Untitled Texas Attorney General Opinion

P 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