Mice oftoeBttornep
daeneral
&tide of &ems
DAN MORALES July 9, 1993
ATTORS‘
GENERAL
EY
Honorable Roland Saul OpinionNo. DM-232
CriminalDistrict Attorney
Deafsmith county lb: Whether the City of Hereford is
235 East Third, Boom 401 autholizedtoconveyrcityparktotheDuif
Hereford, Texas 79045 Smith County Hospital District (BQ-519)
Dear Mr. Saul:
On behalf of the Deaf Smith County Hospital District (the “hospital district”), you
ask whether the City of Hereford (the ‘city”) is authorized to convey a parcel of land to
the hospital district. By way of background, you explainthat the hospital district operates
tbe Deaf Smith General Hospital (the “hospital”)and that adjacent to the hospital is a one
andahalfacreparceloflandownedbythecity. Thepropertywasdeededtothecityto
be used for a park for the benefit of the public. There are no improvements on the
proper@. The hospital district ‘has determined that additional thcihties are needed
and . . . [t]he tract is the only location upon which the ficilities could be constructed in the
manner to best suit the [hospital district’s]needs.” In addition, you state that the hospital
diptriCthasaskedthedtytomakeagiffofthelandtothedistri*,~dthatthedistrict
“anticipates that the [c]ity wig Snd the paramount public use of the property to be the
expansion of the @~]ospitaland will convey the property to the [d]istrict for no cash
consideration.” In essence, you ask whether the conveyance would be prohibited by
section 253.001 of the Local Government Code or article IIJ, section 52 of the Texas
Constitution.
Section 253.001 of the Local GovernmentCode provides in pertinent part:
(a) Except as provided by Subsection (b), the governing body of
a municipalitymay sell and convey land or an interest in land that the
municipalityowns,holds,or&imsasa.. .park.. . .
(b) Land owned, held, or claimed as a public square or park
may not be sold unless the issue of the sale is submitted to the
qua&d voters of the municipalityat an election and is approved by
a majority of the votes received at the election1. . . .
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Honorable Roland Saul - Page 2 @M-232)
(c) To &ect the sale. the goveming body shaU adopt an
ordinanw dire&g the municipali~s mayor or city manager to
exualtethewnveyan4x.
(d)Tbeprowedsoftheulemaybeusedonlytoaquireand
improve property for the pqoaes for which the sold proper was
used. Failuretoaousethepmceeds,however,doesnotimpairthe
titletotbewldpropaty8quimdbyapurhsuforvaluable
wntiide?ation.
Local God Code 0 253.001 (footnote added). Article III, section 52 of the Texas
Conrtitutionproviderthtacityi~luthorized’tolarditsaeditortoIpunpublic
money or thing of value in rid oc or to any individual, asxiation or wrpomtion
whurava.”
ln Attomey Genaal opinion H-108 (1973). this o5ce considered whether a city
could convey parklqd to a state agency undex fhner article 1019. V.T.C.S., a
N- statute to section 253.001 of tbe Loal GovawKnt code. This office
conch&d that the restrictions and procedures set forth in uticle 1019 were inapplicable
‘WhWthCpropoKdgnmWiS3UOtk~ agencyllavingpowersofeminent
domain ova the propeq &oh&,” relying upon KingsviIk In&p. sch. ht. v.
-, 164S.W.Zd49CTar.~N.~.-1~2,writrrfdw.O.m),~~PPPOC~
v. Ci3,ofElPaw, 357 s.w.2d 783 (Tex. CN. App.-El P8so 1962 no writ). Anomey
Gamd Opiion H-108 (1973) u 2-3. SimMy, ia htomey General opinion H-1256
(1978), this office wmidemd whether the Cii of Midhnd could donate a street right-of-
waytoMidhndhmtyunderthes3nuprovision. WithrespecttouticlelOl9,thisof6cc
at.uedthat
govemingbodieswiththepowaofcmhtdomainneednotxcure
the consent of an ekctorate to obtain pmpeaty they need for public
purposes. . . . lfthCeityMdthCCOlUQrgreethUthCparamount
necdisaneedforwurthousehciliti~tbereisnodi5culty. What
MidlandCouqmightdobyreso~towndemnationpmcecdings,it
candobyegmemwtwiththeCiiofMidhd.
Attorney General Opinion H-1256 (1978) at 2 (citations omitted). The opiniw
wncluded, “If the city and the county reach w respecting the paramount public
use of the propaty, and if the exchnge is made for an adequate consideration or to
p. 1203
Honorable Roland Saul - Page 3 (DH-232)
accomplish a prop~ public purpose, we believe a transfer of the property to Midland
County without an election would probably be upheld by the wutts.” Id.
The hospital district has the power of eminent domain. See Acts 1971.62d Leg.,
ch. 59. 5 14, at 671 (Deaf Smith County Hospital District enabling act).l We also note
that the board of directors of the hospital district is authorized to accept donations, gigs,
and endownmts on behalf of the hospital district for hospital, medical and health wre
purposes by section 18 of the enabling act. Acts 1989,7&t Leg.. ch. 874, 5 4, at 3868
(amending Acts 1971, 62d Leg., ch. 59, 8 18. at 673). Therefore, the reasoning of the
foregoing attorney genera) opinions applies with equal force hem. Accordiigly, we
wnchrde that, in orda to convey the park to the hospital district, the city need not adhere
to the procedures set forth in section 253.001.
Although we conclude that section 253.001 of the Local Govemrnent Code is
inapplicable,we believe that a provision enacted in 1985, some years afts the foregoing
attorney genera) opinions were issued, precludes the city from gratuitously conveying the
property. See Local Goti Code Q272,001(b)(6); Acts 1985,69th Leg.. ch. 367, at 1440.
Section 272.001. subsection (a) of the Local Govemment Code generally requires that
b&e land owned by a political subdivisionof the state may be sold or exchanged, notice
of the land for sale or exchangemust be publishedand bids must be accepted. Local Gov?
Code 0 272.001(a). Subsection (b) provides that these notice and bidding requirements
do not apply to certain types of land and real property interests, includinga ‘Vealproperty
Intel! conveyed to a govemmentd entity that has the power of eminent domain.” Id.
8 272OOl@)(6). Subsection (b), however, also makes clear that such land and hK&S
“may not be conveyed, sold, or exchangedfor less than the fitirmarket value of the land or
into&.” Id. 4 272.001(b). It ti~rthtr provides that “[t]he fair market value is determined
by an appraisal obtained by the political subdivisionthat owns the land or interest, and the
appraisal is conclusive of the fair market value of the land or interest.” Id. 4 272.001(b).
Accordingly, we wnclude that the city is prohibited from wnveying the property to the
hospital district for less than fair market value.’
p. 1204
Honorable Roland Saul - Page 4 (DM-232)
~inrlly.weaotethtchrpta26ofthcPukrmdWddlifccodemryrpplytothe
pmposedwnveyanw. gection26.001(8)0fthiachpter~hpaGnanpanthatr
municip8lity
nuynotrpproVe8nyprogr8morprojectth8trquirestheuseor
taking of any public land designated and used prior to tbe
umnganent of the program or project M a puk...unless
. ..nnmicip8lity.8ctingthroughitsduly8utho~goveming
(1)thaeisnofusiile8ndpmdent8ltemahtotheuaeor
takingofsllchknd;and
(2) the program or project indudes all reasonable planning to
minimiMhumtotheiand...msuldng~theuseort8king.
Tbe®oinghdingsmaybemadeonlyafternoticeandaheuing. Parks&Wdd.Code
9 26.001(b): Section 26.004 exempts certain land hm these rquimmwts Although
youhveaot~~lboutdrrpta26ofthe~ladWddlifecodeudhntenot
~~urwitharffidmtinformrtiontod~amethaornotitwouldrpplytothe
puLrtirsuc,yw~~dk;Iwanthatthisoffi~hasheldthatitsprrdecessor~e
applied to amqaaws similar to the one you dcscrii. See, cg., Attomey General
Gpinions Mw-471 (1982); H-108 (1973); M-788 (1971).
p. 1205
Honorable Roland Saul - Page 5 (DM-232)
ql OrdK to WtNey 8 city pKk to the Deaf smith county
HospitalDistrh,theCityofHerefb~Inwdaotadbcre:othe
procedures ret forth in stion 253.001 of the Loal Govemment
Code. Section 272.001 of the Load Gomnmwt Code, however,
prohiii the comqmce of the land to the .bspital district for less
tbanfhirmarketvalue. lnuJdition,chapter26oftheParksand
Wiwifi Code m8y apply to the proposed wmxywce.
DAN MORALES
Attomey Gamal of Texas
WILLPRYOR
FiiAMis&ntAttomeyGenK8l
MARYKELLER
Deputy Attomey Genad for Litigation
RENEAHIcKs
StUe Solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
p. 1206