Untitled Texas Attorney General Opinion

The Attorney General of Texas
October 22. 1981

MARK WHITE
Attorney General

Supreme Court Bullding Fred Wendorf, Ph.D., Chairman Opinion No. MW-378
P. 0. Box 12546 Texas Antiquities Committee
Awtln. TX. 78711 P. 0. Box 12276, Capitol Station Re: Contract for renovation
51214752501 Austin, Texas 78711 of Sam Houston Woodland Home
Telex 91OiB74-1357
in Huntsville
Telecopier 51214750296

Dear Mr. Wendorf:
1607 MaIn St., Suite 1400
Dallas. TX. 75201 The Sam Houston Woodland Home in Huntsville, Texas, is the
214l7428944
subject of your opinion request. This home is situated on land
administered by the Board of Regents of the Texas State University
4524 Alberta Ave., Suite 160 System. It is designated as a National Historic Landmark, is listed
El Paso, TX. 79905 in the National Register of Historic Places, and is a Recorded Texas
9151533.3484 Historic Landmark.

1220 Dallas Ave.. Suite 202
On June 24. 1981, the Texas Antiquities Committee designated the
Houston. TX. 77002 Woodland Home as a State Archeological Landmark. We will assume that
7131650-0965 this designation was effective to confer "landmark" status upon the
home. The Board of Regents is concerned about the effect of this
designation upon a contract it entered into on May 23, 1980, for
608 Broadway, Suite 312
Lubbock. TX. 79401 extensive renovation of the home. Much of the renovation work had
SCW747.5239 been completed when the designation was made. but more remains to be
done. Your question is whether the Board of Regents must obtain a
permit from the Texas Antiquities Committee before this renovation
4309 N. Tenth, Suite B
work can be completed.
McAllen. TX. 78501
5lM2.4547
Sections 191.001, et seq., of the Natural Resources Code
constitute the Antiquities Code of Texas. These provisions were
200 Main Plaza. Suite 400 enacted in 1977. Acts 1977, 65th Leg.. ch. 871, at 2345. Formerly,
San Antonio, TX. 79205
they were contained in article 6145-9. V.T.C.S., enacted in 1969.
51212254191

Several Antiquities Code provisions are relevant to your inquiry.
An Equal OpportunityI Section 191.092 provides that:
Attinnative Action EmPlOW

Other sites, objects, buildings, artifacts,
implements, and locations of historical,
archeological, scientific, or educational
interest, including those pertaining to
prehistoric and historical American Indians or
aboriginal campsites, dwellings, and habitation
sites, their artifacts and implements of culture,

p. 1273
.

Mr. Fred Wendorf - Page 2 (MW-378)

as well as archeological sites of every character
that are located in, on, or under the surface of
any land belonging to the State of Texas or to any
county. city, or political subdivision of the
state are state archeological landmarks and are
the sole property of the State of Texas.
(Emphasis added).

Prior to the effective date of Senate Bill No. 659, section 191.093
provided that:

Landmarks under Section 191.091 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 191.094 provides in pertinent part that:

(a) Any site located on private land which is
determined by majority vote of the committee to be
of sufficient archeological, scientific, or
historical significance to scientific study,
interest, or public representation of the
aboriginal or historical past of Texas may be
designated a state archeological landmark by the
committee.

Section 191.095 provides that:

All sites or items of archeological,
scientific, or historical interest located on
private land in the State of Texas in areas
designated as landmarks, as provided in Section
191.094 of this code, and landmarks under Section
191.092 of this code, may not be taken, altered,
damaged, destroyed, salvaged, or excavated without
a permit from the committee or in violation of the
terms of the permit. (Emphasis added).

Senate Bill No. 659 became effective on August 31. 1981. It
amended section 191.093 by adding the following underlined language:

Landmarks under Section 191.091 or Section
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).

Before reaching your question, we will address two threshold
questions: (1) Prior to August 31. 1981, was the Texas Antiquities

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Mr. Fred Wendorf - Page 3 (MW-378)
a

Committee authorized to require that a permit be obtained before
section 191.092 landmarks are altered? (2) May the committee require
that a permit be obtained if it has not formally designated an item
listed in section 191.092 as a “state archeological landmark”?

Texas Antiquities Committee v. Dallas County Community College
District. 554 S.W.2d 924 (Tex. 1977). is pertinent to this inquiry.
There, the college district sought to set aside an order of the
Antiquities Committee denying it a permit to demolish three buildings.
The committee had never designated the buildings as state
archeological landmarks. Nevertheless, it argued that the college
district had to obtain a permit before demolishing the buildings
because they were listed in the National Register of Historic Sites
and Buildings and were therefore of “historical interest” within
section 6, article 6145-9, V.T.C.S. That section then provided as
follows:

All... buildings... of historical... interest...
located... on... lands belonging to the State of
Texas or.. . any county, city, or political
subdivision of the state are.. . State
Archeological Landmarks and are the sole property
of the State of Texas and all such sites or items
located on private lands withjn the State of Texas
in areas that have been designated as a ‘State
Archeological Landmark’ as hereinafter provided,
may not be taken, altered, damaged... withcut a
permit from.. . the Antiquities Committee.

-See §§191.092-191.095.

Speaking for four members of the court, Justice Pope held
section 6 unconstitutional on its face and as applied in that case.
With respect to the latter conclusion, he found no substantial
evidence to support the committee’s refusal to grant the permit.
Justice Greenhill concurred, agreeing with the plurality on the
substantial evidence point, but declining to reach the constitutional
questions. Justice Denton dissented.

The portion of Justice Pope’s plurality opinion that concerns us
is as follows:

The Antiquities Committee has not designated any
of the three buildings at issue as State
Archeolol 3ical Landmarks, but the Connnittee has
denied the Collene District’s request to demolish
the buildings based upon the buildings’ expedited
inclusion in the National Register of Historic
Sites and Buildings. The Antiquities Code does
not give the Antiquities Committee authority .over
buildings in the National Register; instead, the
Code only gives the Committee authority over

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Mr. Fred Wendorf - Page 4 (MW-378)

buildings which the Committee has designated as a
State Archeological Landmark. Since the Committee
has not designated the buildings as State
Archeological Landmarks. the College District does
not need the Conrmittee’s permission before
demolishing the buildings.

554 S.W.Zd at 926. (Emphasis added).

The meaning of this statement is clear: the Antiquities
Committee has no jurisdiction over buildings which it has not
designated as state archeological landmarks, and its permission is
therefore not needed before such a building is altered. The question
concerns the legal significance of this statement. Although neither
Justice Greenhill nor Justice Denton challenged it in their opinions,
it technically reflects the views of only four members of the court.
Moreover, if the fact that the buildings were never designated as
landmarks was dispositive of the question of whether a permit was
needed to demolish them, the court need not have reached the
constitutional questions. It could have disposed of the case on that
ground alone.

In our opinion, however, this statement resolves the question of
when the Antiquities Committee acquires jurisdiction of buildings,
sites, and other items. First. the court of civil anneals
.. relied on
this statement in Board of Regents v. Walker County Historical
Commission, 608 S.W.2d 252 (Tex. Civ. App. - Houston 114th Dist.1
1980, no writ), which involved the Woodland Home. Second, it is the
only reasonable construction of the Antiquities Code provisions. One
can hardly be expected to know that a particular item is a “landmark,”
and is therefore subject to the permit requirement, until the
Antiquities Committee formally designates it as such.

The Woodland Home is a “building” located on land “belonging to
the State of Texas or to any county, city, or political subdivision”
within section 191.092. For the foregoing reasons, we conclude that
it became a “landmark” within the Antiquities Code on June 24, 1981.

We now consider whether, prior to August 31, 1981, the
Antiquities Committee’s permission was needed before section 191.092
landmarks could be altered. Put another way. does Senate Bill No. 659
effect any change in the law in this area? Before August 31. section
191.093 referred only to “landmarks under Section 191.091.” Section
191.095 provided, however, that:

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Mr. Fred Wendorf - Page 5 (MW-378)

without a permit from the committee.... (Emphasis
added).

This section was derived from section 6. article 6145-9. supril.
Section 6 was discussed in Attorney General Opinion H-250 (1974),
which observed that although the “peculiar wording” of the section
might suggest that the “taken, altered, damaged,” etc.. clause applied
only to landmarks on private lands, the legislature certainly must
have intended to protect landmarks on public land “with the same
vigor. ” Attorney General Opinion H-250 concluded as follows:

In our opinion, then. 56 of the Antiquities Code
requires that the permission of the Antiquities
Committee be obtained in the form of a permit
before any site of historical or archeological
interest located on public lands can be altered,
damaged, destroyed, etc. (Emphasis added).

In our opinion, the legislature merely ratified this conclusion
when it enacted section 191.095 in 1977. The wording of that
section--particularly its reference to section 191.092--clearly
indicates that all section 191.092 landmarks were intended to be
subject to the pzit requirement. Senate Bill No. 659 does not enact
new law, therefore, but only clarifies existing law.

The Antiquities Committee, therefore, was obliged to require that
a permit be obtained prior to the alteration of a section 191.092
landmark even before Senate Bill No. 659 became effective. The
remaining question is whether the committee may now require the Board
of Regents to obtain a permit before further renovation work is
performed on the Woodland Home pursuant to the contract of May 23,
1980.

Section 191.093 now provides that section 191.092 landmarks “may
not be . ..altered . ..without a . ..permit from the committee.” The law is
settled that unambiguous statutory language will he construed as
written. Ex parte Roloff, 510 S.W.Zd 913 (Tex. 1974). In our
opinion, a straightforward reading and application of this statute
compels the conclusion that once a building is designated as a “state
archeological landmark.” it may not be altered without a permit from
the committee. We perceive no basis for concluding that the
legislature did not intend for the permit requirement to apply where,
as here, alterations were contracted for before a building is
designated a landmark. On the contrary. given the state’s legitimate
interest in preserving the integrity of landmarks, we believe the
legislature fully intended the permit requirement to apply in such
instances.

It is suggested in an accompanying brief that to conclude that
the Board of Regents must obtain a permit before this renovation work
is completed is to raise constitutional questions under article I,
section 10 of the Federal Constitution and article I, section 16 of

p. 1277
Mr. Fred Wendorf - Page 6 (NW-378)

the Texas Constitution, which prohibit laws impairing the obligation
of contracts. However. we are not here confronted with lenislatlon
which has that effect. See, e.g.. Texas State Board of Barber
Examiners v. Beaumont Barber College. Inc., 454 S.W.Zd 729 (Tex.
1970); Biddle v. Board of Adjustment, Village of Spring Valley, 316
S.W.2d 437 (Tex. Clv. App. - Houston 1958. writ ref’d n.r.e.l: see
also review of cases in- Attorney General- Letter Advisory No; 136
(1977). As we have observed, even though section 191.093 has now been
amended to include section 191.092 landmarks. section 191.095 has
existed in its present form since 1977, Accordingly, when the parties
entered into the May 23. 1980, contract, the law then provided that
section 191.092 landmarks may not be altered without a permit from the
committee. The parties must be presumed to have known that the
Woodland Home could at any time he designated as a landmark, thus
triggering the permit requirement. See. e.g., Reid v. Gulf Oil
Corporation, 323 S.W.2d 107 (Tex. Civ. App. - Beaumont 1959),
affirmed, 337 S.W.2d 267 (Tex. 1960); Lange v. Schulte, 276 S.W.2d 889
(Tex. Civ. App. - Amarillo 1954, writ ref’d n.r.e.); 13 Tex. Jur. 2d
Contracts $165 (parties to contract presumed to have known existing
law and to have contracted with reference to it). Our courts have
held that the enforcement of legislation in effect when a contract is
made does not Impair the obligations created by the contract. McKenna
v. City of Galveston, 113 S.W.2d 606 (Tex. Civ. App. - Galveston 1938,
writ dism’d) ; see also Romeike v. Houston Ind. School District, 368
S.W.2d 895 (Tex. Civ. App. - Waco 1963, no writ).

We therefore conclude that the Board of Regents must obtain a
permit from the Texas Antiquities Committee before renovation work on
the Woodland Home is completed, even though the work was contracted
for before the home was designated a “landmark.”

It must be emphasized, however, that the committee may not
arbitrarily refuse to grant a permit or impose any requirements
whatsoever as conditions precedent to the issuance of a permit. Texas
Antiquities Committee v. Dallas County Community College District,
supra, demonstrates that the committee’s decision will be tested under
the substantial evidence rule. In making its decision, for example,
the committee certainly could not overlook the fact that, based upon a
restoration study made by an architectural firm, the legislature
appropriated funds for repairs and rehabilitation of the Woodland Home
in 1979. General Appropriations Act, Acts 1979, 66th Leg., ch. 843,
art. IV, 01, at 2844. In other words, the Woodland Home was
designated a landmark after the legislature had placed its stamp of
approval on the restoration project currently in progress.

SUMMARY

The Board of Regents of the Texas State
University System must obtain a permit from the
Texas Antiquities Committee before completing the
renovation work on the Sam Houston Woodland Home

p. 1278
Mr. Fred Wendorf - Page 7 (Mb'-378)

in Huntsville which it contracted for in May,
1980.

MARK WHITE
Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Eva Loutzenhiser
Jim Moellinger

p. 1279