R-46
THE Amro NEYGENERAL
TEXAS
Jan. 30, 1947
Hon. Arthur B. Knickerbocker Opinion No, V-46
Adjutant General of Texas
Austin, Texas Re: Appropriate agency to
accept title to site for
Texas National Guard
Armories.
Dear Sir:
Reference is made to your letter of January 2, 1947, con-
cerning the following questions:
(a). “Is the Texas National Guard Armory
Board the appropriate State agency to accept
the fee simple of property destined to be the
site of the armory of the National Guard Unit
stationed at Kerens ? sl
(b), “If the answer to ““(a)” above is in
the negative, what agency of the State of Texas
has the authority to accept title for the pur-
poses described above, *
The facts recited in your letter above referred to indicate
that several public spirited citizens of the City of Kerens desire to
donate a certain tract of land described therein as “20 acres of land
out of ,the M. Auky Survey, Navarro County, Texas, as sold by W.
E. Towle, et ux to E. H. Gray, G. M. Shatman and H. W. Hofber,
Trustees, on November 6, 1946” to be used as a site for a National
Guard Armory for the Unit stationed at Kerens.
While it is recognized by our courts that the State of Tex-
as has the right and power to acquire and use property, in the ab-
sence of constitutional restriction, (Langdon v, State. Ct. of Cr.
App.. 117 S.W. (2d) 780; King v. Sheppard, 157 S. W. (2d) 682, writ
of error ref.), it is our opinion that Article 5890b. Vernon’s Anno-
tated Civil Statutes, is controlling of your question, This Act cre-
ated the National Guard Armory Board, having been passed by the
Forty-fourth Legislature, as Chapter 184. p0 462, Acts 1935; was
amended by the Forty-fifth Legislature, Chapter 366, Acts of 1937.
and later amended by Acts, 1939, 46th Legislature, page 487, Sec-
tion 1. The provisions of this article applicable to your question
No. 1 are quoted as follows:
Hon. Arthur B. Knickerbocker - Page 2 v-46
“Sec. 2. The Board hereby created shall be
and it is hereby constituted a body politic and
corporate. It shall succeed to the ownership of
all property of, and all lease and rental contracts
entered into by. the Texas National Guard Ar-
mory Board that was created by prior statutes
and all of the obligations contracted or assumed
by the last mentioned Board with respect to any
such property and contracts shall be the obliga-
tions of the Board created by this Act, With this
exception, no obligation of said former Board
shall be binding upon the Board hereby created.
It shall be the duty of said Board to have charge
of the acquisition, construction, rental, control,
maintenance and operation of all Texas National
Guard Armories, including stables, garages, rifle
ranges, hangers and all other property and equip-
ment necessary or useful in connection therewith,
and the, said Board shall possess all powe~rs ne-
cessary and convenient for the accomplishment of
such duty, including, but without being limited
thereto, the following express powers:
“(f) To acquire, by gift or by purchase, for
use as building sites or for any other purposes
deemed by said Board to be necessary or desir-
able in connection with or for use of units of the
Texas National Guard, property of any and every
description, whether real. personal or mixed, in-
cluding, but without limitation on the foregoing,
leasehold estates in real property, and hold, main-
tain, sublease, convey and exchange such property,
in whole or in part, and/or to pledge the rents, is-
sues and profits thereof in whole or in part; also.
to acquire, by gift or purchase, or by construction
of the same, furniture and equipment suitable for
Armory purposes and to hold, maintain, sublease,
convey and exchange such furniture and equipment,
in whole or in ,part.
“(g) To construct buildings on any of its real
property, whether held in fee simple or other-
”
wme, e o o
As previously commented upon in our opinion No. O-5695,
addressed to you, this Act, as amended by the 45th Legislature in
1937, was before the Supreme Court in the case of Texas National
Guard Armory Board v, McGraw, 126 S. W, (2d) 627, and the con-
stitutionality and validity of same were upheld. In the last above
Hon. Arthur B. Knickerbocker - Page 3 V-46
cited case, the relator, Texas National Guard Armory Board, and
the respondent, McGraw, Attorney General of Texas, agreed to
certain pertinent facts relating to the case:
“(i) That,the said buildings are to be con-
structed on sites of land deemed adequate by
the Board for ,the purpose, which sites either
have already been, or wfl3 be prior to the begin-
ning of constiuctien there*, donated to or oth-
erwise acquired by the Boardmerscoring
supplied)
*(j) That a considerable tiunbcr of such
donations will be made by fndividnals or groups
of individuals having no publio status, but some
of such donations eithc~r have been or will be
made to the Board by the municipal corpora-
tions within whose territorial confines, or near
whose territorial boundaries, such sites are la-
cated; the conveyance of such sites to transfer
to the Hoard a fee simple title in some instances,
and m other mstances a leasehold for a term of
ninety-nine years, which shall require no pay-
ment on the part of the Board of rental or taxes, -
the expressed consideration being the construction
of buildings.” (Underscoring supplied)
The Attorney General qtiestiontd the constitutionality of
the above Act on several grounds, none of which involved the ques-
tion or the right of the Board.to receive fee simple title to land by
donation or gift from individuals or’groups of individuals having
no public status.
Mr. Justice Sharp, writing for the majority of the Court,
used the following language:
“The Board is authorized to require sites
for Armory purposes by gift or purchases s . **
On the question of the Board holding title to property, we
think the opinion of Justice Critx, concurring in part and dissent-
ing in part in the McGraw case. supra, is very appropriate, and
we quote as follows:
“The Board acquires property in its name
as such. The Board rents the property acquired
by it to the State, by making rental contract with
another State agency, the Adjutant General, On
such lease contract the Board issues bonds,
Hon. Arthur B. Knickerbocker - Page 4 ,V-46
secured by the rents to be paid by the State.
When the bonds are all paid, the properties
held by the Board become, as a matter of law,
the property of the State. Under such a law,
while the Board holds the legal title, such titlt
holding is a pure fiction. 0 . .”
The language as used in Section 2 (f) and Section 2 (g),
Article 5890b, quoted above, although changed slightly from the
language of the 1937 Act, which was before the Supreme Court in
the M&raw case, supra,,contains no material change with re-
spect to acquiring of property by the Texas National Guard Ar-
mory Board!:-
We conclude the Texas National Guard Armory Board is
the appr6priate Statt Agency to receive fee simple title to the
proptrty cbstihkd to be the site of the Armory of the National
Guard Unit stationed at Kerens.
In view of our affirmative answer to question (a), we
deem it unnecessary to answer question (b).
SUMMARY
The National Guard Armory Board is the
proper State Agency to accept on behalf of the
State .t@e fee s3mple title to land donated to the
State by private citizens to be used as an ar-
mory lite by the Texas National Guard. Arti-
cle 5890b, Sec. 2, subsections (f) and (g), Ver-
non’s Annotated Civfl Statutes.
Yours very truly,
ATTORNEYGENERACOFTEXAS
BY
Charles E. Pratt
Assistant
CEP: bt: sl
APPROVED
OPINION COMMITTEE
BY BWB
CKAfRMAN
ATTORNEYGENERALOFTEXAS