I
R-62
T%ZE A NEXRAI.
.OFTEXAS
March 3, 1947
Eon. Arthur B. Knickerbocker
Adjutant General of Texas
Austin, Texas Opinion No. V-60
Re: Authority of the Adjutant Gen-
eral to cause to be offered
for sale buildi-s and/or e-
quipment received rrom ths
United Stat88 GOVerMI8nt
ill
lieu of or dan-
restoration
age8 to leased prqperty, and
to Us8 the proceeds or such
sale to accomplish the phgs-
ical restoration of property,
damaged while under lease to
the United States Government
Dear 8ir:
k,
.. Reference is made to your latter addressed to
the Attorney General under date of January 9, ~1947, con-
cerning the fOlloWiI@ questions:
“(a) Does the Adjutant General hare the au-
thority to cause to be offered for aale, in the
manner prescribed by law, such buildings, instal-
lations and 8qUipment~received frOm the Federal
Government in lieu of restoration or damages to
leased property, as are not required for use by
the State, in a valw comparable to the eetimat8d
oost OS the repair and/or rertoration of the
buildings and installations which are to be ra-
talned for the us8 of the State?*
“(b,) If the enswer to (a) above is in the
litlrmdtlve, may the proceeds of such sales be
dsposited with the Treasurer 0r the state of Tax-
as, to be expended for the repair, restoration
8nd Improvement or Camp Hulen, Camp Walters and
Camp Mabrg, with the object of’placing thoe8
armps in such cwdition as to be beat uaeabls
ior the purposes of the State, in connection
with the administration and training of the Tsx-
a8 National Guard?*
,
Han, Arthur B. Knickerbo,cker,Page 2, V-60
We will consider the questions in the order
presented by your letter.
It is settled as the law of this State that
*public officers and governmental and administrative
boards possess only such pcwers as are sxpressly cone
terred upon them by law or necessarily implied fr8m tbs.
powers so conferred.,” 34 Tsx. JuQ,, Seotien 67,Page 440L,
Further, *statutes which prescribe and limit
the exercise of official duty are sttictlg construed in
respect to the $owers cenfsrred and the manner of their
exercise, and ruch powers are not to be enlarged by con-
structlon.w ‘34Tex. Jurb, Section 68, page 443.
“It is equally well settled, however, that a
Isw which confers a power or imposes a duty upon an of-
ficer or board carries with it by implicatien the author-
ity to do suoh things as are reasonably u8cessary to car-
ry into effect tllrpower grant8d or the duty imposed,”
34 Tex. Jur, I)Seotion 68, Page 444.,
lThe~efPice of the Adjutant General is a crca-
tme Oithe law. The duties and oowors of the DerSOn
holding such office are also defined by law,” *ox%
Worth Cavalry Club, Inc. v. Sheppard, Comptroll~S3
9. w. (2) 660,666.
A review of ArticlW 5787, $788, 5790, 5791,
5792, 5793, 5794 and 5798, Vernon’s Annotated Civil
Statutes, indicates 8ame are p8rtinent in dotermining
the powers expresslf conferred upon Ohe Adjutant Gen-
e-1 by statute. We deem it uanecessary, and in the
interest of brevity, we wit2 not quote all of the above
referred to arti8les s However, the first paragraph of
Article 5790 is espec&r%iy important in determining the
questicn at hand, and we quote therefrom:
“The Adjutant General ehall be ?n control
of the military department of this State, and
subordinate only to the qovernor in matters per-
taining to said Department, or the military forces
of this State; and he shall perform such duties as
the Governor may Prom time to time entrust to him,
relative to the military commissions, the military
forces) the military stores and supplies, or to
other mstters respecting military affairs of this
State; and he shall conduct the business of the De-
partment in such manner as the Governor shall direst,
Hon. Arthur B. Knickerbocker, Page 5, V-60
He shall have the custody and charge of all books,
records, papers, furniturs, fixtures and other prop-
erty relating to his Depatiment, and shall perform
asnsaras oraaticable. such duties as nertafn to
the Chief 'ofStair, the Military Secretary and other
Chlers of Starr Departments, under the regulations
and customs of the United States Army." (Emphasis
supplied)
A oareful study of the articles just referred
to fails to reveal any express language contained there-
in, authorizing the Adjutant General to sell property,
By the terms of the statute, the Adjutant General's ex-
pressed powers and duties with respect to property are
limited to *custody and charge."
Further, construction of the above statutes,
together with departmental Appropriation Act (Acts 1925,
49th Leg. Ch. 378, p. El01 leads to no logical deduction
that the Adjutant General has implied powers, within the
reasonable limitations of such Appropriation Act, to sell
property belonging to the State, which will not be re-
quired for use by the State.
We oonclude, therefore, that the Adjutant Gen-
eral has neither express nor implied power to sell any
property belonging to the State which shall not be re-
quired for use by the Adjutant GeneralPs Departmenta
Article 666, Vernon's Annotated Civil Statutes,
1925, provides for the disposition of ell State property,
when it shall become unfit for use or shall be no longer
needed by any State department. We quote this article:
"All property belonging to the state, re-
gardless of where it is located, under the control
of any department, commission, board or other
state agency, with the exception of state eleemos-
ynary institutions, colleges, and institutions of
higher learning, when it shall become unfit for
or shall be no longer needed, shall be
zzded under the jurisdiction of the Board of
Control, and the Board of Control shall sell such
roperty after advertising it not less than four
P4) days in a newspaper in the county wherein the
property is situated. Provided, however, that if
no newspaper is published in the county wherein
the property is situated, notice of safd aale
setting out the time and place of sale and the
property to be sold shall be posted in three (3)
Han, Arthur B. Knickerbocker, Page 4> V-M
public plaoes, one being in the court heuse in the
county wherein the property is situated. Provided,
however, that if the value of euoh personal prq~
erty is less than One Hundred (#lOCOOO) Dollars and
not suffioient to justify the coti of advertisement
in newspapers as outlined above, the Board of
Oontrol may sell 8uah property in any manner
that it deems for the best interest of the .etatep
The money from the sale of suoh property, less the
expense of advertising the sale, shsll be daposited
in the State Treasury to the credit of the Oeneral
Revenue Fund e And provided further, that any prep-
erty pLaoed in the hands of the Board of Control,
as outlined herein, msy be transferred by the Board
of Contrml to any department, commission, boar6 or
state agency in need of same, and the deblt and
credit shall be made en the basis that suah prop-
erty can be purchased in ths market at the time of
the transfer, if a market @xi&s9 gnd if not, at
its actual or intrinsfe value as set by t-heBoard
of ControL. The Bosrd of Control shall make a
written report to the Comptroller after each sale*
The report shall fnolude the following items;
*1. Mame of the newspaper and the dates of
advertisement of notice of sale; or if posted, the
date and place of posting0
“2, Each article reoeived0
“30 The price for which each article was sold,
-4, The name and address of the person to
whom each article was sold,
“This report shall be signed by the Board of
Control and a member of the department) oommissfrn,
board or state agency having oontnol of the property
before saleO”
Generally speaking, the word or words *property”
or “all property” is “nomen generalfssfmumn sna includes
both real and personal preperty D See: Words and Phrases,
;;c$ 34, po 405 to 408; Womaok v. Womaok, 172 SoWa (2)
Notwithstanding th‘fsgeneral rule, it is our opin-
ion’that the intent of the Legislature, whioh shall gov-
ern In the construction and interpretation of statutes,
was to make Article 666, supra, applicable only to per-
sonal property, The bases for this conclusion are three-
iold, to-wit:
Hon. Arthur B. Knickerbocker, Page 5, V-60
(a) The Legislature, In writing the Act, used
the words “provided, however, that If the value of such
personal iroperty is less than $lOO.OO.v Had the LeF
iature intended that the Article apply to real and pers-
onal property, ana to make the #lOO.OO exceptfon applfca-
ble to personal property, they would, in our opinion,
have used the word *anyv.
(b) In the second place, it appears that Artf-
cle 066, supra, was Intended to apply only to personal
property, because the Legislature used the word “article”
in prescribing the iniorrmtion to be included in the re-*
port of the Board of Control after sale. It is hardly
logical to assume that the Legislature mould have used
Fzyword “article” intending same to apply to real prop-
0
(c) A careful study of the statutes applicable
to the Board of Control Pails to reveal any express or
Implied authority on behalf oP said Bo%rd to execute deeds
of oonveyance, transferring the title to real property,
Title 20, Vernon’s Annotatea Civil Statutes, 1925.
It is our opinion, therefore, that under the
provisions of Artiole 666, supra, the Adjutant General
.is authorized to place surplus personal property under
the oontrol of his department, under the jurIsaictIon
of the Board of Control, for disposal or sale in aooora-
ance with the provisions of this article.
This brings us to the question of whether or
not the examples of surplus buildings and equipment enum-
erated on Page 2 of your letter, above cited, shall be
oonsidered as real or personal property* It Is our under-
stanaing that, under the terme of the leaps wfth the Fed-
eral Gove ent , any bufldings erected by the Federal
Governmen* ere to remain the property of the Government
and oould ‘be removed by the Government at the expfratfon
of the lease oontract.
It is our opinion, however, that when this prop-.
erty Is conlieyed by the Federal Government to the State
of Texas I It beoomes the State’s property for all purposes,
and the agreement by which this property maintained fts
oharacter as personalty Is no longer effective. The ques-
tion, therefore, of whether the property listed on page
2 of your letter is personalty or realty In the hands
of the State must be determined by the general rule of
law applicable to ffxtures. “It Is a general rule that
?
Han, Arthur B. Knickerbocker, Page 6, V-60
whatever is fixed to the realty thereby becomes a part
of the soil and partakes of all its incidents and prop*
ertiesen 23 Ter. Jur, p6 375. “According to a leading
decision, the true criterion for determining whether a
ohattsl has become an immovable fixture consists in the
united application of the fallowing tests: First, Was
there been a real or constructive annexation of the ar-
ticle in question to the realty7 Second, Was there a
fitness or adaptation of such article to the uses or
purposes of the realty with which it is comneated? ThiHa
Was it the intention of the party making the anieration
that the chattel should baoome a permanent acoession to
the freehold?” 19 Tex. Jur. p0 707.
In the instant case tho intention of the Fed-
eral Government at the time the improvements were made
was that such improvements should remain personalty and
be subject to removal as long as they were owned by the
Federal Government 0 However, the transfer of these fm-
provements to the State of Texas will effect a relin-
quishment of this contra& right and since the State of
Texas will own both the land and the improvements, there
is no provision in law or an outstanding right in any
third party which will prevent the improvements, which
are in fact ~annexed to the realty, from baaoming in law
a part of the land. The faot of being annexed has the
effect in law ot making an improvement a part of the re-
alty, unless there is some agreement, expressed or ir-
plied, between the Owner of the realty and the owner of
the improvement whioh bfnds the parties to consider the
improvements as personal property. 19 Tex. Jur, pQ 715,
36 O,J,S. po 917, “The building is deemed to be person-
al roperty during the life of the lease and becomes
reaP estate upon the expiration or surrender thereof
without removal .,* 22 American Jur, pa 702, In Glasgow
v0 John Hancock Mutual Life Insurance Corn7 ny
(2) 888, at page 892, affirmed 141 S. W. ft,);4:t7t9hew D
Court of Civil Appeals said:
“Appellants also assign error on the Potion bf
the trial court, ip forecllosingthe deed of trust
lien on the house and garage on lot seven (7)whioh,
according to +he evidence and findings of the Jury,
was the separate property of Mre, Glasgow, placed
upon the land subsequent to the creation of the lion
indebtedness, a occupied by her as her home* It
is doubtful whet
“%er the evidence sustains.the find-
ings of the Jury; be that as it may, the improve-
ments were on the lot at the time the ,insurance corn-
pany extended the deed of trust lien on the property;
-
1
I
.
.
Hon. Arthur B, Knickerbocker, Page 7, V-60
the company had no knowledge of the existence of
the wife's ownership of the improvements, separate
and distinot from her community interest in the
realty; she and her husband were living on the prop-
er+4 s and the improvements were permanent fixtures
thereon. The house and garage being permanent fix-
tures on the land, merged into the realty, and be-
oame a part of it; there?ore, the trial court cor-
reatly held that the improvements wore subject to
the lien indebtedness,w
What is or is not personal property will depend
in each instance on the physical fact of whether or not
it.is annexed to the realty. 36 C,J.SO 900, The Adgu-
tant General has authority to declare the personal prop-
erty surplus and by surplus is meant that property which
Is surplus to the needs of the department for carrying
on the purposes for which such camp or camps were trans-
,ferred to the State of Texas. The authority of the Adg-
utant General is limited to placing such surplus person-
al property under the jurfsdictfon of the Board of Con-
trol for disposal or sale in accordance with Art. 666,
supra.
The improvements, whioh the Federal Government
proposes to transfer to the State and which are annexed
'to the realty at Camp Hulen, Camp Walters and Camp Mabry,
nillbeoome by reason of such fact a part of the realty
and can be disposed of only by the Legislature passing a
law to that erfeat.
With regard to your question (b]o above quoted,
we think the language of Art, 666, supra, is too clear
and unequivocal to admit of any other construction than
that the proceeds realized from the sale of personal prop-
erty under such statute shall be deposited with the State
Treasurer to the credit of the General Revenue Fund. our
answer to this question, therefore, is in the negative,
SUMMARY
--
1. The Adjutant General of Texas has author-
ity to place under the jurfsdictfon of the Board of
Control for disposal or sale, pursuant to Article
666, Vernonps Annotated Civil Statutes, surplus
personal property at Camp Hulen, Camp Wolters and
Camp Habry, which has become unfit for use or is
no longer needed for carrying on the purposes for
which such camp or camps were transferred to the
State of Texas0 If such property is sold, the pro-
ceeds shall be deposited with the State Treasurer
to the credit of the General Revenue Fund.
Hon. Arthur B. Knickerbocker, Page B9 V-60
2” The Adjutant General of Texas does
not have authority to declare real_property
as surplus and the Board of Control does not
have authority to sell real property belong-
ir~Eto the State of Texas9 under the authority
of Art. 666, Verneups Annotated Civil Statutes,
The buildings, installations, equipment and
other property s considered personal ropertyTp
constructed by the Federal Governmene on Camp
Hulen, Camp Walters and Camp Mabry during the
war’, and which it is contemplated will bo oon-
veged to the State, will become ffxtures at
that time, If they are annexed to land at the
time of the transfer, and such improvements
cannot then be sold without an Aat or the Legfs-
lature to that effect,
Yours very truly
A!Fl’OBltEYGENERAL OF TEXAS
-Charles E, Pratt
Assistant
APPROVED MARS 3 9 1947
/I
2fc.L.Qi$iLdd
ATTORNEY GENERAL