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