Untitled Texas Attorney General Opinion

April 26, 1951 Ron. Lerry 0. cox Executive Director Board for Texas State Hospitals and Special Schools Austin, Texas Opinion Ho. V-1170 Re: Authority of the Board to place permanent improve- ments upon land held by the State subject to mineral re- servation and conditions subsequent. Dear Sir: Your request for opinion reads in part as followe: “The State of Texas, acting by and through the State Board of Control while it WUB edmlnieterlngthe State hospital esetem, acquired title to eev- era1 yqccee of real estate which were conveyed to the State of Texas nith re- strictions as to use. One tract of land which was conveyed to the State was Camp “,~I;I~ which consists of 2,369 acres . At the present time this Board maintains and operates a tuberculosis sanatorium on the property. On July 28, 1948, the War Assets Administratorcon- veyed by deed, without warranty, to the State of Texas the 2,369 acres of land. The deed contained the following con- ditions eubaequent: Hon. Larry 0. Cox - Page 2 - V-1170 "1. The Federal Governmentretaln- ed all mineral rights. "2. That for a period of twenty- five years from the date of the .lnetrumentthe State will not resell or lease the prop- erty without first obtaining the written approval of the War. Assets Administration. “3. During 'nationalemergencies "' the Federal Government Is en- titled to full unrestricted, use, ,controland possession of the property, 'orany part thereof, Including additions or Improvementsmade by the ,Stete ., of Texas. ..' “4. :+he property Is to be used for a.tuberculosishospital and eanatorfum,and no other purpose, for a period of twenty- five years, II . . . "We have a very similar situation existing at the Weaver H. Baker Memorial TuberculoefsSanatorium at Mission, Texas. This Installationwas once Moore Air Field, and the grantors of the real property were the cities of Edfnburg, Mission and &Allen. The date of the +ed Is November 5, 1947. The mineral rights are retained by the grantors, and the conditions subsequentare exactly the same except that they expire at the end of a ten year period instead of a twenty-fiveyear period. "In addltlon to the two above mentlon- ed Installations,this Board Is operating . 325 Hon. Larry 0. Cox - Page 3 - V-1170 and maintaining the Victory Air Field at Vernon, Texas. There la only one re- striction ln the deed to the Vernon property. This property was conveyed to the State of Texas by the City of Vernon so long as the property la used for a publtc State purpose.” After making the foregoing statement, you re- quest our opinion as to whether your Board has authority to place permaneht Improvementson tracts of land which have been conveyed to the State subject to the reserva- tions and conditionssubsequent described In your letter. The authority of a State agency to acquire real estate, the title to which neceeeerIly vests In the State, Is dependent upon the will of the State expressed through Its legislature. The authorizing legIelatlon Involved here la set forth In Senate Bill 147, Acts 50th Leg., 1947, ch.44, p.58 (Art.3251a,V.C.S.) which provides: “Section 1. The State Board of Con- trol is hereby authorized to negotiate for and to acquire from the United States Govern- ment, or any agency thereof, or from any source whatsoever, by gift, purchase, or lease-hold, for and on behalf of the State of Texas, for use in the state eleemoeynary service, and In the establishmentof state tuberculosissanatoriums,any lands: bulld- Qw, and facilitieswithin the State of Texas, and any personal properties wherever located, and to take title thereto for and in the name of the State of Texas. “Sec.2. The fact that the State of Texas can acquire surplus property, both real and personal, from the United States Government,and Its several agencies, and can acquire such property by gift from pa- triotic and public spirited titles, coun- ties, and individualcitizen%, and can ac- quire such properties by purchase at nominal . I . Hon. Larry 0. Cox - Page 4 - V-1170 cost, for use In the state eleemoeynary service to the great Improvementof pub- lic health and the advancement of public educatiod, and can, by acquiring such property establishgreatly needed tube& culoele sanatoriums,and the fact that tuberculosisIs a co%miunlcable and ln- fectloue disease prevalent In South Texas and In East Texas, constitutinga menace to the general health and welfare of all. the people pf the state, creates an emer- gencg. . . The East Texas State TuberculosisSanatorium occupies the Camp Fannln property and was created by Acts 50th Leg., 1947, ch.344, eec.16, p.679 (Art.3254d, V.C.S.). This Act was amended by Acts 51et Leg.,R.S. 1949, ch.207, p.389, but the only change was to ellm- lnate the restrictionof sanatorium use to white per- eons. The Act ~,ofthe 50th Legislatureprovides: “There 1% hereby created the lEaat Texas State TuberculosisSanatorium’for tubercularwhite person%. As the Board of Control Is able to %ecure sufficient buildings and equipment to establish such tuberculosissanatorium, the said Board la hereby authorizedand directed to re- condition and re-model %ame as may be necessary -toestablish a Sanatorium for white pqreone only, to be known and deelg- nated as the ‘East Texas State Tubercu- losis Sanatorium’.I’ The Weaver H. Baker Memorial Tuberculosis Sanatorium occupies Moore Field end was created by Acts 50th Leg., 1947,ch.330,p.607,wherein It is pro- vided: “There Is hereby appropriatedfor the fiscal year ending August 31, 1948, the sum of Five Hundred Fifty Thousand ($550,000.00)Dollar% for the conver- sion and securing of title to Moore Field Hon. Larry 0. Cox - Page 5 - V-1170 near Mission, Texas, In accordance with Senate Bill No. 147, Acts of Regular See- ‘alon, 50th Legislature, 1947; and eetab- llahlng the Weaver H. Baker Memorial Tu- '. berculoele Sanatorium. In the event. Moore Field cannot be secured the Board of Control shall have authority to ee- tablleh said Sanatorium at such other place as the Board of Control may direct. For the fiscal year ending August 31, 1949 the unexpended balance of Five Hun- dred Fifty Thousand ($550,000.00)Dollars Is reappropriated for conversion. For the fiscal year ending August 31, 1948,~there, 1% appropriated the sum of Three Hundred Ten Thousand ($310,000.00)Dollars to the Weaver H. Baker Memorial TuberculosisSana- torium for salaries, operation,support, maintenance, general lmprovemente,re- pairs and contingent expenses. For the fiscal year ending August 31, 1949, there Is appropriated Six Hundred Thousand ($~OO,OOO.OO)Dollars for %alarles, opera- tion, support, maintenance,general lm- provements, repairs and contingentex- penses. . .' The Victory Air Field was accepted by the 51st Le lelature (Acts 51et Leg., R.S.l$Q,ch.553,sec.25,p. 108 5) under this language: "The Board Is hereby authorized to accept from the City of Vernon the buildings and land formerly used as an air field for the eetabllehmentof a State Hospital." The nature or extent of the title to be ac- quired by a State agency Is dependent upon the In- tention of the Legislature. If the authorizingAct provides for the acquisition of "full fee simple title", or "good and merchantabletitle", or u%es 328 Hon. Larry 0. Cox - Page 6 - V-1170 other language which may tend to show a particular Intent with respect to the type of title to be ec- qulred, then title should be acquired accordingly. The authorizing legIelatlonhere simply states that the Board Is authorizedto “negotiatefor” end ac- quire “by gift, purchase, or leasehold, . . . any land%, buildings, and facllltlee . . . and to take title thereto for and In the name of the State of Texas.” The emergency clause la predicated In part upon the fact that the State “can acquire surplus property, both real and personal, from the United States . . .’ at a nominal coat. The provleIone of this Act are quite broad and, to our minds, have the effect of delegating to the Board the authority to negotiate for, end within its discretion acquire, the beet title obtainable. We call attention to the fact that the Act anticipatedecquleltlonof surplus ,propertleefrom the United States at a time when the Federal Governmentwas making all conveyance%of these properties subject to the same reservations i and conditions as those set forth In the deeds to the State. Doubtless, the Legislaturehad knowledge of this practice and drew the Act as broad as It did with this In mind. In an opinion by this office dated Febru- ary 19, 1936, addressed to Hon. T. 0. Walton, Preel- dent of A. & M. College (Att’y Gen. Opa.,Book 370, p.319), It Is stated: I,. . . Insofar as acquIeltlonby sale Is concerned,the Legislature,lneo- far as this writer has been able to dle- cover, has never made any apeclflc regu- lation. The Legislaturehas merely provl- ded that the Board of Directors shall have the power to purchase land. The only re- striction being that the conveyancesshall be ~approvedby the Attorney General as to form. From a study of the foregoing artl- clee, the legislativeIntention to leave the manner of acquiring lands, Including the matter of mineral reservationby the grantor within the broad discretion of the Hon. Larry 0. Cox - Page 7 - VL1170 s Board of::DIrecbore, la quite dlearto the writer. Therefore, It Is the opln- Ion of this writer, end you are accord- ingly advised that the'Boerd of Directors of the AgriculturaldcMechanical College of Texas does haye,',thelegal.authorItyto acquire lands.for use as~experlmentalsta- tlona,71th a,mIneraJ reservaflon to'the grantor. However; It 1% euggeetdthat the Board ehcu~dexercI%e it% .dlecretlon' In this matter wlth‘a ti,ewto the type of land sought to be acquired, the use to which,It 18 to be6%ubject,e~d,~,the permati of the Improvement%to'be placed ~thereoni the de%.lrabllIty,,'o.f @tires cpdrol,'bf,~~t~~ Iahd'In case :of:future.mlneral:.dyv,eIop-' merit,; and other mattere',ofequal.Impcr-~ tande. ,Wlththi~%~~lnmind ~lt:le ,a matter wholly within,the .dl%,cre-tlon,ofthe Bo.a,rd whether It wlllYbe 'goodbusiness to ac- quire any land where the grantor desires to retain all or part of the minerals. . .I' It has be~en. held in County School Trustees of 'UpehurCounty,~v.Free',134 S.W.2d 935 (Tex.Clv.App.,lggl, error ref.w.o.m.~),that school trustees may exclude the mineral estate from a condemnationsuit and acquire only the surface,,even though the statute provides for con- demnation of the fee simple title. In our opinion, the Board of Control acquired titles which it could legally acquire. Therefore, as to the tract% of land here Involved, there Is nothing In- herent In the titles by reason of the reservatloneend conditionswhich would prevent their use for permanent Improvementswithin the sound dl%cretlon of your Board, and subject to proper appropriationsbelng made there- for by the Legislature. Your request does not present the question of the legislative intent with respect to permanent con- struction on the above mentioned tracts of land as re- flected by the various appropriationbills enacted subse- quent to the date such land was acquired by the State.ThIs 330 Hon. Larry 0. Cox - Page 8 - V-1170 Is a matter upon which we exprecreno opinion. SUMMARY Under an Act authorizinga State agency to acquire title to surplus prop- erties of the United States and others through gift, purchase, or leasehold, such agency Is authorizedwithin Its sound discretion to accept title subject to a mineral reservationand certain con- ditions subsequent. Consequently,the reeervatlonand conditionsdo not In themselvesprevent erection of permanent Improvement%on lands thus held. The ad- vI%abllIty of making such ImprovementsIs a matter within the discretion of the Board, subject.to legislativeapproprla- tlon. Yours very truly PRICE DANIEL Attorney-General APPROVED: Jesse P. Luton, Jr. Reviewing-Assistant Charles D. Mathews First Assistant