GROVER SELLERS AUSTIN II.TEXAR
Honorable Walter F. Woodul
Member, Board of Regents
Stephen F. Austin State Teachers College
Chronicle Building
Houston 2, Texas
Dear Mr. Woodul: Opinion No. o-6911
Re: Power of Board of Regents to
make long term lease of College
land at Nacogdoches for purpose
of acquiring athletic and rec-
reational facilities for Stephen
F. Austin State Teachers College
We are in receipt of your opinion request which
reads as follows:
"At the Stephen F. Austin State Teachers
College is no adequate football plant or athletic
field. What the college has been using is worse
than nothlng and does not even come up to the
lowest grade school athletic field. Neither does
the college have a swimming pool or tennis courts.
Due to the fact that the college has none of
these recreational facilities, the attendance Is
not what it ought to be and makes it a very high
cost educational institution.
"At the request of the Board of Regents, I
went to Nacogdoches about three weeks ago and
called upon the local citizens for help. The con-
templated Improvements will cost about $150,000.00.
The local citizens feel that the funds should be
raised by taxation; that the city should issue
bonds and build these improvements. The city can-
not do this unless it owns the land or has a long
term lease on the land on whLch the improvements
are built. The price of local land adjacent to
the college is prohibitive for the city to acquire
it. If the Regents have the power, they are will-
lng to make a long term lease to the city whereby
the cLty will put up the improvements on this land
and the college have use thereof, at a very small
rental, and further providing that as the school
Hon. Walter F. Woodul, page 2 o-6911
grows , it would have an option to pay the city
for the improvements and cancel the lease.
"I see no way to get these improvements
unless it is done this way. Now, the Regents
are given control of the management of the
school but the question has arisen in my mind
as to whether that includes the right of the
Regents to make a long term lease, which Ys
really for the benefit of the school more than
it is for the city, the Regents having the
power to terminate the lease at any time by
paging off the cost of the Improvements. Of
course, the Regents, under contract, would not
lose control of the land that they are LeasIng,
as it would at all times during the term of
the lease be a facility for the college.
"So that we don't get the city to issue
a lot of bonds and then find out that we cannot
make this long term lease, would you mind having
one of the gentlemen in your office to give us
an opinion upon this matter. I hope he ~111
construe the powers liberally and I think the power
to control the school property would reasonably
carry with It the power to make this advantageous
lease to the City, which is in effect merely helping
to get this college on its feet.'
We will discuss your questions under three subdi-
visions, viz:
1. Power of the Board of Regents to make long
term lease with option to purchase Improvements.
2. Authority of the City of Nacogdoches to issue
tax bonds for playground purposes.
3. Authority of City to construct improvements on
leased land.
(1) Relative to the power of the Board to make a
long term lease, we quote from Artfcle 2603~, certain sections
and parts of sections, as follows:
"Art. 2603c, Sec. 1
"That the Board of Regents of the University of
Texas and its branches, and the Board of Directors
of the Agricultural and Mechanical College, and its
Hon. Walter F. Woodul, page 3 o -6911
branches, and the Board of Directors of Texas
Technological College, and the Board of Regents
of the State Teachers Coll.egeand the Board of
Regents of the TexasState College for Women; and
the Board of Directors of the College of Arts and
Industries are hereby severally authorized and
empowered to construct or acquire through funds
or loans to be obtained from the Government of the
Unlted States, or any agency or agencies thereof,
created under the National Recovery Act, or other-
wise created by the Federal Government or from
any other source private or public, without cost
to the State of Texas, and accept title, subject to
such conditions and limitations as may be prescribed
by each of said Boards, dormitories, kitchens and
dining halls, hospitals, libraries, student activity
buildings, gymnasia, athletic buildings and stadia,
and such other buildings as may be needed for the good
of the institution and the moral welfare and social
conduct of the students of such institutions when
the total cost, type of construction, capacity of
such buildings, as well as the other plans and speci-
fications have been approved by the respective
governing boards; . . .
"Sec. 4. Each of said boards is hereby
authorized and empowered to enter into contracts
with munlcipalltles or school districts for the
joint construction of museums, library buildings,
or such other buildings as may be deemed necessary.
"Sec. 6. Upon the acqulsltlon, construction,
or erection of such building or buildings, absolute
control and management shall vest in the respective
board of the institution of the building so constructed
or acquired, subject to any condition that may be
provided in the grant.
"Sec. 7. It is further provided that land
owned by the State or any of said institutions
may be used as building sites and ground for such
buildings acquired under the provisions of this Act.
"Sec. 9. Provided further that each of said
boards may make such contracts as may be necessary;
to properly carry out the provisions of this Act.
We think that the emergency clause of the Bill
originally enacting Article 2603~ stated the purpose or ob-
ject of all legislation on this subject when it provided
Hon. Walter F. Woodul,~page 4 o-6911
"the fact that the Institutions of higher learning in Texas
are in urgent need of buildings that are for the good of the
Institutions and the moral welfare and social conduct of the
students of such institutions, and the fact that there is not
sufficient money in the Treasury,,ofthe State of Texas with
which to acquire such buildings.
In furtherance of this broad purpose, the Leglsla-
ture in an amendment to the original act inserted Section 4
as above quoted. We are of the opinion and can see of no
other reason for enacting Section4 except for the purpose
of enabling the'Board of Regents and municlpallties to enter
into contracts for the benefit of both agencies. The Legis-
lature probably conferred the authority in broad terms know-
ing that any such,contracts wauld be based on different facts
or circumstances at each State institution. The Legislature
enacted Section 4 knowing that in some cases the municipality
would furnish the land and the State and Institution would
furnish the moneg,for the building, or, as in this case, the
State would furnish the land and the municipality would fur-
nish the money for the buildings, andin some cases the
municipality may furnish part of the land and part of the
money and the institution furnish part of the land and part
of the money. In other words, the Legislature conferred broad
authority on the Board of Regents to enter into contracts
with municipalities to engage in a joint construction enter-
prise which the board considered necessary and.beneflcial to
said institution.
.Article 2647, subsection 1, Vetion's Annotated
Civil Statutes grants the Board of Regents of the State
Teachers Colleges with "the general control and management
of all State Teachers Colleges."
In Christopher v. City of El Paso, 98 5. W. (2)
394, 399, the Court had before It the consideration of Article
1269h, which authorizes cities to acquire and construct air-
ports and after such acquisition and construction provides
that the city shall~have control and management of the same.
The City of El Paso:,underits statutory authority to control
and 'manageairports leased the city airport to an individual.
The authority of the city to lease the airport was raised
in said case and on page 399 of the oplnlon the Court stated:
"Upon the question of agency appellants
take the position that under Article 1269h
(Vernon's Ann. Clv. St.) and Section 71 of the
City Charter, the city was bound to retain con-
trol and management of the airport and to per-
form the duties Imposed by the statute. While
Hon. Walter F. Woodul, pege 5 o-6911
Ft is true that both the statute and charter pro-
vide that the airport shall be under the manage-
ment and control of the governing body of the
city and that the city shall have the management
and control of the property belonging to it, we
find nothlnn In either the statute or the charter
which would ‘in any way prohibit the leasing of se
property acauired for airDort purposes and l.tis
our opinion that the cited provisions can have no
bearing upon the question involved." (Under-
scoring ours) .
This is not a case in which the school Is rellnquish-
ing control of a part of its campus to private individuals
for private purposes or purposes foreign $0 the school. On
the contrary, this pp.rtionof the campus Is intended to be
improved by the city for public purposes for the benefit of
students at the College 8s well as other residents of the
city of Naeogaoches. We c,annotsay that this joint plan of
the Clty and College for improving the campus for the public
will amount to an abuse of discretion on the part of the re-
gents or by beyond the scope of their statutory powers of
management and control. See City of Port Arthur v. Young
(Civ. App.) 37 S.W. (26) 385, writ refused. The test as we
see it is whether or not the interests of the public will be
subserved.
You are respectfully advised that it is the opinion
of this department that the Board of Regents of the State
Teachers College is authorized to lease the land in questlon
to the City of Nacogaoches under a long-term lease for the
purpose of jointly constructing buildings considered necessary.
(2) Does the City have power to lssue~tax bonds
for playgrounds, etc. ?
We have been informed that the City of Nacogdoches
is a 'home rule" city, operating under Its own charter. We
have not been furnished with a copy of the city charter and
are not advised as to whether the city has adopted all of the
powers conferred by the statutes relative to home rule cities,
so we do not propose in this opinion to construe the charter
powers of the City of Nacogdoehes but only the statutory powers
relating to home rule cltles. We quote from two paragraphs
of Article 1175:
"Sec. 10. The power to control and manage the
finances of any such city; to prescribe its fiscal year
and fiscal arrangements; the power to Issue bonds upon
the credit of the Cltg for the purpose of making per-
Bon. Walter F. Wooaul, page 6 o-6911
manent public improvements or for other public pur-
poses in the amount and to the extent provided by such
charter and consistent with the ConstitutFon of this
State; ..;.'
380. 15. To have the puwer to appropriate pri-
vate'proper$g for public purposeswhenever'ttie govern-
ing authorities shall deem Ft necessary to take any
private property withIn or without the city limits for
any of the following purposes; city halls, police sta-
tions, jails,-calaboose, fire stations, libraries,
school.houses, high.school buildings, academies; hos-
pLtals, sanltarlums, auditoriums, market houses, re-
formatories, abattoirs, rallroad terminals, docks,
wharves, warehouses, ferries, ferry landings, eleva-
tors, loading and unloading devices, shipping facil-
ities, piers, streets, alleys, parks, highways, bou-
letards, speedways, playgrounds,'sewer systems, storm
sewers, sewerage disposal plants, drains, filtering
beds and emptying grounds for sewer systems, reservoirs,
water sheds, water supply sources, wells, wgter and
electric light systems, gas plants, cemeteries, cre-
matories , prison farms, and to acquire lands within
and without the city for any other municipal purposes
that may be deemed advisable. The power herein granted
for the purpose of acquiring private property shall
include the power of the I.mprovementand enlargement
of the water work, lncludlng water supply, riparlan
rights, stand ptpes, water sheds, the constructIon of
supply reservoirs, parks, squares and pleasure grounds,
public wharves, and landing places for steamers and
other crafts, and for the purpose of straightening or
improvlng the channels of any stream, branch or drain,
or the straightening, widening or extension of any
street, alley, avenue or boulevard. The power of em-
inent domain hereby conferred shall include the right
of the governing authority, when so expressed, to
take the fee.In the lands so condemned and such power
8nd authority shall include the,,rightto condemn pub-
lic property for such purposes.
The Su reme Court of Texas in Lewis v. City of Fort
Worth, 89 5. W. P2d) 975, in construing the charter of Ft.
Worth, the charter having similar wording as the ab~ove-
quoted statutes, held that the city of Fort Worth had au-
thority to spend money raised by the stileof bonds for the
purpose of constructing; equipplng and Improving pleasure
grounds, parks and playgrounds.,
If the chartsr of~the City of Nacogdoches authorl-
Hon. Walter F. Woodul, page 7 O-6911
zes the City to Issue bonds for constructing, equipping and
improving pleasure grounds, parks,,and playgrounds, then,
based upon the above referred to statutes and decision, it
is the opinion of this department that said City would be
authorized to issue tax bonds for said purposes.
(3) Does the City of Nacogdoches have the power
to construct permanent improvements on leased land?
McQuillan on Municipal Corporatlons
"Sec . 1215 , When necessary to promote its
public purposes the municipal corporation usually
is empowered to become the lessee of real pro-
pertg,for the benefit of Its inhabitants. Power
to acquire property implies the power to lease,
or to enter in contract to purchase. . . .'
43 * Corpus Juris. p. 1329: "A municipal
corporation may take a lease of real property for
the legitimate corporate purpose, provided charter
and statutory provisions on the subject are com-
plfea with."
In City of Mission v. Richards, 274 S.W. 269, thee
Court of Civil Appeals held that the City of Mlssion had au-
thority to lease a building for a city hall and fire station.
We have been unable to find any statute or any decision of
the courts of this State prohibiting a city f?om leasing
land for municipal purposes. We do not think it necessary
in this opinion to hold that a Texas municlpallty has author-
ity to construct permanent improvements on leased land, since
we have a statute conferring authority on the Board of Regents
of the State Teachers College and municipalities to enter ln-
to contracts for the joint construction of certain permanent
improvements, and we are basing our opinion on this questlon
solely on said statute. Construing the above authorities
and especially Section 4 of Article 2603~, this Department is
of the opinion that the City of Nacogdoches has authority to
enter into a long term lease contract with the Board of'Re-
gents of the State Teachers College and to construct, equip
and improve pleasure grounds, parks, and playgrounds on said
leased land.
. ;
Hon. Walter F. Woodul, page 8 o-6911
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/R. J. Long
R. J. Long
AssLstant
RJL:BT:wc
APPROVED DEC 12, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
This Opinion ConsIdered and Approved In Limited Conf'erence