THE ATTOIQMEY GENERAL
0eTEx~s
Arrslw.T~As~ 7Q7ll
JOHN Ia. ElLL
A-ZCNEY as-Ax.
August 30, 1973
The Honorable J. W. Edgar Opinion No. H- 93
Commissioner of Education
Texas Education Agency Re: May the El Campo school
201 East Eleventh Street district pursuant to an
Austin, Texas 78701 agreement with the City
of El Campo, transfer
title to school-owned
surplus ,land, by nego-
tiation for the considtr-
ation of improvements
and usage -- without the
necessity of a cash con-
~sideration offered at a
Dear Dr. Edgar: public bidding 7
Your ,request for an opinion of this office asks whether the El Campo
School District may ~transfer title to 30 acres of surplus land to the City of
El Campo without the necessity of competitive bids and without cash consi-
deration. You state that the School District desires to convey the land in
exchange for the City’s promise to make $60,000 in recreational improve-
,ments to the land which ,students of the District may use at all times. The
City is anxious to obtain the land and develop it as a part of its master
park system in El Campo. You state that the agreement, if within the
district’s authority, will be of benefit to the school and the community.
Trustees of the El Campo Independent School District are generally
vested with wide powers of management and control of real and personal
property of the district. Section 23.26 Texas Education Code. Subsection
(c) of that section states that:
“All rights and title to the school property of
the district, whether real or personal, shall be vested
in the trustees and their succe.ssors in office.”
p. 428
The Honorable J. W. Edgar, page 2 (H-93)
Of course, as local public corporations, independent school districts
through their boards of trustees may only exercise powers expressly or
impliedly granted to them by the Legislature. Love v. City of Dallas, 40
S. W. 2d 20 (Tex. 1931); Foster v. City of Waco, 255 S. W. 1104 (Tex.1923).
No school district may make a contract that is not expressly authorized
by law or necessarily implied from powers expressly granted. McCorkel
v. District Trustees, 121 S. W. Zd 1048 (Tex. Civ. App., Eastland, 1938, no
writ).
Among the powers the Legislature has expressly granted to indepen-
dent school districts are the exclusive management and control of the schools
of the district [$23.26(b), Texas Education Code], including the power to
sell any~property of the district. Sections 23.29, 23.30, Texas Education
Code. The contractual rights to be obtained here constitute “more conven-
ient and more desirable school property” within the meaning of $23. 30(c),
in our opinion.
The board of trustees may also contract to improve or acquire gym-~
nasia, stadia, or other recreational facilities ($20.21. Texas,Education
Code), or may, by agreement establish, provide, maintain, construct and
operate jointly with another governmental unit. . . playgrounds, recreation
centers, athletic fields, swimming pools, and other parks and recreational
facilities located on property now owned or subsequently acquired by either
of the governmental units. Article ,6081t, V. T. C.S. The courts will not
interfere with the exercise of the board’s authority unless a clear abuse of
power and discretion is made to appear. Kissick v. Garland Independent
School District, 330 S. W. 2d 708 (Tex. Civ.App., Dallas, 1959, err. ref.).
In our ~opinion, the El Campo Independent School District may enter
into an agreement with the City of El Campo whereby the District obtains
the right to require the construction of and to use recreational facilities to
be constructed by the city to the district’s specifications, in consideration
of the district’s transferring title to the land to the city for use as a public
park. Compare Attorney General Opinion M-1195 (1972). Section 20.50,
Texas Education Code, would limit the contract period to 75 years, but
Article 6081t author&es similar contracts between governmental units for
indefinite periods of time. Since the Education Code states the board of
trustees of an independent school district shall have the powers and duties
p. 429
The Honorable J. W. Edgar, page 3 (H-93)
described in the Code, in addition to any other powers and duties granted
or imposed by law(s23. 25), the contract may be for an indefinite period
pursuant to the provisions of Article 6081t.
No violation of Article 3 5 52 of the Constitution is involved because
there is a quid pro quo. Neither governmental unit is making a grant or
a loan of its credit to the other. See San Antonio River Authority v.
Shepperd, 299 S. W. Zd 920 (Tex. 1957).
You also ask if the school district must accept competitive bids
on the sale of the land or the contract for the construction and use of recrea-
tional facilities to be used by the district.
“All contracts proposed to be made by any
Texas public school board for the construction,
maintenance, repair or renovation of any building
. . . shall be submitted to competitive bidding
when said contracts involve $1,000 or more. ”
Section 21.901(b) Texas Education Code.
Similarly, the Legislature has generally required that:
“No land owned by a political subdivision of
the State of Texas may be sold or exchanged for
other land without first publishing in a newspaper
of general circulationin the county where the land
is located i . . a notice that the land is to be
offered for sale or exchange to the general public,
its description, its location and the procedures
under which sealed bids to purchase the land or
offers to trade for the land may be submitted. ”
Article 5421c-12. V. T. C.S., as amended in H.B.
40, 63rd Leg., 1973.
Articles 54219 and 1019, V. T. C. S., requiri special procedures
before land designated or utilized as a public park, recreation area, etc.,
may be disposed of by a political subdivision of the state, and are not
applicable to the situation you present since the “surplus land” you wish
p. 430
The Honorable J. W. Edgar, page 4 (H-93)
to convey has not (to our knowledge) been designated for any of the special
purposes to which those articles apply.
In our opinion, state law does not require competitive bidding in
your situation. Although the transaction may fairly be characterized as a
“sale” of land or as a contract exceeding $1,000 for the construction of
facilities used by the District, it is most reasonably characterized as an
agreement reached between two political subdivisions, each having the
power of eminent domain and condemnation, respecting the paramount
public use of land owned by one of them. The contract for the construction
of facilities by the city for the district’s use is only incidental to and con-
sideration for the transfer of land to the city for the paramount public
purpose of providing adequate park facilities to.city residents.
The Legislature has expressly authorized home rule cities to con-
demn both private and ,public property. Article 1175(15), V. T. C. S., grants
to home rule cities:
“power ,to appropriate private property for public
purposes whenever the governing authorities deem
,it necessary. . . . The power of eminent domain
hereby conferred shall include the right. . . to
condemn public property for such purposes. ”
(emphasis added)
Our courts have held that political subdivisions having the power of
eminent domain and condemnation may avoid those expensive proceedings
when they agree.among themselves as to the paramount public use of land
owned by one of them. Kingsville Independent School Dist. v. Crenshaw.
164 S. W. 2d 49 (Tex. Civ. App., San Antonio, 1942, err. ref.) ; El Paso
County v. City of El Paso, 357 S. W. 2d 783 (Tex. Civ.App., El Paso, 1962,
no writ): City of Tyler v. Smith County, 246 S. W. 2d 601, (Tex. 1952).
The court in El Paso County v. City of El Paso, supra., noting that
Articles 1577 and 6078a set out notice and competitive bidding procedures
for the sale of county land, said:
p. 431
The Honorable J. W. Edgar, page 5 (H-93)
“We think the statutes herein referred to do
apply wherever a political subdivision, subject to
such statutes, desires to dispose of any of its public
land to an individual or private agency, but not where
such political subdivision with power of eminent
domain and condemnation chooses to deal with its
opposite number and reach an agreement as to the
change of public use, rather than to resort to the
expensive and tedious medium of litigating the entire
matter through the courts. . . .” (357 S. W. 2d at 787)
We believe the statutes requiring competitive bidding procedures
when land is sold by a political subdivision of the state do not apply to
a situation in which one political subdivision is negotiating with another
about the paramount public use of public land in an effort to avoid con-
demnation proceedirigs.
It is therefore our opinion that the agreement you wish to enter
into with the City of El Campo is within the permissible contractual
powers of the school district and t-nay be completed without the necessity
of competitive bids and without cash consideration.
SUMMARY
An independent school district is vested with
the power of contracting with a city for construction
and use of recreational facilities to be used by the
district and in exchange therefor may convey title
to surplus school land to the city if both agree that
the paramount public use of the land would be its
use as a public park for the benefit of all the residents.
-Very truly yours,
Attorney General of Texas
p. 432
The Honorable J. W. Edgar, page 6 (H-93)
Opinion Committee
p. 433