The Attorney General of Texas
September 13, 1982
MARK WHITE
Attorney General
Mr. Laura Cavazos Opinion No. MU-514
Supreme Court Building President
P. 0. BOX 12546
Texas Tech University Re: Authority of Texas Tech
Austin, TX. 76711. 2546
5121475-2501
Health Sciences Center University Health Sciences
Telex 9101674-1367 Texas Tech University Center to build a structure on
Telecopier 51214750266 Lubbock. Texas 79430 property deeded to it by the
city of Odessa and Ector
County subject to an easement,
1607 Main St., Suite 1400
Dallas. TX. 75201-4709 exceptions, reservations and
2141742.6944 right of reversion
Dear Mr. Cavazos:
4824 Alberta Ave., Suite 160
El Paso, TX. 799052793
91515333464 The following is a response to your request for a legal opinion
from this office. In your request you indicated that the city of
_. .
Odessa and Ector County conveyed approximately 6.2 acres ot land
1220 Dallas Ave., Suite 202
located in the city of Odessa to Texas Tech University Health Sciences
Houston, TX. 770026966
7 13/650-0666
Center (hereinafter TTUHSC) for the purpose of constructing and
maintaining medical school facilities. The facilities would provide
teaching, research, administrative and other medical and health care
606 Broadway, Suite 312 related activities for the community.
Lubbock, TX. 79401-3479
6061747-5236
The land was conveyed to TTUHSC by a general warranty deed
subject to the following easement, exceptions, reservations,
4309 N. Tenth, Suite B covenants, and rights of reversion:
McAHen, TX. 76501-1665
5121662.4547 1. Grantor shall retain an easement to use the
property described herein for parking and like
200 Main Plaza, Suite 400 uses until the time of construction of the medical
San Antonio. TX. 76205-2797 school facilities which time-of construction shall
5121225.4191 be evidenced by written notice furnished to
Grantor by Grantee stating that it has approval of
An Equal OppOrtunityI
all of the necessary construction funds and is
Affirmative Action Emplover ready to commence construction.
2. Grantee shall furnish Grantor with written
notice of the approval of the funds necessary for
construction of the medical school facilities. In
the event that such funding is not approved and
notice furnished as provided herein within fifteen
(15) years of the date this deed is signed, then
p. 1859
Mr. Lam-o Cavazos - Page 2 (Mw-514)
title to the lands described herein shall revert
to the Grantor when Grantor furnishes to Grantee
notice of such condition and files a copy of such
notice of reversion in the deed records of the
County Clerk of Ector County.
3. Grantee shall furnish Grantor with written
notice of the time to cotmnenceconstruction of the
medical school facilities. In the event that such
construction does not commence within thirty-six
(36) months of the date the total funds are
approved, then title to the lands described herein
shall revert to the Grantor when Grantor furnishes
to Grantee notice of such condition and files a
copy of such notice and reversion in the deed
records of the County Clerk of Ector County.
4. Subject to the above expressed conditions
and rights of reversion, it is expressly agreed
that this conveyance shall be absolute and
continue in full force and effect so long as such
lands are used for the purposes of construction
and use for medical school purposes and
facilities, or for teaching, research,
administrative or other related medical and health
care activities of Texas Tech University Health
Sciences Center. However, should Grantee cease
construction or use of such land for such
aforesaid purposes or activities for a period of
time of more than eighteen (18) successive months
and after written notice by the Grantor to Grantee
of Grantee's violation of the foregoing
conditions, then title to the herein conveyed
lands shall revert back to the Grantor herein when
Grantor files a copy of such notice and reversion
in the deed records of the County Clerk of Ector
County.
5. All notices to Grantee shall be deemed
delivered by depositing such notices with the U.S.
Mail addressed to the Chairman of the Board of
Regents, Texas Tech University Health Sciences
Center, Texas Tech University Campus, Lubbock,
Texas. All notices to Grantor shall be deemed
delivered by depositing such notice with the U.S.
Mail addressed to the County Judge, Ector County
Courthouse, Odessa, Texas.
p. 1860
Mr. Laura Cavasos - Page 3 (MW-514)
You have asked this office whether TTUHSC may lawfully construct
medical school facilities on the land subject to the foregoing
easement, exceptions, reservations, covenants, and rights of
reversion. It is our opinion that TTUHSC may lawfully construct such
facilities on said land.
TTUHSC has general authority to construct medical school
facilities sunder the following two provisions:
1. The board [Texas Tech University Board of
Regents] shall make provision for adequate
physical facilities for the Health Sciences
Center, including library, auditorium, and animal
facilities, for use by the Health Sciences Center
in its teaching and research programs.
Educ. Code P110.07.
2. The board has the sole and excl"sive
management and control of lands set aside and
appropriated to or acquired by the institutions
under its governance. The board may lease and
otherwise manage, control, and use the lands in
any manner and at prices and under terms and
conditions the board deems best for the interest
of the institutions....
Educ. Code §llO.ll.
The foregoing authority is limited, of course, by the state
constitutional prohibitions against gratuitously granting public money
or things of value to others. Three prior opinions of this office
discuss the constitutional limitations in cases somewhat similar to
the one before US. The question in Attorney General Opinion H-257
(1974) was whether the Parks and Wildlife Department could spend state
funds, matched by federal funds, to construct facilities on land owned
in whole or in part by the federal government without violating
article III, section 51 of the Texas Constitution, which states:
The Legislature shall have no power to make any
grant or authorize the making of any grant of
public moneys to any individual, association of
individuals, municipal or other corporation5
whatsoever....
Our opinion concluded that the proposed expenditure would not
violate the foregoing constitutional prohibition against gratuitously
granting public money because the expenditure had a valid public
purpose and an adequate public benefit.
p. 1861
Mr. Laura Cavazos - Page 4 (MW-514)
In Attorney General Opinion H-403 (1974) the question was whether
a state agency could construct a building on land that it did not own
but merely leased. When the lease terminated, the building would
become the property of the landowner. We concluded that:
[i]n our opinion if an expenditure for the
erection, repair or maintenance of an improvement
on leased property is for a proper public purpose
and if the consideration or benefit to the public
is adequate, the transaction is not rendered
invalid by the possibility that the private party
will realize an unexpected incidental benefit.
(Emphasis in original).
The third, Attorney General Opinion H-655 (1975), was written in
response to a question regarding the authority of Texas A & M
University System to construct a building on land that was subject to
a possibility of reverter. We concluded that it was, based on the
public purpose and public benefit test announced in the foregoing
opinions. The opinion concluded by saying:
Since the public purpose and benefit are evident
in the instant case, and since there is less
possibility of divestiture in this case than in
those involved in our prior opinions, we believe
the proposed expenditures would be clearly
constitutional.
With this background, we turn now to your question. We note
first that only one of the five restrictions in the deed to TTUHSC
raise the constitutional question discussed in the foregoing three
prior opinions of this office. The first paragraph merely reserves an
easement for parking until construction of the medical facilities
begins. Paragraph 5 deals with notice. Paragraphs 2, 3, and 4 all
contain reversionary clauses but only number 4 raises a constitutional
question regarding the possible reversion of the medical facilities to
be constructed by TTUHSC. Reversion under paragraphs 2 and 3 would
occur, if at all, prior to the construction of-the medical facilities
before any public funds were expended.
Under paragraph 4 it is possible that the medical facilities to
be built, by TTUBSC could revert to the Grantors. There are two
conditions under which a reversion could take place. The first is if
the construction of the medical facilities ceased for a period of time
in excess of eighteen successive months. The second condition is if
the lands ceased to be used for the location of medical school
facilities, or the facilities ceased to be used for teaching,
research, administration, or other related medical and health care
activities by TTUHSC, and such condition continued for a period of
time in excess of eighteen successive months.
p. 1862
. .
Mr. Laura Cavazos - Page 5 (MW-514)
Both of the foregoing conditions that would create the basis for
a reversion are within the ability of TTUHSC to avoid. By seeing that
the conditions do not occur, TTUHSC can retain title to the land and
the medical facilities indefinitely, thereby forestalling any
constitutional question regarding the gratuitous grant of public
moneys.
In any event, it is our opinion that TTUHSC has statutory
authority to build a medical facility on the land deeded to it by the
city of Odessa and Ector County and that expenditures for this purpose
will be for a proper public purpose and will result in an adequate
public benefit to TTUHSC. E Educ. Code §110.09.
SUMMARY
On the facts provided, Texas Tech University
Health Sciences Center may construct medical
facilities on land deeded to it by the city of
Odessa and Ector County but subject to certain
easements, exceptions, reservations, covenants,
and rights of reversion without violating article
III, section 51 of the Texas Constitution.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Ralph Aldave
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Ralph Aldave
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p. 1863