TEEEATTBRNEYGENERAL
OF TEXAS
Auwrmr. TEXAS 78711
October 6, 1977
Honorable G. M. Sawyer Opinion No. H- 1067
President
.Texas Southern University Re: Whether Texas Southern
Houston, Texas 77004 University has the power of
eminentdomain.
Dear President Sawyer:
you have asked whether Texas Southern University has the
power of eminent domain.
Prior to 1971, section 5 of article 264313,V.T.C.S.,
.
'provided,in pertinent part:
The Directors [of Texas Southern University]
are hereby given the power and authority
. . . to acquire, stake, appropriate, hold,
and,enjoy the title to such land and other
property as they may deem necessary . . .
either by purchase or otherwise: and to that
end they shall have the right to exercise the
power of eminent domain and to condemn such
land for such uses and purposes, in the
manner prescribed in Title 52, Revised Civil
Statutes of Texas of 1925, as amended. . . .
In 1971, Title 3 of the Education Code was enacted by House Bill
1657, and article 264313was among the statutes repealed thereby.
Acts 1971, 62nd Leg., ch. 1024, at 3322.
However, the bill declared it was a "non-substantive revi-
sion of the higher education laws of this state." Id. at 3072.
(Emphasis added). It contained a clear statement ofegislative
intent:
This is intended as a recodification only
and'no substantive changes are intended by
this legislation.
Id. at 3319. Article 264313, section 5, V.T.C.S., was effectively
replaced in the 1971 revision by section 106.35 of the Education
Code, which reads as follows:
pt 4572
Honorable G. M. Sawyer - page 2 (H-1067)
The board on behalf of the university may
acquire by purchase, exchange, or other-
wise any tract or parcel of lanhin Harris
County that is contiguous or adjacent to
the campus of the university when the board
deems the land necessary for campus ex-
pansion.
(Emphasis added]. When this provision, formerly article 2643d-1,
V.T.C.S., was' enacted, the board had eminent domain power.under
the express terms of article 2643b. See Acts 1961, 57th Leg.,
ch. 413, 9 1, at 938. Thus, the Univzity could use its eminent
domain power to acquire land in Harris County adjacent to the
campus. The replacement of article 2643b, section 5, V.T.C.S.,
with section 106.35 of the Education Code may indicate that
the Legislature believed that section 106.35 preserved the
University's eminent domain power.
Since section 5 of article 264313 was not specifically
reenacted in Title 3 of the Education Code, the repealer clause
appears to conflict with the declaration of legislative intent
contained in the new Code. It is well established that, if a
new code is unclear or ambiguous, resort may be had to prior
statutes to explain the legislative intent. Camden Fire
Insurance Ass'n. v. Harold E. Clayton & Co., %-%.2d 1029 (Tex .
1928); Hickerson v. State, 275 S.W.2d 801, 802 (Tex. Crim. App.
1955). Since section 106.35 refers to other non-enumerated
methods of acquiring land, we believe there is an ambiguity
which permits reference to the prior statute. Furthermore, a
statement of repeal does not necessarily prevail over conflict-
ing portions of the same statute. In Ex parte Copeland, 91 S.W.Zd
700 (Tex. Crim. App. 1936), the Court of Criminal Appeals held
that
*[a] clause in a statute purporting to re-
peal other statutes is subject to the same
rule of interpretation as other enactments,
and the intent must prevail over literal
interpretation.' An absolute repeal may be
controlled as a qualified or partial repeal,
where other parts of the statute show such
to have been the real intent.
91 S.W.2d at 701-02. In our opinion, the repeal of article
264313 was not intended to affect ,the exercise of the eminent
domain power for the land acquisitions permitted by section
106.35 of the Education Code. Compare Attorney General Opinion
H-791 (1976).
P. 4573
. .
Honorable G. M. Sawyer ,- Page 3 (H-1067)
Although, as the Texas Supreme Court has observed,
the power of eminent domain must be con-
ferred by the Legislature, either expressly
or by necessary~ implication, and will not
be gathered from doubtful inferences,
it is also true that strict construction
does not require that the words of a stat-
ute be given the narrowest meaning of which
they are susceptible. The language used by
the Legislature may be accorded a full
meaning that will carry out its manifest
purpose and intention in enacting the sta-
tute. . . .
Coastal States Gas Producing Co. v. Pate, 309 S.W.Zd 828, 831
(Tex. 1958). In Barnidge v. United States, 101 F.2d 295 (8th
Cir. 1939), a federal appellate court held that a federal
statute which conferred authority upon the Secretary of the
Interior "to acquire . . . property . . . by gift, purchase,
'or otherwise'," included the power of eminent domain, since
a general~condemnation authority on the part of the federal
government had been previously enacted. 101 F.2d at 297-98.
~ In our opinion, this principle is not, standing alone, suffi-
cient to, convert the "or otherwise" language of section 106.35
into a general grant of eminent domain power, since there is
no Texas statute which provides for a general condemnation
authority. When the principle of Barnidge is considered
together with the ambiguous nature of Title 3 of the Education
Code; however, we believe that a court would probably find
that Texas Southern University presently may exercise the
power of eminent domain for purposes of section 106.35 of the
Education Code.
SUMMARY
A court would probably find that the
Board of Directors of Texas Southern
University may exercise the power of
eminent domain for land acquisitions
permitted by section 106.35 of the
Education Code.
p. 4574
Honorable G. M. Sawyer -,Page 4 (H-1067)
ry truly yours,
A%@
. HILL
ey General of Texas
APPROVED:
v
C. ROBERT H!3V$H, Chairman
Opinion Committee
jst
p. 4575