Hon. K. L. Berry Opinfun No. V-820
Adjutant Qeneral
Austin, Texas Re: The ownezwhfp of certain
,$&conveyed to Company
llltbRn@neer Regl-
meni, 36th ~Mvislon; Texas
~NatfOnalGuard, by the City
of Ilouston,following re-
organizationof said unit.
Dear Sir:
Your le%Wr~l April 7, 1949, submits a copy
of ~a-deed-d8twd~2zr~P~h?ru1~-the
Cit of Houston to Com-
Pang “F”t lll-th
.~Rngineer
Regiment, 3%th Division, Texas
Natfonal Guard. The deed recites that:
“It~2s-the brtent an&-pwqwm of this
amveymce to~,,vest ..a
-.fWl;ani+cwmpletefee
.timpfe~titleto -%he ahwe described land In
=. .,w,..+,F’ ,..e-baby,- ~-certafn con-
xmamw, xwvwmma -and llmftatlonacontained
in a deed heretofore executed by the aald City
of Houston to the said Company ‘Ft.”
The deed contains certain covenants undertaken by Company
“F’ as a part of the consideration.
You state that the 36th Division hae been re-
oqanlzed, and that the unit formerly known as Company
“F Is to be redesignatedBattery “B , 47th FA Battalion
(obn). You ask:
n the opinion of your office re-
gard& Ch& legality of the ownership of the
property described in the attached deed. It
Is the interpretationof thle office that the
unit of tE6 Texas,National Guard designated
as the successor of Company “P”, 111th Rngi-
neer Regiment, 36th Mvlslon Texas National
Quard, inherits the traditionsand historical
Bon. K. L. ferry - Page 2 - V-820.
aontfntity,a8 well as propertieswhich
may have been originallyowned by Com-
pany nFn. . . .
"Your~opfnfanis'neeessaryto enable
this Department to proceed with plans for
the constructionof an armory on the prop-
erty. a . .'
The copy of the deed furnished does not show
its execution. We do not have a copy of the ordinance
of the City Council of Houston which the deed recites
as authority,nor do we have an abstract of title to the
property. We are unable, therefore, to pass upon the
title conveyed by the deed. Since we do not know the
facts as to the performanceby Company "F" of the cove-
nants recited as part of the consideration,we cannot
pass on the present status of the title conveyed.
Based upon the assumptionsof good title in
the City at the tfme of the deed, no failure of con-
sideratfqn, and~no~~ccmveyance~or
encumbrance by Company
"P" prior to its dissolution,it is our opinion that the
property belongs to the State and 1s subject to control
by law.
Subse~quent%o.theexecution of,the Instant
;;~,;h;&gls~ature~pa~ssed Art. ~5885,V.C.S., in Its
. This.statute Is the only authorfty for
d~onaticms,of lgnd.,by&ties to the Natfonal Guard. See
Arm0 aboardv. ,+k%raw 132 Tex. ,613 126 S.W.Pd 627 638
(1933. The particleabplles to conv&ances before aiidaf-
ter &ts effective date. It provides that the council of
each city or:town in this~State fs authorkzed:
I,
. . e to donate, either in fee simple
or otherwise to the Texas National Guard Ar-
mory Board, or to any one or more of said
,unlts for conveyance to said Board, one or
more tracts of land as sites upon which to con-
struct Armories and other buildings suitable
for use.by such units; and any and all such
donations heretoforemade + . . to any such
adm$nlstratlveunit, either as a corporation
or othgwise, and conveyed or to be conveyed
to said Board, is hereby validated." Art.5885,
V.C.S.
Hon. IL L. Berry - Page 3 - v-820.
The same Legislature amended the National
,GuardArmory Board Act, Acts 1939, 46th Leg. p. 487,
to provide that the Texas National ffuardArmory Board
shall ' . . . have charge of the acquisition,con-
struction,rental, control, maintenanceand operSf-
tlon of all Texas National Guard Armories. . .
and that 'I*. . as and when any of the property' '
owned by the Board shall be fully psld for . e . the
Board shall donate, transfer and convey such proper-
ty, by appropriateInstrumentsof transfer and con-
veyance, to the State of Texas. . . ," Article 589Ob,
V.C.S.
In view of the nature of the State militia
as a governmentalagency (36 Am. Jur.216), we think
that the Intent, purpose and effect of the foregoing
Acts is to vest title to the Instant property In the
State of Texas, subject to control by the appropriate
Walsh v. University Texas, 169 S.W.2d993
:::::'&v. App. 1942, err.ref. ; see 0 Inlon of At-
torney General of Texas No. 6 (19477. This Is the
rule In other jurisdictionsunder similar National
Guard laws. See 29 Opinions of Attorney General of
North Carolina 646 (1947); 1946 OpInIons of Attorney
General of Illinois 134 136. 47 Opinions of Attorney
General of Alabama 172 119471; 1945-1946 Opinions of
Attorney General of Maine 26; 1947-1948 Opinions of
Attorney General of Nebraska 665. It Is common prac-
tfce In Texas and elsewhere for local agencfes of
government to~gcquire titles for the State, either
In their name or In the name of the State. Robblns v.
Limestone County, 114 Tex.345, 268 S.W. 915 (1925);
Articles 6673b and 6674n, V.C.S.; see Opinion of At-
torney General of Nebraska, supra.
Even If we be mistaken that the State took
legal title under the deed, It is certain that the
property In question was held by company "F* for pub-
lic purposes. Scott v. Logan, 122 Tex.636, 646, 64
S.W.2d 141 (1933). The members of the defunct com-
any therefore have no private title therein. 40 C.J.
05; 57 C.J.S.1109. Since Company "F", prior to Its
'=
dissolution,did not exercise what powers of dlsposl-
tion It mlght have had under Articles 5784 and 5797,
R.C.S., we think that the property may be used for
armory purposes by such unItas ,maybe designated by
property authority. Article 5781, R.C.S.; Articles
5790 and 589Ob, V.C.S.
Hon. Ic.L. Berry - Page 4 - v-820.
In order.to simplify the matter, It might be
well for the Texas National Guard Armory Board to take
a deed from the City of Houston.
SUNNARY
Pruperty conveyed by a'uity In
1938, to a unft,of the Texas
Natfonal
Guard no longer In existence because
of reurganlzattonof the,%th Mvision
-maybyeused for~%-rmorypurposesby such
unft aa may be deatgnated by proper au-
Article 5781 R.C.S * Arti-
:::i';~~O, 5685~and 58&3b, Vi:S.
Yours very truly
ATTORNEYGENNRAL OF TJK@
BHR:bt BY ’ Ben H. Rice, 111
Assistant
APPROVED
SL 2d
ATTORNEiYGENNRAL'