Untitled Texas Attorney General Opinion

The Attorney General of Texas

JIM MATTOX December 29, 1983
Attorney General

Supreme Court Building Fred Wendorf, PhD. Opinion No. JM-104
P. 0. BOX 12543 Chairman
Austin, TX. 7871% 2543 Texas Antiquities Committee Re: Effect of designation as a
512/4Y5-2501
P. 0. Box 12276, Capitol Station state archaeological landmark
Telex 9101874-1387
Telecopier SW475.020~
Austin, Texas 78711

Dear Dr. Wendorf:
714 Jackson, Suite 700
Dallas, TX. 75202.4508
You ask for clarification of the effect of the designation of
2141742.0944
real property owned by a political subdivision to be a state
archaeological landmark under the Antiquities Code, chapter 191 of the
4824 Alberta Ave., Suite 160 Natural Resources Code. You wish to know whether designation of a
El Paso. TX. 799052793 specific piece of real property owned by an independent school
9151533-3434
district requires the execution and delivery of a deed to the Texas
P
Antiquities Committee.
x)1 Texas, Suite 700
Houston. TX. 77002-3111 Section 191.092(a) states that
713/223&S5
sites, objects, buildings, artifacts, Implements,
and locations of historical, archaeological,
808 Broadway, Suite 312
Lubbock, TX. 79401-3479 scientific, or educational interest, including
SOS/747-5233 those pertaining to prehistoric and historical
American Indians or aboriginal campsites, dwell-
h3.9, and habitation sites, their artifacts and
4309 N. Tenth, Suite B
McAllen, TX. 785Ol.tSS5
implements of culture, as well as archaeological
5121682-4547 sites of every character that are located in, on,
or under the surface of anv land belonaine - I to the
State of Texas or to any county, city, or
200 Main Plaza, Suite 400
political subdivision of the state are state
San Antonio, TX. 78205.2797
51W225-4191
archaeological landmarks. (Emphasis added).

Section 191.093 provides that
An Equal Opportunity/
Affirmative Action Employer
landmarks under . . . 191.092 of this code are the
sole property of the State of Texas and may not be
taken, altered, damaged, destroyed, salvaged, or
excavated without a contract with or permit from
the committee. (Emphasis added).

Section 191.002 declares it to be

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Dr. Fred Wendorf - Page 2 (~~-104)

the public policy . . . of the State of Texas to
locate, protect, and preserve all . . .
buildings . . . and locations of historical,
archaeological, educational, or scientific
interest . . . .

Section 191.051(b)(S) reiterates that it is the responsibility of the
Antiquities Committee to “protect and preserve the archaeological
resources of Texas.” We do not address any constitutional question
regarding the declaration that municipal property is the sole property
of the state of Texas.

You state that the Texas Antiquities Committee interprets these
provisions as limiting its jurisdiction over properties designated as
state archaeological landmarks to the protection and preservation of
their value as such. We agree with your interpretation of these
provisions.

It is well recognized that the legislature may exercise authority
over property belonging to the state of Texas or to any county, city,
or political subdivision of the state, subject only to constitutional
restraints. Greene v. Robison, 8 S.W.Zd 655, 659 (Tex., 1928); Houston
v. Gonzales Independent School District, 229 S.W. 467, 468 (Tex.
1921); Reese v. Cobb, 135 S.W. 220, 224 (Tex. Civ. App. - 1911, no
writ) ; Weekes v. Galveston, 51 S.W. 544, 546-547 (Tex. Civ. App. -
1899, writ ref’d). The constitutional limitations on the
legislature’s control of property owned by municipal and
quasi-municipal corporations, such as school districts, were defined
in Love v. City of Dallas, 40 S.W.2d 20, 27 (Tex. 1931), where it was
said that the public interest in municipal property acquired for its
benefit did not prevent the legislature from controlling or disposing
of property without the consent of the local governmental body so long
as such was not done in contravention of the trust. See also City of
Victoria v. Victoria County, 101 S.W. 190, 193 (Tex. 1907); Texas
Antiquities Committee v. Dallas County Community College District, 554
S.W.2d 924, 930-931.

The Antiquities Committee view that its governing statute
requires it to protect and preserve the value of state archaeological
landmarks while the deed of ownership remains with the municipal
corporation holding it in trust for the public is consonant with this
principle. You advise us that designation of about five hundred state
archaeological landmarks since 1977 has never involved a deed
transferring ownership to the state. Thus, the committee’s
administrative construction of the ambiguous sections 191.092(a) and
191.093 supports the conclusion that such property is appropriately
retained by the municipal corporation while the Antiquities Committee
becomes responsible for the preservation of its value as a state
archaeological landmark. Roy v. Schneider. 221 S.W. 880. 885 (Tex.

p. 438
. .

Dr. Fred Wendorf - Page 3, (JM-104)

1920); Stanford V. Butler, 181 S.W.2d 269, 273-274 (Tex. 1944). The
Antiquities Code, originally passed in 1969, was amended in 1981
without major change. Consequently, we believe that it may be
presumed that the Antiquities Committee's interpretation of the code
meets with legislative approval. Calvert v. Houston Lighting I% Power
Co., 369 S.W.2d 502, 509-510 (Tex. Civ. App. - Austin 1963, writ ref'd
z.e.); Railroad Commission of Texas v. Texas & New Orleans Railroad
Co., 42 S.W.2d 1091, 1097-98 (Tex. Civ. App. - Austin 1931, writ
ref'd).

It follows that the Antiquities Code does not require a deed
transfer of real property designated as a state archaeological
landmark or remove it from the management, use, and control of cities,
counties, or political 'subdivisions by which they are held for public
use and benefit. However, the committee's custodial authority
supersedes other management and usage rights to the extent that the
latter would conflict or interfere with the committee's legislatively
mandated duty to protect and preserve and a landmark's
"archaeological" value. Therefore, we conclude that the conrmittee's
interpretation of 191.092(a) and 191.093 is a reasonable construction
of these statutes absent contrary legislative action and any evidence
that such construction is erroneous or unsound. Shaw v. Strong, 96
S.W.2d 276 (Tex: 1936); Koy v. Schneider, 221 S.W. 880 (Tex. 1920).

SUMMARY

Where sections 191.092(a) and 191.093 of the
Natural Resources Code have been uniformly
construed by those charged with their enforcement
to mean that no transfer of deed is required when
real property owned by a county, city, or other
political subdivision is designated a state
archaeological landmark, this construction is
deemed effective absent legislative action to the
contrary or evidence that the construction given
is erroneous or unsound.

Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

p. 439
Dr. Fred Wendorf - Page 4 (JM-104)

Prepared by Colin Carl
Assistant Attorney General

APPROVRD:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bibls
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton

p. 440