exhibits of horticultural and agricultural products, livestock and
mineral products, and such other products as are of interest to the community.” Act of Nov. 9,1934,
43d Leg., 4th C.S., ch. 20, 5 1, 1934 Tex. Gen. Laws 52, 52; Act of Oct. 27, 1936,44th Leg., 3d
C.S., ch. 507, 8 1, 1936 Tex. Gen. Laws 2103, 2103. It also provided that “[i]n connection
therewith, such counties may also establish and maintain museums.” Act of Nov. 9,1934,§ 1,1934
Tex. Gen. Laws at 52. Although we believe that this language could have been construed more
narrowly to limit counties to establishing museums only in connection with “annual exhibits of
horticultural and agricultural products, livestock and mineral products, and such other products,” the
broader reading of the statute was supported by former article 2372d-3, which authorized a .
commissioners court to permit the use of article 23 72d improvements “for any useful public purpose
which, in the opinion of the Court, will be of benefit to the county and its citizens.” Act of Mar. 29,
195 1,52d Leg., R.S., ch. 49,§ 2,195 1 Tex. Gen. Laws 78,78. Likewise, section 3 19.004 authorizes
a commissioners court to permit the use of a building or improvement “for any public purpose the
court determines to be of benefit to the county and its residents.” TEX. Lot. GOV’T CODE ANN.
8 319.004(d) (V emon 1999 & Supp. 2002). Accordingly, we adhere to the longstanding
interpretation.

Chapter 3 19 also authorizes a commissioners court to lease museum buildings and to contract
for their management. Section 3 19.004 authorizes a commissioners court to “contract for the
complete management of, and for the conducting, maintenance, use, and operation of, buildings,
improvements, and exhibits authorized by this chapter.” Id. 0 3 19.004(a). The commissioners court
“may lease the buildings, improvements, or exhibits,” id. 0 3 19.004(b), and “may permit the use of
a building, improvement, or exhibit for any public purpose the court determines to be of benefit to
the county and its residents,” id. $3 19.004(d). A contract or lease made under this section must be
evidenced by an order of the commissioners court and entered in the minutes of the court. See id.
8 3 19.004(c).

The lease agreement expressly provides that the leased premises shall be used for the
purposes of

maintaining a public museum . . . in accordance with the provisions
ofArticles 2372d and 2372d-3, Vernon’s Annotated Civil Statutes (or
any successor provision or provisions thereto), for the display of the
products there specified and for such other displays, exhibits and
endeavors as are of educational, cultural or intellectual interest to the
citizens of Midland County, Texas.
The Honorable Russell W. Malm - Page 5 (JC-0582)

Amended and Restated Lease Agreement, supra note 1, 71. The original lease agreement contained
a similar term. See Lease Agreement 11 (Sept. 5, 1968) (attachment to Request Letter, supra note
1). Although the 1989 lease agreement, like the original 1968 lease agreement, refers to articles
2372d and 2372d-3, those provisions were repealed and codified in chapter 3 19 of the Local
Government Code in 1987. Chapter 3 19 authorized the County to enter into the 1989 lease
agreement. We assume that the lease agreement was evidenced by an order of the commissioners
court and entered in the minutes of the court as required by section 3 19.004(c) of the Local
Government Code.

With regard to the commissioners court’s statutory authority to enter into the lease
agreement, you also ask whether the lease would “be void or voidable if it was entered into without
complying with the requirements of Chapter 263 of the Local Government Code.” Request Letter,
supra note 1, at 6. Chapter 263 provides competitive procedures that a county generally must follow
to sell or lease county property. See, e.g., TEX. LOC. GOV’T CODEANN. $§ 263.001 (Vernon 1999)
(sale or lease of county real property by public auction); 263.007 (Vernon 1999 & Supp. 2002) (sale
or lease of county real property through sealed-bid or sealed-proposal procedure). This office has
concluded, however, that the requirements of chapter 263 do not apply to a contract entered into
under section 319.004 of the Local Government Code. See Tex. Att’y Gen. LO-98-057, at 2-3
(“[Wlhen another statute authorizes the county to lease a specific kind of real property, the
provisions of chapter 263 do not apply. . . . The county is not required to competitively bid a contract
entered into pursuant to section 3 19.004.“). Accordingly, a lease entered into under section 3 19.004
of the Local Government Code (or its predecessor) is not void or voidable if it was entered into
without complying with chapter 263.

Given our conclusion that chapter 3 19 authorized the County to acquire the property for
museum purposes and to enter into the lease agreement, we do not address your question about the
County’s authority under chapter 33 1 of the Local Government Code or your question about the
effect of the 1968 conveyance of the property to the County if the County did not have authority to
acquire the property. See Request Letter, supra note 1, at 4. We instead turn to your questions about
the constitutional limitations on county authority.

You ask whether County expenditures for museum maintenance and other museum expenses
pursuant to the lease agreement violate article III, section 52. See Request Letter, supra note 1,
at 4. You are also concerned that the lease agreement may violate this provision because the lease
agreement does not require the Museum to make lease payments to the County beyond the initial
payment of $1 .OO. See id. We conclude that the commissioners court that entered into the lease
agreement could have reasonably determined that the County and Museum’s respective obligations
under the lease agreement comported with article III, section 52.

With respect to the County’s payments under the lease agreement, article III, section 52 bars
a transfer of county funds to a private entity unless the transfer serves a public purpose of the county
and the transfer is subject to adequate controls, contractual or otherwise, to ensure that the public
purpose is accomplished. See Tex. Att’y Gen. Op. No. JC-0439 (2001) at 1. Article III, section 52
of the Constitution precludes the use of public funds for private purposes by counties, cities, and
The Honorable Russell W. Malm - Page 6 (JC-0582)

other political subdivisions. See TEX. CONST.art. III, 8 52 (“[T]he Legislature shall have no power
to authorize any county, city, town or other political corporation or subdivision of the State to lend
its credit or to grant public money or thing of value in aid of, or to any individual, association or
corporation whatsoever, or to become a stockholder in such corporation, association or company.“).
Article III, section 5 1 contains a similar provision applicable to the legislature. See id. 8 5 1. Article
III, section 52 precludes counties from making unconditional gifts or donations to private
entities-expenditures which, by definition, lack sufficient controls to ensure that an authorized
public purpose is achieved. See, e.g., Kordus v. City of Garland, 561 S.W.2d 260,261 & n. 1 (Tex.
Civ. App.-Tyler 1978, writ ref d n.r.e.) (holding that taxpayer had standing to bring action against
city to enjoin it from making donations to private corporation in violation of article III, section 52)
(citing Tex. Att’y Gen. Op. No. H-397 (1974)); Tex. Att’y Gen. Op. No. JC-0113 (1999) at 2-3
(citing authority). In making an expenditure of county funds that benefits a private person or entity,
however, a commissioners court will avoid violating article III, section 52 if it (i) determines in good
faith that the expenditure serves a public purpose and (ii) places sufficient controls on the
transaction, contractual or otherwise, to ensure that the public purpose is carried out. See, e.g., Tex.
Att’y Gen. Op. Nos. JC-0439 (2001) at 1, JC-0113 (1999) at 2, DM-256 (1993) at 2-3.

In 1989 when the County entered into the Amended and Restated Lease Agreement, a prior
opinion of this office supported a commissioners court’s determination that expending county funds
to benefit a museum would serve a public purpose. See Tex. Att’y Gen. Op. No. MW-423 (1982)
at 2 (concluding that Texas Historical Commission museum grants served a public purpose for
purposes of article III, sections 51 and 52 because support of museums helps to educate the public
about such subjects as history, economics, anthropology, and the fine arts). Furthermore, although
the lease agreement between the County and the Museum could have given the County greater
control over the Museum’s performance of its contractual obligations, the lease agreement does
require the Museum to operate the County’s property as a museum. The lease agreement would
appear to place sufficient controls on the transaction to ensure that the public purpose-the operation
of amuseum-is carried out. See Tex. Atty. Gen. Op. JC-0439 (2001) at 2 (“A contract that imposes
on the nonprofit organization an obligation to perform a function that benefits the public may
provide adequate control.“) (citing Key v. Comm ‘rs Ct. of Marion County, 727 S.W.2d 667, 669
(Tex. App.-Texarkana 1987, no writ) (per curiam)).

You also assert that a lease of public property “for rental or lease payments at less than fair
market value . . . would amount to [a] . . . gift or grant of public money” in violation of article III,
section 52. Request Letter, supra note 1, at 4. Although courts and this office have concluded that
the lease of public property to a private entity does not violate article III, section 52 where the
transaction serves a public purpose and where an adequate rental is paid, see Dodson v. Marshall,
118 S.W.2d 621,624 (Tex. Civ. App.-Waco 1938, writ dism’d); Tex. Atty. Gen. Op. Nos. JC-0179
(2002) at 4, H-445 (1974) at 4, H- 109 (1973) at 5, article III, section 52 does not necessarily require
a county to lease property for fair market value if the lease serves a public purpose. See Tex. Att’y
Gen. Op. No. JM-1156 (1990) at 3 (article III, section 5 1 does not prohibit state from leasing space
for child care facilities at a rate lower than fair market value if lease serves a public purpose). Again,
chapter 263 of the Local Government Code, which generally requires a county to lease property
pursuant to competitive procedures, does not apply here.
The Honorable Russell W. Malm - Page 7 (JC-0582)

Whether the consideration a public entity receives for use of its property is “adequate” is a
determination for the entity’s governmental body to make in the first instance and is a determination
to which a court will defer. In City of Fort Worth v. Groves, for example, the court expressly
deferred to the commissioners court’s factual determination that leasing the county convention center
to the City of Fort Worth under the statutory predecessor to section 3 19.004 of the Local
Government Code for $1 .OOper year and the city’s agreement to operate and maintain the convention
center for the benefit of the public provided adequate consideration. See City of Fort Worth v.
Groves, 746 S.W.2d 907,916-17 (Tex. App.-Forth Worth 1988, no writ); see also id. at 916 (“In
the absence of a showing of fraud or bad faith, it is not for the courts to declare a document
conforming to the language of a lease having terms reasonable to a lease, to be something else.“).
Here, while the Museum does not pay the County monetary consideration to use the leased property,
the Museum does operate the County’s property as a museum and pay for the upkeep of the interior
of the buildings. The commissioners court that entered into the 1989 lease agreement could have
reasonably determined that the lease agreement required the Museum to provide adequate
consideration for use of the County’s property. See id. at 9 16.

Finally, we address whether the lease agreement creates a county debt in violation of article
XI, section 7 of the Texas Constitution. Under article XI, section 7, a county may not incur debt for
any purpose “in any manner” unless the county simultaneously creates the debt and provides
for levying and collecting “a sufficient tax to pay the interest thereon-and provide at least two per
cent . . . as a sinking fund.” TEX. CONST. art. XI, 8 7. Article XI, section 5 contains a similar
limitation that applies only to cities. See id. art. XI, 8 5 (prohibiting municipality from creating
“debt”). For purposes of these constitutional provisions, “debt” is “any pecuniary obligation
imposed by contract, except such as will, at the date of the contract, within the lawful and reasonable
contemplation of the parties, be satisfied out of current revenues for the year, or out of some fund
then within the imrnediate control of the city [or county].” City of Bonham v. S. W. Sanitation, Inc.,
871 S.W.2d 765,768 (Tex. App.-Texarkana 1994, writ denied). A contract that runs for more than
a year but that gives the city or county a right to terminate it at the end of each year is a commitment
of current revenues only and is not a debt. See id.

We conclude that the lease agreement violates article XI, section 7 to the extent it obligates
the County to pay for the Museum’s utilities and other expenses and to insure and maintain the
buildings and grounds over a multi-year period. The commissioners court that entered into the lease
agreement could not have contemplated that the County could satisfy its unspecified, multi-year
obligation out of county revenues on hand in 1989. We gather that the County did not provide for
levying and collecting taxes to pay the interest and to create a sinking fund.3 Furthermore, the lease

‘Article XI, section 7 imposes conditions on the creation of debt; it does not authorize creation of debt. See Tex.
Att’y Gen. Op. Nos. JC-0139 (1999) at 2; DM-467 (1998) at 7 n. 18 (“Article XI, section 7 [of the Texas Constitution]
limits the authority of a county to incur debt; it does not affirmatively authorize counties to levy taxes for any purpose.
. . . Therefore, before providing for a levy and sinking fund in order to comply with article XI, section 7, a county should
first verify that it is authorized to levy the tax.“) (citing A4itcheZZ County v. City Nat7 Bank, 43 S.W. 880, 883 (Tex.
1898) (Texas Constitution article XI, section 7 “contains no grant of authority to levy a tax”)). It does not appear that
a county would be authorized to levy a tax to support its obligations under a lease entered into pursuant to chapter 3 19
(continued...)
The Honorable Russell W. Malm - Page 8 (JC-0582)

agreement does not give the county a right to terminate at the end of each year or to elect on a yearly
basis whether or not to appropriate funds to satisfy its obligations under the lease.

The Museum asserts that the County’s obligations under the lease do not create a debt within
the meaning of article XI, section 7 because the County owns the premises and is obligated to
operate and maintain its property separate and apart from the lease agreement and because the lease
agreement does not provide for fixed or regular payments. We disagree.

First, the Museum asserts that the County’s obligation to maintain the Museum buildings and
grounds and to pay for its utilities and property insurance is no different than the County’s obligation
to maintain and provide utilities for other county-owned facilities such as the county courthouse or
the county libraiy4 The crucial difference, however, is that the County has not contractually
obligated itself to another entity to maintain those county buildings or to provide utilities or property
insurance for them. The lease agreement transforms the County’s general discretionary duty to
maintain its property as it sees fit into a “pecuniary obligation imposed by contract.” City of
Bonham, 871 S.W.2d at 768. In addition, a contract need not provide for fixed or regular payments
in order to create debt for purposes of article XI, section 7. See, e.g., Brown v. Jefferson County, 406
S.W.2d 185,188 (Tex. 1966) (“an indemnity agreement is a ‘debt’ within the constitutional sense,
and. . . , as a corollary thereto, provision must be made for the payment of any interest that may
accrue thereon and for the retirement of the obligation”); Tex. Atty. Gen. Op. No. DM-467 (1998)
at 5 (“a county’s agreement to indemnify a third party for damages arising from acts of the third party
creates a debt within the meaning of article XI, section 7”). Indeed, both a court and this office have
specifically concluded that a contract that obligates a city or county to expend unfixed sums to
maintain property or operate facilities creates debt in the constitutional sense. See, e.g., City of
Wichita Falls v. Kemp Pub. Library Bd. of Trs., 593 S.W.2d 834,837 (Tex. Civ. App.-Forth Worth
1980, writ ref d n.r.e.) (obligation that city undertook to run library when it accepted the building
from a private party created a debt within the meaning of article XI, section 5); Tex. Att’y Gen. Op.
No. WW-1049 (196 1) at 2-3 (county agreement with the United States Soil Conservation Service
and a soil conservation district to budget annually sufficient funds to maintain flood control projects
would create a debt within the meaning of article XI, section 7).

In support of its position that these lease terms do not violate article XI, section 7, the
Museum also contends that the County is obligated to maintain the Turner mansion and grounds by
the warranty deed pursuant to which the Museum conveyed the premises to the County in 1968. In

3(...continued)
of the Local Government Code. See TEX. Lot. GOV’T CODEANN. 8 3 19.005 (Vernon 1999 & Supp. 2002) (use of net
revenue from use of building or improvement authorized by chapter 3 19); TEX. GOV’T CODEANN. $0 1473.02 l-.024
(Vernon 2000) (county authority to purchase or construct building to be used for coliseum, auditorium, or annual exhibit
of livestock or agricultural, horticultural, or mineral products of the county; to issue bonds to finance such purchase or
construction; and to impose a tax to pay the bonds).

4See Supplemental Brief, Museum of the Southwest, from Leonard B. Smith, Attorney at Law, to Susan Denmon
Gusky, Chair, Opinion Committee, Office of the Attorney General (Nov. 4,2002) (on file with Opinion Committee)
[hereinafter Museum Supplemental BriefJ.
The Honorable Russell W. Malm - Page 9 (JC-0582)

July 1968, the co-executors of the estates of Fred and Juliette Turner conveyed the Turner mansion
and grounds to the Museum, which agreed “to maintain and care for said premises consistent with
their present dignity and appearance, normal wear and tear excepted.” Warranty Deed dated July 9,
1968, supra note 1, at 2. The next day, the Museum conveyed the Turner mansion and grounds to
the County, “subject to all the terms, provisions, covenants and conditions set forth” in the first
warranty deed. Warranty Deed dated July 10,1968, supra note 1, at 1. We have not been asked by
the County to address the constitutionality of the warranty deed. We do note, however, that the duty
to maintain the premises under the warranty deed is much more limited than the obligations the
County has undertaken under the lease. Thus, assuming that the County did agree pursuant to the
warranty deed “to maintain and care for said premises consistent with their present dignity and
appearance, normal wear and tear excepted” and that that agreement is constitutional, the terms of
the warranty deed would not support the more expansive obligations the County has undertaken
under the lease. Furthermore, the case cited by the Museum, Harris County v. Jones, 219 S.W.2d
737 (Tex. Civ. App.-Galveston 1949, writ ref d n.r.e.), upheld a county’s agreement in a deed
conveying 100 acres to the county to reconvey 10 acres to the grantors at a certain price, and
concluded that such a reconveyance was not subject to a statute requiring counties to sell real
property at public auction. That case does not address the interplay of a county’s agreement in a
deed to maintain property and article XI, section 7.

Although we conclude that the terms of the lease agreement that obligate the County to pay
for maintenance ofbuildings and grounds and other museum expenses over a fifty-year term violate
article XI, section 7 and are not enforceable, this does not necessarily mean that the remainder of the
lease agreement is without effect. As a general rule, where part of the consideration for an
agreement is illegal, the entire agreement is void if the contract is entire and indivisible. See
Montgomery v. Browder, 930 S.W.2d 772, 778 (Tex. App.-Amarillo 1996, writ denied). The
doctrine of severability is an exception that applies in circumstances in which the original
consideration for the contract is legal, but incidental promises within the contract are found to be
illegal. See id. In such a case, the court may sever the invalid provision and uphold the valid
portion, provided the invalid provision does not constitute the main or essential purpose of the
agreement. See Williams v. Williams, 569 S.W.2d 867, 871 (Tex. 1978); Rogers v. Wolfson, 763
S.W.2d 922,925 (Tex. App.-Dallas 1989, writ denied). We have found no authority suggesting that
the doctrine of severability may not be applied when a contract term is invalid under article XI,
section 7. A 1982 opinion of this office applies the doctrine to a contract term creating a debt in
violation of article III, section 49, which prohibits the state from creating a debt. See Tex. Att’y Gen.
Op. No. MW-475 (1982) at 4 (“an invalid indemnity clause in an otherwise enforceable contract will
not ordinarily invalidate the remainder of the contract”) (citing Williams v. Williams, 569 S.W.2d
867 (Tex. 1978)).

We believe that the unconstitutional terms are severable from the lease agreement and that
the remainder of the lease agreement is effective. Here, the essential consideration or purpose of the
lease agreement is the County’s agreement to lease the Turner estate to the Museum to use it as a
museum and the Museum’s agreement to operate the estate for that purpose. As we have concluded,
the County’s agreement to lease its property to the Museum for this purpose is legal. See discussion,
supra pp. 3-5. In our view, the County’s agreement to pay certain limited expenses associated with
The Honorable Russell W. Malm - Page 10 (JC-0582)

the Museum is merely a promise incidental to the lease agreement’s essential purpose. Furthermore,
the lease agreement expressly provides that “[i]f any clause or provision hereof is invalid,
unenforceable or illegal under present or future laws effective during the life of this lease, it is the
intention of the parties that the remainder of this agreement shall not be affected thereby but shall
continue in full force.” Amended and Restated Lease Agreement, supra note 1, 7 16.

The Museum has submitted a supplemental brief that takes the view that the essential feature
of the lease agreement is the Museum’s promise to manage, conduct, and maintain a public museum
and that the County’s financial obligations are merely incidental to the lease agreement. See
Museum Supplemental Brief, supra note 4, at 2. On the other hand, the County asserts in its
supplemental brief that “the financial provisions are a large part of the consideration provided by
Midland County. They are directly tied to the remainder of the consideration supplied by Midland
County, which is allowing the Museum to use the building. The two provisions are inseparable. The
financial provisions are not incidental promises, but a material part of the lease? We find the
County’s position unpersuasive. Under the lease agreement, the Museum has received from the
County the right to use the Turner estate for only $1, with no annual lease payments, for fifty years.
The County’s financial obligations under the lease are minimal when compared to this primary
consideration provided by the County.

For these reasons, we conclude that the lease terms that obligate the County to pay for the
Museum’s utilities and other expenses and to insure and maintain the buildings and grounds are
severable from the lease agreement’s other terms and that the lease agreement is not void. The
Museum is still entitled to lease the Turner estate and to operate it as a museum. This office is not
a court, however. We cannot definitively resolve the legal relationship between the parties if the
County continues to insist that the unconstitutional terms of the lease agreement are not severable
or if the parties are otherwise unwilling to accept our legal analysis.

‘Supplemental Brief, Midland County, from Honorable Russell W. Malm, Midland County Attorney, to Susan
Denmon Gusky, Chair, Opinion Committee, Office of the Attorney General (Nov. 4, 2002) (on file with Opinion
Committee).
The Honorable Russell W. Malm - Page 11 (JC-0582)

SUMMARY

Midland County had statutory authority to acquire property
for the purposes of operating a museum and was authorized to
enter into a lease agreement with the Museum of the Southwest. The
commissioners court that entered into the lease agreement could have
reasonably determined that the County and Museum’s respective
obligations under the lease agreement comported with article III,
section 52 of the Texas Constitution. To the extent terms of the lease
agreement obligate the County to pay for the Museum’s utilities and
other expenses and to insure and maintain the building and grounds
over a multi-year period and do not give the County a right to
terminate at the end of each year or to elect on a yearly basis whether
or not to appropriate funds to satisfy its obligations under
the lease, those terms violate the restrictions on public debt in article
XI, section 7 of the Texas Constitution. Because those terms are
severable from the lease agreement’s other terms, however, the
remainder of the agreement is not void. The Museum is still entitled
to lease the Turner estate and to operate the estate as a museum.

Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee