Untitled Texas Attorney General Opinion

2%~ ATFCBIZNEX GENERAL OF TicXAS . February 5, 1971 Iion.J.W.Edgar Opinion NO. M-788 cauniesiowr of Education Teams Sducatbn Agency Ret Whether ahomrule city and 201 Eaet llth Street an independent 8ahool district Awtin, lbacarr 78701 may exchange cmrtain landr without advartidng tlaepro- pomd 0s and 'reaiving DearDoctbrMgarr bide theruoti: . ‘,,.. Your recent litter r&uwting the opinion of tbf8 office concerning tlm referanoed matter Miatw, In pnrt, ae .. follows:, l%,Dalhart &dependent 8chool DlatrL6t on8 a 20-a- tra&t of lhnd which it -pur&ased in 1965 for i&loo1 building pupone@. 'In 1993, tbe+iyofDalhartpuchas8d atractof land ... 'The schbold%&rict deukeatoexizhange about nine acre0 of it8 lOacre tract to tb8. cityfornineacrw of ita trakt,a part ofwhich bas~bk@~ utid’as“(a) .ball park. The landq If a-iii&d -%' jtbb)y scbdl ‘dibgict in embange, till .ba wbd"ii*' a.Mi ifor i new mlmol beil&ng. ., .'. : al . . . '3 am requwted by the Boata of Trwtw8 of ~Dalhat+I~~~~ntSchoolDi~trict toobtain an urgentl* needed opinion from the offica of (the) Attorney General on the following aabdtted quwtiona appertaLni.ngto 8u*landsr l(l) Legally, may the aity a uth o r ity +nd (the) m3mol board ea&anp euch aforementioned lands by appropriate ordinance hotim of the city council and iw8olution of the'edhool board -3833- Hon. J. W. Edgar, page 2 . (M-788) authorizing such 1andB exchange and execution of .deed(cr) therefor, without adverticlingof the aaxe for sale nor using bid procedure? "In the event (1) ie anmered in the affirmative% "(2) May there legally be an exchange of such lands without the city firathaving an election authorieing rale of same?* Youhava alrroinformed us that the tract of land owned by the Cityhaa been and ie now being used am a ball park, and you have so oartified to theae,fact8. We acceptthe factual *tatexenta as true. This place0 the factual aituatioh Withixi the purview .of.hrticle 542151,Vernon's Civil Statutes. A memorandum brief submitted with your letter etatee that the City of Dalhart is a home rule city which adopted its Charter in 1960, and that Section6 70 and 153 of that Charter provide for public.males or leaee of property and in oertain cireunultances~foran election. In our opinion Section 70 of the Charter, which requirw notice and bide, is not applicable in this aituationt howaver, Section 153 of the Charter prwiding I for a 30 day Waiting period and poamible election must be com- plied with. Article 5421c-12, Vernon's Civil Statutes, which pro- vides for publication of notice when a political subdivision of the &ate offers land for sale is not applicable in the fact situation under wneideration. In your came, we find a proposed exchange by two po- litical a&divisions, each with power of eminent domain and con- demnation: cities: kt. 1107, 1109b, 1110, 1206t schools: Sec. 23.31; Texas Education Code. Similar mituatione and question8 were answered in our Opinions C-434 (1965) and C-469 (1965). The opinion8 refer to a PaBo Countv v. The Citv of El. &$, 35; ;;:.2d 783 (Tex.Civ.App. 1962), and pinowille Inde- P ent c 1 District v. Crenshaw, 164 S.W.Zd 49 (Tex.Civ.App. 1942, error ref. wan.). Both caees dealt with a park area in- tended to bacome school property. Similar lrtatuterto Article 5421r12 and your Charter provision Were under consideration. -3834- Hon. J. W. Edgar, page 3 (M-788) The court in the Fl Paso case in effect held that al- though a statute requiring appointment of a commieeioner to sell county land at public auction and a statute relating to abandon- m6nt of county parks are applicable wherever a political sub- division, eubject to such statutes, desires to dispose of any of ite land to an $..gy, neither etatute is applicable where a wlitical subdivision with oower of eminent d 5 nd n ation ,.' eu WL ve and to reach an agreement as to change of public use. The L(inaevillQcase, eupra, held in effect that a city park devoted to public use could be taken fa another public use without bide.and,zonverted to public school use, whee the city and school authorities determined that its use for school pur- poses was ne+eeaa?y and that it was not-practical or possible to use any othh property. However, Article 54216, eupra, enacted fn 1969, in its Section 1, read6 as fdllwer *Ho department, agency, political subdivision, county, or municipality of this State shall apprwe any program or project that requires the treeor taking of any public land designated and utilized prior to the arrangement of such program or project as a park, recreation area, scientific area, wild- life refugei or historic site, unless such depart- ment, agency, political eubdivieion, county or mu- nicipality,,acting thr%gh its duly authorized governing body.or'officer, shall determine, after notice and a public hearing as required herein, that .(l) there is no feasible and prudent alterna- tive to the use of taking of such land, and (2) such program or project includee all reasonable planning to minimize harm to such land, as a park, recreation area, scientific area, wildlife refuge. or historic site, resulting from such use or takingr clearly enunciated local preferences shall be con- sidered, and the provisions of the Act do,not con- stitute a mandatory prohibition against the use of such area if the findings are made'that justify the approval of a program or project. -3835- Hon. J. W. Edgar, page 4 (M-.788) Section 2 of this Article preeaibee publication pro- cedures, and Section 3 prwidee that judicial review is hamed 30 days after the aotion is announced. Dalhest'e nine acre tract beAng a ball park, clearly Article 542lq would apply. You aretherefore advised that the anevmrtoyour two ~eetione is *yes', but the Piope+d ~oxchange of property is subject to the notice and bearing prwieione preeaibed by Article 542lq, and the neceeeary findings thm. Dnder the fact situation, anexchangebetween theCityofDalhert, ahome rule city, andDalhart Inde@end+ntSchoolDietrict of r~leetateueed by the city for public park purpoeee and realty owned by the I~~~ent8~~lDi~~ic+.raquiree the pub- licati~bf notice and public hearing under Cuticle 5421q, V.C.S. Article 5421c-12, V.C.S., which require8 notice and bide, is not appliceblet but Section 153 of tha Charter of the City of Dalhart must be camplied with. neral of Teams prepared by Vim8 Taylor bei8tant m5maney General AFFRovsDr OPINIOM ca4MITTBE Kerns Taylor, Chairmen W. B. Allen, Co-Chairmen -3836- Hon. J. W. Edgar, page 5 (M-788) Arthur Sandlin Pat Bailey Ben Harrison Austin Bray ~MMDEF.GRIE+FIS Staff Legal Aeefetant ALFRmwAIaR Executive Aeeietant Ho&A WRITB F-et Aseietent -3837-