Hon. Gordon K. Shearer OpinionNo. v-1558
Executive Secretary
Texas State Parks Board Re: Authority of the Texas
Austin, Texas State Parks Board to
lease concessions in
MacKenzie State Park to
the City of Lubbock for
a period of ninety-nine
Dear Sir: years.
You have requested an opinion upon the follow-
ing problems:
"(1) Does Senate Bill 19 amend Article
6070a, insofar as limiting the granting of
concession contracts to onceyear? . . .
"(2) If Senate Bill 19 does not amend
Art. 6070a Insofar as limiting the period for
the granting of concessions, is there any
other legislation which would prohibit the
granting of a 99 year concessions lease, or
is there any lack of authority on the part
of the State Parks Board to grant a 99 year
concessions lease?"
You further state:
"The reason we desire this opinion is
that we are desirous of entering into a long
term concessions lease with the City of
Lubbock. However, we do want to know whether
or not we have this authority before we nego-
tiate further with the City of Lubbock."
V.C.S., as amended in 1941, pro-
Article 60'i'oa,
vides as follows:
"Section 1. The State Parks Board is
hereby authorized to operate or grant con-
cessions in State Parks and to operate con-
cessions or make concession contracts for
any,causeway, beac,hdrive, or other im-
provements in connection with State Park
Hon. Gordon K. Shearer, Page 2 - v-1558
sites wherever feasible. The revenue thus
earned by the State Parks Board shall, when
collected, be.placed in the State Treasury.
The Board may make such rules and regula-
tions for the carrying out of this Act and
the laws of this State relative to State
Parks, as it max deem necessary not in con-
flict with law.
Article 607oe, V.C.S. (Senate Bill 19, Acts
51st Leg., 1st C.S. 1950, ch.17, p.78), contains the
following provisions:
"Section 1. Separate facilities shall
be furnished In the system of State parks
for the white and Negro races, and Impartial
provision shall be made for both races.
'Sec. 2. The State Parks Board is au-
thorized:
"(a) To make rules and regulations
for the use of the State Parks and the
facilities therein by the white and Negro
races by providing separate parks or sepa-
rate facilities within the same parks, on
such basis as will furnish equal recrea-
tional opportunities and at the same time
protect and preserve harmony, peace, welfare,
and safety of the State and the community;
"(b) To close any park or facility or
facilities or areas in the State parks where
separate equal facilities for the white and
Negro races cannot be furnished, and to re-
open them when such facilities are available;
"(c) To lease annually to the highest
bidder any park or any portion thereof, or
facility therein, when deemed necessary or
advisable for protection and upkeep of the
property. Such lease shall be previously
advertised once a week for four weeks in a
daily or weekly newspaper in the county in
which the park is located. If the county
Hon..Qordon K..Sh,earer,Page 3 - v-1558
.~
has no such newspaper, such advert~isement
may be run in a similar newspaper in any
adjoining ,county. The Board is authorized
to make additional rules for such leasing.
The proceeds derived from such lease are
here~byappropriated to the State Parks Board
to be used for the improvement of the State
parks system, and to pay for the expenses
of advertising the sale or lease.
"Sec. 3. The fact that the policy of
the State in requiring separate park faclli-
ties for white and Negro citlz~ensis necessary
to preserve the public peace and welfare, and
to protect the privileges of both the whit~e
and Negro citizens in the use of the State
parks; and the further fact that such policy
should be set forth by statutory enactment
giving additional powers to the State Parks
Board to carry out such policy, create an
emergency and an imperative public necessity
that the Constitutional Rule requiring bills
to be read on three several days in each
House be suspended; and said Rule is hereby
suspended, and that this Act shall take
effect and be in force from and after its
passage, and it is so enacted‘"
Your first question involves the problem of
whether the provision in Section 2(c) of Article 607oe,
vic.s., for 'annual" leasing of park facilities implied-
ly repeals Article 6070a, which places no time limitation
upon the concession leases made by your Board. This
problem is controlled by the following rule of statu-
tory construction announced bv the Texas Sunreme Court
129-Tex. 275, 283, 102 S.W.
,2';
"Repeal-of laws by implication is
not favored. 39 Tex.Jur., Section 75, p.140:
59 C.J., Section 510, p. ~905. In the absence
of an express repeal by statute, where there
is no positive repugnancy between the pro-
visions of the old and new statutes, the old
and new statutes will each be construed so
Hon. Gordon K. Shearer - Page 4 - v-1558
as to give effect, if possible, to both
statutes. 39 G.J. Section 75, ~.140.~
In thus construing the two provisions, the following
considerations found in 1 Sutherland, Statutory Con-
struction ~(3rded.1943) 454 should be kept in mind:
“Repealing statutes are subject to
the general rules of statutory construction
applicable to all legislative enactments.
Thus, in determining whether or not a re-
peal has been effectuated, the environment,
association and character of the statute
in its field of operation, the history of
previous legislation, the legislative his-
tory of the Act, and the nature of the de-
fect sought to be remedied by its enactment
are all important factors to be considered
by the courts."
In conformance with the above rules of statu-
tory construction, the annual leasing provision in
Article 6070e must be construed as an integral part of
the entire act and therefore as a grant to the Parks
Board of additional power to enable it better to
administrate the segregation policies embodied into
the legislation. The correctness of this result is bol-
stered by the clause, "when deemed necessary or advisable
for protection and upkeep of the property," which follows
the annual leasing provision In Article 607oe, and by
the statement in the emergency clause of Article 6070e
that the act gives "additional powers to the State
Parks Board to carry out such policy."
In answer to your second question, we have
found no legislation or case law which deprives the
Parks Board of authority to lease the concessions in
MacKenzie State Park for a period of ninety-nine years.
Article 8, Section 6, of the Texas Constitution prohl-
bits the making of appropriations for a longer term than
two years, but the contract you contemplate requires no
appropriation. It has been held that an executive
board may contract for as long a term as it desires if
there is no legislation limiting it and if no debt is
created which would bind a future legislature. Charles
Scribners Sons v. Marrs, 114 Tex. 11, 262 S.W. Y-4).
.
Hon. Gordon K. Shearer - Page 5 - v-1558
A further problem which your proposed trans-
action raises is whether the ninety-nine year lease you
contemplate is actually a sale rather than a lease.
Under the following ,rule stated in 3 Thompson, &&
Property (Perm.ed. 1939) 236, it must be held,to be a
lease, despite Its unusually long duration:
"In the absence of any statute to
the contrary, a lease ordinarily may be made
for any length of time the partiesmay wish
. . . Leases may at law be for years or
life or of perpetual duration. Indeed, they
may be made for any period which will not
exceed the interest of the grantor in the
premises."
This opinion, therefore, in no way passes upon the
authority of the State Parks Board to sell concession
rights.
You are therefore advised that the State
Parks Board has the authority under Article 6070a to
lease the concessions In MacKenzie State Park for a
period of ninety-nine years, and that this authority
is neither repealed by Article 607oe nor restricted
by other existing legislation. This opinion is not
to be construed as passing upon the question as to
the authority of the City of Lubbock under its present
charter to operate concessions In a State park.
SUMMARY
Article 6070a, V.C.S., gives the
Texas State Parks Boatidthe authority
to lease concessions in MacKenzie State
Park for a period of ninety-nine years.
This authority is not repealed by Article
Hon. Gordon K. Shearer - Page 6 - v-1558
6070e (Acts 51st Leg., 1st C.S. 1950,
ch.17, p.78) nor restricted by other
legislation.
APPROVED: Yours very truly,
Jesse P. Luton. Jr. PRICE DANIEL
Landpivision Attorney General
Charles D. Mathews
First Assistant
By&-PA
Thomas Black
TB:bt Assistant