NE
Hon. C. H. Cavness 'Opinion No. V-1443
State Auditor
Austin, .Texas Re: Applicability of H.B.
753, Acts 52nd Legis-
lature, 1951, estab-
lishing an accounting
system for State prop-,
erty, to such property
as The Alamo, the French
Embassy, Battleship Tex-
Dear Sir: as, and the like.
Your request for an opinion Is as follows:
"Your Interpretation or answers to the
following questions In connection with House
Bill 753 of the 52nd Legislature, an Act pro-
viding for the responsibility and accounting
for State property, are desired not only by
this office but also by the State Comptroller
of Public Accounts and the State Board of
Control.
"1 . Are the following agencies subject
to all the provisions of House Bill No. 7531
A. Texas Hall of State, Dallas,
Texas
B. San Jacinto Museum, San Jaclnto
Monument, Texas
C. Battleship Texas, San Jacinto
Monument, Texas
D. The French Embassy, Austin,
Texas
E. The Alamo, San Antonio, Texas
F. Museum, In the old Land Office
Building here in the Capitol
Grounds, operated by the Daugh-
ters of the Republic and the
Daughters of the Confederacy
"2 . In the event any of the above agencies
are fount' to be subject to compliance with H.B.
. 1
Hon. C. H. Cavness, page 2 (V-1443)
No. '(53,shall the records, reports,, and forms
as referred to in Section 2, Sub-section (a)
thereof be filed with the Comptroller by the
agency in question, ‘or by the State Board of
Control which serves,. In a supervisory capacity?”
House Bill 753, Acts 52nd Leg., R.S. 1951,
ch. 356, p. 602 (Article 6252-G, V.C,.S:),
. provides:
“Section 1. The Legislature finds that
the State has a very substantial investment
in real and personal property and that a sub-
stantial portion of the annual income of the ,
State is spent to acquire property for State
purposes and to maintain State property. The
purpose of this Act Is to establish ansystem
for the orderly accounting for State property,
to establish responsibility for the mainte-
nance and care of State property and to pre-
scribe the method of fixing pecuniary liabil-
ity for the misuse of State property by offi-
cials and employees. The principles embodied
in this Act dare now found in the common law
and Statutes of this State; this Act restates
those principles and prescribes the imple-,,
menting procedures. The State has a real
interest in its property and is entitled to
having it managed and used in a sound and
businesslike manner so that .the maximum bene-
fits may be obtained from it and the State’s
investment thereinprotected.
“Sec. 2. The provisions of Articles
10, 11, 12, 14, 22, and 23, Revised,Civil
Statutes of Texas, 1925, and Acts, Fiftieth
Legislature, 1947, Chapter 359,,on th.e in-
terpretation of Statutes shall apply speci-
fically to this Act. In addition to these
standard definitions, In this Act, unless
the context otherwise requires:
“(a) ‘Agency’ shall include any State
department, agency, board or other lnstru-
mentality, whethe,r it is financed in whole
or in part by funds appropriated by the
Legislature or not; bu,t shall not include
local political subdivisions of the State,
such as counties, cities, towns, school
districts, flood control districts, irri-
gations districts, and the like.
. .
Hon. C. H. Cavness, page 3 (V-1443)
"(b) 'Agency head' shall mean the full-
time State elected or appointed official or
officials who administer the agency or the
executive who has been appointed to administer
the agency by a part-time State elected or
appointed of,flclal or officials.
"Sec. 3. All real and personal property
belonging to the State shall be accounted for
by the head of the agency which'has possession
of the property. ,,
"(a) The Comptroller of Public Accounts I
shall administer the property accounting system
established by this Act. The State, Auditor
shall administer the property responsibility
system established by this Act. The Comptrol-
.ler shall issue such rules and regulations
and manual of Instruction and prescribe such
records, reports, and forms as he deems neces-
sary to accomplish the objects of this Act
subject to the approval of.the State Auditor.
. . .
"(b) The Comptroller shall maintain
a complete and accurate set of centralized
records of State property. However, where
the Comptroller finds that an agency has
demonstrated its ability and competence to
maintain complete and accurate detailed re-
cords of the property it possesses without
the detailed supervision by the Comptroller,
the Comptroller may direct that the detailed
records be keptat the principal office of
such agency. Where the Comptroller issues I
such order, the Comptroller shall keep only
summary records of the property of such
agency and the agency shall keep such de-
tailed records as the Comptroller directs
and furnish the Comptroller with such re-
ports at such times as the Comptroller di-
rects,
"(c) Each agency head shall cause
each Item of State property possessed by
his agency to be marked so as to identify
it. The agency head shall follow the ln-
structlons iasued by the Comptroller in
marking State property.
Hon. C. H. Cavness, page 4 (V-1443)
“Sec. 4. (a) All State agencies shall
comply with the provisions oft this Act and
shall keep the property~records required by
this Act. .'
"(b) All realnroperty owned by the
State shall be accounted for by the agency
which possesses the property. ,:Y; ,Y.
"(c) All personal property-owned by
the State shall be accounted for by the
agency which possesses the property. The
Comptroller shall by regulation define what
is meant by personal property for the pur-
poses of this Act. . . ,
“Sec. 5. Each agency head is respons-
ible for the proper custody, care, malnte-
nance, and safekeeping of the State property
possessed by his agency. . . .
"(e) Each agency shall make a complete
physical inventory of all property in its
possession once a year. The inventory shall
be taken on the date prescribed for the agen-
cy by the Comptroller.
"(f) The agency head shall forward a
signed statement describing the method by
which the .inventory was verified, along with
a copy of such inventory within forty-five
(45) days after the inventory date for the
agency.
"(g) The Comptroller shall sub&vise
the property accounting records of each agen-
cy so that the records accurately reflect
the property currently possessed by the agen-
CY. The Comptroller shall prescribe the
methods whereby items of property are delet-
ed fr?m the property records of the agency.
. . .
It is noted ,from the above quoted provisions
that House Bill 753 is applicable to all property, real
and personal, owned by the State; and to the "agency"
which has possession of such property. "Agency is
defined by the act as "any State department, agency,
board or other instrumentality whether it is financed
. .
Hon. C. H. Cavness, page 5 (V-1443)
in wl~ole or in p:irt by funds appropriated hy the
Leglslxture or not” with exceptions not applicable
to your request. Therefore, two questions must be
determined in regard to each property listed in your
request. First, is the property owned by the State?
Second, if the property is owned by the State, what
agency, as defined by H.B. 753, has possession Of
the property? We will discuss these questions as
they regard the individual property under considera-
tion.
1. The Alamo Property. S.H.B. 1, Acts
29th Leg., R .S. 1905, ch. 7, p. 7, provides In part:
“That the Governor of the State of Texas
be and is hereby authorized to purchase at a
price not to exceed Sixty-five Thousand Dol-
lars ($65,000), and to procure to be execut-
ed to the State of Texas by the owners of the
property herelna’fter mentioned a good and
sufficient conveyance in fee of all the land
in the City of San Antonio, Texas, known as
the Hugo & Smeltzer Company property, former-
ly a part of the old Alamo Mission and adjoln-
lng the Plamo Church property now owned by
the State: . . .
“Sec. 3. Upon the receipt of the title
to said land, the Governor shall deliver the
property thus acquired, together with the
Alamo Church property already owned by the
State, to the custody and care of the Daugh-
ters of the Republic of Texas, to be maln-
talned by them in good order and repair,
without charge to the State, as a sacred
memorial to the heroes who immolated them-
selves upon that hallowed ground; and &
the Daughters of the Republic of Texas to
be maintained or remodeled upon plans adopt-
ed by the Daughters of the Republic of Tex-
as, and approved by the Governor of Texas;
provided that no changes or alterations
shall be made in the Alamo Church proper,
as It now stands, except such as are abso-
lutely necessary for its preservatipn. All
of said property being subject to future
legislation
leglslation’by by the
ihe Legislature
Leglslacure of the State
of Texas. ”
.
Hon. C. H. Cavness, page 6 (V-1443)
Pursuant to the above quoted provisions
the Alamo property as it now exists was acquired
by the State and custody of the property placed
in the Daughters of the Republic. In construing its
provisions it was held in Conley v. Daughters of
the Republic, 106 Tex. 80, 156 S.W. 197.(1913), that
"the state, acting by its Legislature, had the au-
thority to acquire title to the Alamo property and
to place that property in the custody of the cor-
poration, the Daughters of the Republic." The court
also stated:
"We are of the opinion that by the accept-
ance of the terms of the statute the cor-
poration became a trustee for the State."
155 S.W. at 200.
Since the Daughters of the Republic is a
trustee for the State, it is an "instrumentality" which
has possession of state property, and it is our opinion
that it constitutes an agency for the State within the
meaning of H.B.' 753. Therefore, the Daughters of the
Republic, being the agency in possession of the Alamo
property, should keep the property records required
by the act, account for all property owned by the State
In its possession, and file such reports as directed
by the Comptrolle:.-. Letter Opinion to Honorable Hall H.
Logan, Chairman of State Board of Control, dated Decem-
ber 13, 1949.
2. The French Embassy Property. H.B. 728,
Acts 49th Leg., R.S. 1945, ch. 286, p. 455 (Art. 687b,
V.C.S.) provides:
"Section 1. There is hereby appropriated
all moneys now in the Texas Centennial Com-
mission funds If and when available to apply
on the purchase of the French Embassy build-
ing and all properties therein.
"Sec. 2. Said property to consist of
Embassy building and two and one-half (24)
acres out of the Southeast part of Outlot
No. 1, in Division B, City of Austin, Texas,
facing easterly on San Marcos Street, with
line commencing at the intersection of San
Marcos and Ninth Streets and running south-
erly with the West line of San Marcos Street
to an alley between Seventh and Ninth Streets.
Honk. C. H. Cavness, page 7 (V-1443)
main In custody of the’Bo&d bf Control.”
Pursuant to the foregoing provisions the
State Board of.C.ontrol was authorized to purchase
the French Embassy property for the State. Att’y
Oen. Op. V-206 (1947). As soon as title was ac-
quired by the State, custody and possebsion of the
French Embassy,property was placed in the Daughters
of the Republic in accordance with the provision of
H.B. 728 of the 49th Legislature. Therefore, our
discussion relative to the Alamo property is appli-
cable to the French Embassy property.
3. Battleship Texas. The Battleship Tex-
as wa8 acquired by the State by gift from the United
States Oovernment.
Article 6145-2, V.C.S., created the Battle-
ship Texak Commission for the purpose of accepting
the gift and maintaining the property as a permanent
memorial. Section 3 provides:
“The duties of the Commission shall be:
To provide a proper berth for the Battleship
‘Texas,’ to select a location add¢ to,
or on, the San Jaclnto Battlegrounds for
such. b,pptti; ‘to .+eady th&Ges&Xi’fo,r visita-’
tion by ,the, publicj to ascertain, and insti-
tute a proper charge for admission to said
vesselj to maintain and operate said vessel
as a permanent memorial and exhibition, and
to allocatq,the money herein appropriated
as may be nkceeeary for’the fulfillment of
the dutlee contained herein. Said Commis-
sion is further authorized to perfornl all
other duties in addltion.,Uo thoae apecifi-
tally named above oi- mentioned below which
are necessary to carry out the provisions
and purposes of this Acti The aforesaid
Hon. C. H. Cavness, page 8 (V-1443)
Commission shall be and hereby is authorized
to accept gifts or donations for the pur-
poses of this Act."
In a letter opinion to Mr. Gordon H. Lloyd,
Executive Secretary of the Employees Retirement System,
dated April 11, 1949, this office held that employees
of the Battleship Texas Commission were eligible to
become members of the State Employees 'Retirement System
since the Commission Is a "Department" of the State
Government within the meaning of Article 6228a, V.C.S.
In view of the foregoing, it is our oFin:
ion that the Battleship Texas Commission Is an agen-
cy" of the State within the meaning of H.B. 753. As
it has possession of the Battleship Texas,*it should
keep the property records required by the act.
4. San Jacinto Museum Property. "The San
Jaclnto State Park', composed of the lands owned and
acquired by the State called the San Jaclnto battle-
field, was established in 1907 by the Legislature and
placed in the custody of the State Superintendent of
Public Buildings and Grounds (now State Board of Con-
trol) and the San Jaclnto State Park Commissioners.
S.B..18, Acts 30th Leg., R.S. 1907, ch. 48, p. 104.
In 1939, the San Jacinto Memorial Tower was
constructed and the Legislature then authorized the
State Board of Control to contract with the San Jacinto
Museum of History Association to the end that the as-
sociation, should assume the care, custody and control
of the SawnJacinto Memorial Tower. S.C..R. 21 of the
46th Leg., R.S. 1939, P. 733.
Attorney General's Opinion O-951 (1939) up-
held the validity of a contract placing the care,
custody, and control of the San Jacinto Memorial Tower
in the San {aclnto Museum of History Association,
stating:
1,. . * The contract does not violate
Article 3, Section 51 of our Constitution,
nor, so far as we have observed, any other
portion or provision of the Constitution
of Texas. The authority of the State of
Texas to enterinto contracts of this char-
acter was upheld In the case of Conley vs.
Daughters of the Republic;156 S.W. 197.
. . .
Hon. C. H. Cavness, page 9 (v-14431,
,I
. . . By Section 6 of the con-~
tract, It Is contemplated that the corpora-
tion, as trustee for the State, shall use
the money collected from operating the
elevator to defray the expenses of operat-
ing the elevator, paying jahltors and watch-
men, and for maintenance and policing of
the building, and for complylng~HSt~h the
general terms of the resolution’ bf the ‘Legis-
lature In respect to insurance, with the
balance of said moneys, as well as the bal-
ance of the net profits remaining after the
payment of such expenses, to be used on the
grounds of. the San Jaclnto State Park under
the direction of the Board of Control. . . .’
Since the San Jacinto Museum of History As-
sociation is trustee for the State, It is our opinion
that it constitutes an “agency” of the State within
the meaning of H.B. 753. Since it is in possession
of the San Jacinto Memorial Tower, the San Jaclnto
Museum of History Association should keep the property
record% required by H.B. 753, account for all State
property In its possession as required by the act,
and file such reports as directed by the Comptroller.
Old Land Office Building Property. H.B.
831, Acts 24th Leg., R.S. 1915, ch. 208, ‘p. 486, pro-
vides in part:
:
“That as soon as the building located
near the Capitol and known as the General
$ndT;:;;ce Building, in Austin, Travis coun-
is vacated the same is hereby set
aside for’the uses and purposes of the Daugh-
ters of the Republic and the Texas Division
of the Daughters of the Confederacy; and the
said Daughters of the Republic and the Texas
,Divlsion of the Daughters of the Confederacy
.be and the same .are hereby authorized to
take full charge of said b,uildlng and use
the same conjointly as they see proper; pro-
vided, however, that the Daughters of the
Republic shall occupy the upper floor of said
building and the Texas Division of the Daul’h-
ters of the Confederacy shall occupy the lowor
floor of said building:
“In order that the said building known
Hon. CI H. Cavness, page 10 (V-1443)
as the General Land Office, and now occupied
as the General Land Office, In Austin, Travis
county, Texas be properly repaired and re-
modeled, after the same has been vacated
as the General Land Office, the sum of ten
thousand ($lO,OOO.OO) dollars or so much
thereof as may be necessary, is hereby ap-
propriated out of any fund not otherwise
appropriated, to be used In repairing and
remodeling said building, the same to be
expended under the ;dlrection of the Super-
intendent of Public’ Buildings and Grounds.”
The Legislature by the above quoted provl-
sions placed the custody and control of the “Old Land
Office Building” in the Daughters of the Republic and .
the Daughters of the Confederacy, thereby,making them
trustees for the State. Conley v. Daughters of the
Re ublic, supra. Therefore, our discussion relative
-TAiz-T lamo property and the French Embassy property
is applicable to the “Old Land Office Building.”
6. Texas Hall of State property. S.B. 22,
Acts 43rd Leg., 2nd C.S., 1934, ch. 69, p. 164, created
the Texas Centennial Commlasion, granting it “plenary
power to do any and all things In Its judgment necea-
aary to carry out the purposes of the organization,’
to-wit, the holding of the Texas Centennial Celebration
or Celebrations in 1936. Section 14 of the act, how-
ever, provided:
“All lands and bulldings purchased by
Legislative appropriations and all net prof-
its that may be acquired by said Commission
shall be turned over to the State of Texas
within two years from the close of the Texas
Centennial celebration for such disposition
as the Legislature may then determine after
a final report to the Legislature by the
Commlssion shall have been filed with the
Secretary of State, and the Commisslon shall
then be discharged by legislative action,
and the corporation dissolved.”
Section 11 of H.B. 11, Acts 44th Leg., R.S.
,1935, ch. 174, p. 427, pFovidea:
"All permanent buildings to be erected
,ln the City of Dallas for ,the Central
. ., I
hereby
ite of
the Cerlt;etM.al Central kpositlon in the
City of Dallas in a&olBdance with plans
and spec i~t’ictit! ens a~p1~1~oved by’ the Texas
Centennial Cetitr,:ri Expositibn, and on land
the title to wht!:), shall be in the State
of Texas. The Texas CentetYnial Oentral
Exposition shall have the right to, pos-
sessiop of, and the free use and occupancy
of+ the said buildings for the duration of
ttie Central Exposition; provided, however,
that the aforesaid buildings and the land on
which they will be situated are hereby leased
by the State of Texas to the City of Dallas
for a period of twenty (20) years, commenc-
ing at the termination of the Central Exposi-
tion, at a rental of One Hundred Dollars
($100) per year for said’ buildings, payable
annually in advance. , . ,’
On October 15, 1935, the City of Dallas ia-
sued a warranty deed on a tract of land situated In
Dallas to the State of Texas upon which the Texas Hall
of State was built. Vol. 1920, page 397 of the ~Deed
Records of Dallas County, Texas.
On February 25, 1938, pursuant to the pro-
visions of H.B. 11 of the 44th Legislature, the State
of Texas acting’through the Board of-Control leased
the Texas Hall of State to the City of Dallas for a
period of twenty year,?,. This lease contract provided
in part:
‘“The City of Dallas covenant’s z&d agrees
that during the term of this lease, aaid’6Uilkii
ing, furnishings, and equipment’ sh~all .be us’ed’
only foe public purposes; inclkding annual
State expositions; and that such building
shall not, be maintained or operated for pur-
poses of private profit; that there shall be
no charge imposed upon any exhibitor ifi any
of said buildings for exhibit space, and
that there shall be no admission charge
for entrance into such building.”
The City of Dallas is merely a lessee of
the State by virtue of H.B. 11 of the 44th Leglila-
ture and not an agent or trustee. for the State. There-
fore, it Is our opinion that M&State Board of Control
Hon. C; H. Cavness, page 12 (V-1443)
is the agent of the State in possession of the Texas
Hall of State property and is required to keep the
property records, account for all property owned by
the State In its possession, and file such reports
as direc’ted by the Comptroller.
SUMMARY
House Bill 53, Acts 52nd Leg., R.S. 1951,
ch. 356, p. 602 7Article 6252-6, V.C.S.), estab-
lishing an accounting system for state property
is applicable to the Texas Hall of State, San
Jacinto Memorial Tower, Battleship Texas,
French Embassy, Alamo, and the Old Land Of- ’
fice Building, all of which property is owned
by the State of Texas. The groups or*asso-
clatlons in possession of these state prop-
erties are “agencies” of the State as that
term Is defined In H.B. 753, and are, there-
fore, required to keep the property records,
account for all State property in their POS-
session, and file such reports as directed
by the Comptroller of Public Accounts, as
provided in H.B. 753.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
E. Jacobson ’
Reviewing Assistant John Reeves
Assistant
Charles D. Mathews
First Assistant
JR:lllh
..