April 26, 1968 

Mr. Harry B. Kelton, Director 

Texas National Guard 

Armory Board 

Austin, Texas 78711 

Dear Mr. Kelton: 

Opinion No. M-225 

Re: Whether certain available 

funds of the Texas National 

Guard Armory Board,, either 

in the State Treasury or in 

banks be legally disbursed 

as cash consideration for 

lands to be acquired at 

Camp Maxey. 

you have requeste.d an opinion as to whether certain funds 

in the State Treasury or in banks may be expended for the purpose 

of acquiring land by the Texas National Guard Armory Board. You 

state in your letter as follows: 

"In consummating an exchange of lands in 

the Camp Maxey area with the Corps of Engineers, 

as provided in House Bill No. 641, Acts, 1967, 

60th Legislature, we anticipate further land 

transactions with private land owners in the 

acquisition of approximately 610 acres which 

may require the Armory Board to disburse some 

cash consideration. Based on land values established and used in exchanges with the Corps 

of Engineers a total cash consideration should 

not exceed $SO,OOO.OO. 

"In addition to tracts of land acquired 

by the Armory Board from the Federal Government 

in exchange.for Camp Maxey land there will be a 

cash,consideration of $257.806.60 which we shall 

-1078- 
: 

. 

Mr. Harry B. Kelton, page 2 (M-225) 

deposit in the State Treasury as provided by 

Article 5931-9 and 5931-10 of House Bill No. 

406. Acts, 1967, 60th Legislature. In your 

opinion could we legally deposit such proceeds 

to other than the State Treasury? 

"In your opinion, could any of our available 

funds either in the State Treasury or in banks 

be legally disbursed as cash consideration for 

lands to be acquired at Camp Maxey?" 

Articles 5931-9 and 5931-10, Vernon's Civil Statutes, 

as amended by House Bill No. 406, Acts 60th Legislature, Regular 

Session 1967, ch. 186, p. 415, at pages 419 and 420, read as follows: 

"Art. 5931-9. Transfers and sales. 

"The board may receive from the Adjutant 

General state-owned National Guard Camps and 

all land and improvements, buildings, facilities, 

installations, and personal property in connection 

therewith and administer the same or transfer it 

and/or any of the board's other property to the 

Board of Control for sale, or make proper disposal 

of such property otherwise when designated by the 

board and the Adjutant General as 'Surplus' and 

when in the best interest of the Texas National 

Guard, its successors or components. The Armory 

Board and the Board of Control are further authorized to remove, dismantle, and sever, or authorize the removal, dismantling, and severance 

of any of said property to accomplish the above 

purposes. All of such property so designated for 

sale, shall, when transferred by the Armory Board, 

be sold by the Board of Control to the highest 

bidder for cash and in the manner provided by 

law for the sale of property belonging to the 

state which is no longer needed, and all funds 

- 1079 - 
or. Harry B. Kelton, page 3 (K-225) 

received from such sale shall be deposited in 

the State Treasury to the credit of the Texas 

National Guard Armory Board for the use and 

benefit of the Texas National Guard or their 

successors or components; provided, however, 

that none of these funds may be expended except by legislative appropriation. 

"Article 5931-10. Conditions requiring 

reservation of mineral interests. 

"Any sale or deed made pursuant to the 

terms of this Act shall reserve unto the State 

of Texas a one-sixteenth mineral interest free 

of cost of production; provided, however, that 

the board shall be authorized to reconvey to 

the original grantor or donor all rights, title, 

and interests, including mineral interests, to 

all or any part of the lands conveyed by such 

grantor or donor, and the board shall further 

be authorized, upon a negotiated basis at fair 

market value, to convey to such original grantor 

or donor improvements constructed on the land to 

be reconveyed. All funds derived from any such 

sales shall be deposited by the board in the 

State Treasury, as hereinbefore provided with 

regard to other funds derived from other authorized 

sales." 

Article 5931-5, as amended by House Bill No. 406, supra, 

p. 416, provides, in part, as follows: 

"Art. 5931-5. Specific powers. 

"The board shall possess but is not 

limited to the following powers: 

II . . . 

"(6) to acquire by gift or purchase, for 

use as building sites or for any other purposes 

-1080- 
or. Barry B. Kelton, page 4 (~-225) 

deemed by said board 'to be necessary in connection with or for the use of units of the 

Texas National Guard, prowrtv of anv and 

everv description. whether real, wrsonal. 

or mixed. . . .'I (Rnphasis added.) 

Sections 1 and 2 of House Bill No. 641, Acts 60th Legislature, Regular Session 1967, ch. 275, p. 661, providet 

"Section 1. The Texas National Guard 

Armory Board is hereby authorized to convey 

by special warranty deed to the Corps of Engineers of the United States Army all rights, 

title and interests in all or any part of the 

lands at Camp Maxey, Lamar County, Texas, and 

to accept from the Corps of Engineers acting 

for the United States Army conveyances of the 

lands to be received in exchange and to be used 

for the training of units of the Texas National 

Guard. 

"Sec. 2. The Texas National Guard Armory 

Board is further authorized to buy, sell, convey 

and exchange all rights, title and interests, including mineral interests, in all or any part of 

the lands in Camp Maxey, including such lands 

hereafter acquired in exchange from the Corps 

of Engineers of the United States Army: provided 

such lands received or conveyed are for the purpose of consolidating or joining the various 

tracts within a common perimeter to reduce or 

eliminate isolated privately owned tracts that 

would require the rights in ingress and egress 

at Camp Baxey." 

The current General Appropriation Act for the year 

ending August 31, 1968, (Senate Bill No. 15, Acts 60th Legislature, Regular Session,p. 2152)contains the following appropriation 

to the Texas National Guard Armory Board: 

"There is hereby appropriated to the Texas 

National Guard Armory Board all funds which have 

-1081- 
Mr. Harry B. Kelton, page 5 (M-225) 

been or may be derived from sales of Stateowned National Guard camps and other property 

owned by the Texas National Guard Armory Board 

and of land, improvements, buildings, facilities, 

installations and personal property in connection 

therewith, as authorized by House Bill No. 406, 

Acts, 1967, 60th Legislature. Such funds shall 

be expended by the Texas National Guard Armory 

Board for the use and benefit of the Texas National 

Guard for one or more of the following purposes: 

(1) As a participating fund in the construction 

of armories financed in part by the United States 

Government: ,or (2) As a construction fund to be 

used by the Armory Board: or (3) As a debt-servicing fund as provided in House Bill No. 406, Acts, 

1967, 60th Legislature, Regular Session. Provided, 

however, that all such funds as are not actually' 

used for the purposes hereinbefore specified shall 

remain on deposit with the State Treasurer to the 

credit of the Texas National Guard Armory Board 

for the use and benefit of the Texas National 

Guard, their successors or components, as provided in House Bill No. 406, Acts, 60th Legislature. There is hereby re-appropriated to the 

Texas National Guard Armory Board all sums refunded 

to-said Board from any source when such funds were 

originally expended for any of the purposes enumerated in Items 1 through 5 above. Such re-appropriated funds may be expended for any of the purposes enumerated in Items 1 through 5 ab~ove."~'~ ~~~ 

Subdivision 6 of Article 5931-5 specifically authorizes 

the Texas National Guard Armory Board to acquire by purchase property of any and every description whether real, personal or mixed; 

therefore, the board has the authority to acquire by purchase the 

land described in your request. 

The Legislature specifically provided that funds derived 

from sales of state-owned National Guard camps and other property 

owned by the Texas National Guard Armory Board "shall remain on 

deposit for the use and benefit of the board." The Legislature 

-1082- 
Mr. Harry B. Kelton, page 6 (M-225) 

did not appropriate monies to the board for the all inclusive 

purpose of carrying out the specific powers granted the board 

by House Bill No. 406. Gn the contrary, the Legislature limited 

the purposes for which the appropriation could be expended to 

three (3) specific purposes, namely: "(1) As a participating 

fund in the construction of armories financed in part by the United 

States Government: or (2) As a construction fund to be used by the 

Armory Board: or (3) As a debt-servicing fund as provided in House 

Bill No. 406, Acts, 1967, 60th Legislature, Regular Session." 

The acquisition of land is not "a participating fund in 

the construction of armories;" not "a construction fund to be used 

by the Armory Board;" and is not "a debt-servicing fund." Therefore, such monies have not been appropriated for the purpose of 

acquiring land. The phrase "shall remain on deposit for the use 

and benefit of the board" does not constitute an appropriation: 

rather, such language prevents such monies from reverting to the 

General Revenue Fund of the state. you are, accordingly, advised 

that monies in the State Treasury may not be expended for the purchase of land except as a necessary incident to the construction 

of armories. Since the board is specifically authorized by the 

provisions of Subdivision 6 of Article 5931-5 to acquire land by 

purchase, the board may expend for the purchase of land monies in 

its custody and control so long as such monies are not in the State 

Treasury. 

SUMMARY 

Proceeds received by the Texas National Guard 

Armory Board in consummating an exchange of land in 

the Camp Maxey area are to be deposited in the State 

Treasury. Such monies are not appropriated by the 

Legislature for the purchase of land and, therefore, 

none of the appropriated funds may be expended for 

such purpose. However, monies under the control of 

the Board not in the State Treasury may be expended 

for the purchase of land. 

-1083- 
t&. Harry B. Kelton, page 7 (M-225) 

Prepared by John Reeves 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

W. V. Geppert 

Roger 'Qler 

John Grace 

Ray McGregor 

A. J. CARUBBI, JR. 

Bxecutive Assistant 

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