Untitled Texas Attorney General Opinion

.Honorable D. C. Greer Opinion No. C- 434 State' Highway Engineer Texas Highway Department Re: Whether the State Highway Austin, Texas Commission, under the au- thority granted by Article 66738, V.C.S., can legally sell surplus land and im- provements directly to the City of Lamesa for the estab- lished value without adver- tising and without requesting sealed bid8 from the general Dear Mr. Greer: public under the Pacts statea. This is in reply to your letter requesting an opinion from this office as to %ðer under the provision8 of Article 6673a, Vernon's CivzU Statutes, the State Highway CammiSSiOn can legally sell certain surplus land and improvements di- rectly.to the City of Damesa for the established value of the land ,and improvements, such a sale to be without adver- t%ising and without requesting 8ealed bid8 from the general public. According to the fact8 stated,in your letter, the City of Lamesa deeded to the State of Texas certain ground8 in Dawson County for u8e by the Texas Highway Department a8 a maintenance site, without charge to,the State though the deed recited a '$10.00 cOn8ideratiOn. your advised that the State ha8 since placed valuable improvements. on 'the prop- erty. The Highway Department has constructed building8 at a new site, leaving the land acquired from the City of Lameaa, and the fmprovements located thereon as surplu8. The pertinent provisions of Article 6673a provide: "Sectionl. Whenever the State Highway' C0@&88iOn determine8 that any real p~roperty, or interesttherein, heretofore or hereafter acquired by the State for highway purposes, is no longerneeded for such purposes, and in the ca8e of highway right-of-way it has -2052- , , - - Honorable D. C. Greer, page 2 (C-434) further determined that such right-of-way is no longer needed for use of citizens as a road, the State Highway Commission may recommend to the Governor that such land or interest therein be sold, and the Governor may execute a proper deed convey- ing all the State's rights, title and in- terest In such land. It shall be the duty of the Commission to determine the fair and reasonable value of the State's interest in such land and to advise the Governor there- Of. All money derived from such sales shall be deposited i!ithe State Treasury to the credit of the State Highway Fund. Provided further, that where right-of-way property owned by the State wa8 acquired by a city nor county and the State Highway Commission determines that said right-of-viay property should be sold, such property shall be sold with the following priorities: "(1) To abutting or adJoining landowners; "(2) To original grantors, heLr8 or .assigns of the original tract from whence the right-Of-Way wa8 conveyed; or “(3) To the general public. "Notice of said sale shall be advertised at least twenty day8 before the day of sale by having notice thereoS,published in the mllsh IangUage once a week for three con- secutive weeks preceding 8UCh.8ale in a new8- paper In the county in which the real e&ate 18 located. Such sale shall be made on a sealed bid ba8is,'md said land shall not be '8Old for less than the value recommended by the State Highway Commission a8 provided above. ‘Upon recommendation of the State Highway Ccmmission, the Governor may execute a proper deed exchanging any such real property, or in- terest therein, either a8 a whole or part con- sideration, for any other real property, or Interest therein needed by the State for high- - purposes. -205.3- Honorable D. C. Greer, page 3 (C-434) "Provided further, that upon recommen- dation OS the State Highway Commission the Governor may execute'8 proper deed relin- CpiShing and conveying the Statets right, title aud interest in such real property as follows: "(a) IS title.to the State was acquired by donation, convey to the grantor, his heir8 or assigns; or if acquired by purchase by a county or city, convey to the county or city, or to the grantor, his heirs or assigns at the request of the county or city." It.18 the opinion of this office that under the facts stated in your'letter the State Highway Commission can, under the authority granted by Article 6673a, legally sell the surplus land aud Improvements directly to the City of Lamesa for, the established value~of the land and improvements. The statute clearly provides the authority in such an.instance cited in your letter. We call your attention to the last two para- graphs of Article ,6673a above quoted, to the effect that upon reconssendation of the State Highway Commission the Governor ,may execute a proper deed comeylng the State's intereat in such real property if title to the State wa8 acquired by donation, convey to the grantor.and if acquired by purchase by a county or city,,convey to the'county or city, or to the grantor, at the request of the~county or city. In the first paragraph OS tRi8 statute it is provided that "it shall be the duty of the Commission to deters&e the fair and reasonable value OS the State's interest in,such land and to advise the Governor thereof." we do not thi.I& that in an in8taXEe Such a8 th%S the stat- ute require8 notice of the sale to be advertised Qr that sealed bid8 be requested from the general public. The ca8e of El Paso County v. City of El Paso, 357 .S.W.2d 783 (Tex.Civ.App. 19621, sets forth certain reasoning which We think would apply in this in8tauoe, that 3.8: 'We think the statutes hereinabove referred to do apply wherever a political SUbdiViSiOn, subject t0 8uCh 8tatute8, desire8 t0 dispose of any of it8 public~land to an .individual or private agency, but not where such political SUbdiViSiOn with the power of eminent domain -2054- Honorable D. CL ,Greer, page 4 (C-434) and condemnation chooses to deal with it8 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, thereby holding up the public benefit and depleting to some extent the tax funds of the subdivisions involved." While the statutes referred to in the El Paso case above are Article 1577 and Article 6m8a, thmiple that a valid sale can be effected between the State and political subdivisions without advertising and requesting sealed bids frown the general. public is amply upheld. The reasoning OS the Court in District v. &en&an, 164 S.W.: .__ _~~ error ref. w.o.m.), we think applies in&i .8 iIl8tanCe. Syllabus tw0 in that Ca8e states: "Where land was CO&eyed to a city for '.park purposes restricting building thereon to the erection of a band etand, and wa8 later conveyed to 8chOOl district, and city's grantor had waived reversion right8 and city and school authoritier, had agreed upon u8e of the property for school purposes a8 the para- mount public 088, condemnation proceeding was unnecessary. Vernon*8 Ann.Civ.St. art. 11Ggc." &I the kingsville Independent School District case above, the court said: "The city, .aoting through, its mayor and co113i88ioner8, ha8 decided that the park would be serving a better public use if abandoned as a.park~ and converted to school ~OSe8. Under 8Uch CirCWWtanCe8 there i8 no occaeion to litigate the question a8 to the paramount public use of the property." The court in the kingsville ca8e further stated: "Applying the same rule here, if the City and the School District can agree upon the paramount public u8e of the property, why should they be compelled to institute con- demnation proceedings?' -2055- Honorable D. C. Greer, page 5 (C-434) We realize, of course, ~that the necessity of condemnation proceeding8 was in question in the K of 'a sale without advertising and w?&%$%$u::"tz:::;:d bids from the general public as in this instance, but the authority of ~the City and the School District to agree upon the paramount public use of the property as upheld by the Court, is applicable here. In the case of El Paso County v. ,City of El Paso, supra, the court said: u In neither opinion city of Tyler v..~. &&h'County,~l51 Tex. 80;.246 S.W.2d 601, -: and Kingsville Inde enaent School District v. Crenshaw, supra doe8 the Supreme Court or the Court of C3? vi1 Appeal8 mention or refer to the necessity of complying with Article I.577 or Article 60788 of the Texas statutes. We think this 18 probably,true because Article 1 use orbenefit. It is difficult to compre- d why ithe; the Legls.lature through A%cle i&7, br. any court, wouid require the county to sell land at public auction when SUCh land i8 impressed with a public use or trust.~ . . ." (Eknphasis Added.) Thisland wa8 deeded to the State of Texas for u8e by the Texas Highway Department and is State property over which the State has-full control and authority. 'In the absence of constitutional restric- tions, the State may sell and di8pO8e of its property on it8 own term8 and conditions. And legislative enactment8 usually govern the manner in which~state land8 may be disposed of." 52 Tex.Jur.2d 739, State of Texas, Sec. 28. Article 66na sets forth the manner in which 'the land and improvements. in question may be sold. You are therefore advised that the State Highway Commission can legally sell -2056- . . . . Honorable D. C. Creer, page 6 (C-434) the surplus land and improvements described in your letter, to the City of Lamesa for the established value without advertising and kithout requesting sealed bids from the general public. SUMMARY The?State Highway Commis8ion under the authority granted by Article 6673a, V.C.S., can legally sell the surplus land and im- provements in this instance directly to the City of Damesa‘for the established value of the land and improvement8 without advertising and without requesting sealed bid8 from the general public. YOU'S very truly, WAGGONER &RR Attorney General of Texas Den M. Harrison A8sistatlt Bwirasg APPkVELk OPINIOIV coz&MTE!J W. V. Geppert, ahaim Arthur Sandlin Paul Phy James strock MiltOn RiChardSOn APPROVED~ORTHEA~OMEYGElqERAL By: Stanton Stone -2057-