April 26, 1968

Mr. Harry B. Kelton, Director Texas National Guard Armory Board Austin, Texas 78711

Dear Mr. Kelton: OpinionNo. M-225

Re: Whether certain available funds of the Texas National GuardArmory Board,, either in the State Treasury or in banks be legally disbursed
as cash consideration for lands tobe acquired at Camp Maxey.

you have requeste.d an opinion as towhether certain funds in the State Treasury or inbanks may be expended for the purpose of acquiring landby the Texas National GuardArmory Board. You state inyour 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 transactionswith private land owners in the acquisition of approximately 610 acreswhich may require the Armory Board to disburse some cash consideration. Based on landvalues establishedand used in exchangeswith the Corps of Engineers a total cash consideration should not exceed $SO,OOO.OO.

"In addition to tracts of land acquired by theArmory Board from the Federal Government in exchange.forCamp Maxey land therewill be a cash,consideration of $257.806.60which we shall

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

deposit in the State Treasury as providedby Article 5931-9 and 5931-10 of House Bill No. 406. Acts, 1967, 60th Legislature. In your opinion couldwe legally deposit such proceeds to other than the State Treasury?

"Inyour opinion, could any of our available funds either in the State Treasury or inbanks be legallydisbursed as cash considerationfor lands tobe 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.

"Theboard may receive from theAdjutant General state-ownedNational Guard Camps and all land and improvements,buildings, facilities, installations,and personal property in connection therewithand administer the same or transfer it and/or any of theboard's other propertyto the Board of Control for sale, or make properdisposal of such propertyotherwisewhen designatedby the board and theAdjutant General as 'Surplus'and when in thebest interest of the Texas National Guard, its successors or components. TheArmory Board and the Board of Control are furtherauthorized to remove, dismantle, and sever, or authorize the removal, dismantling, and severance of any of said property to accomplish theabove purposes. All of such property so designated for sale, shall,when transferredby theArmory Board, be soldby the Board of Control to thehighest bidder for cash and in the manner providedby law for the sale of propertybelonging to the state which is no longer needed, and all funds

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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 fundsmay be expended except by legislativeappropriation.
"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-sixteenthmineral interest free of cost of production;provided,however, that theboard shallbe authorized to reconvey to the originalgrantor or donor all rights, title, and interests, includingmineral interests, to all or any part of the lands conveyedby such grantor or donor, and theboard shall further be authorized,upon a negotiatedbasis at fair market value, to convey to such original grantor or donor improvementsconstructed on the land to be reconveyed. All funds derived from any such sales shallbe depositedby the board in the State Treasury, as hereinbefore provided with regard to other fundsderived from other authorized sales."
Article 5931-5,as amendedby House Bill No. 406, supra, p. 416, provides, in part, as follows:

"Art. 5931-5. Specific powers.
"Theboard shall possessbut is not limited to the following powers:
II

. . . "(6) to acquireby gift orpurchase, for
use as building sites or for any other purposes

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deemed by said board 'tobe 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 BillNo. 641,Acts 60th Legislature,Regular Session 1967, ch. 275, p. 661, providet

"Section 1. The Texas NationalGuard Armory Board is hereby authorized to convey by specialwarranty 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 Engineersacting for the United States Army conveyances of the lands tobe received in exchange and to be used for the training of units of the TexasNational Guard.

"Sec. 2. The Texas National GuardArmory 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 StatesArmy: provided such lands received or conveyed are for the purpose of consolidating or joining thevarious tractswithin a common perimeter to reduce or eliminate isolated privately owned tracts that would require the rights in ingressand egress at Camp Baxey."

The current General AppropriationAct for the year ending August 31, 1968, (SenateBill 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 fundswhich have

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been or may be derived from sales of Stateowned National Guard camps and other property ownedby the Texas National Guard Armory Board and of land, improvements,buildings, facilities, installationsand personal property in connection therewith, as authorizedby House Bill No. 406, Acts, 1967, 60th Legislature. Such funds shall be expendedby the Texas National Guard Armory Board for the use and benefit of the Texas National Guard for one or more of the followingpurposes: (1) As a participating fund in the construction of armories financed in partby the United States Government: ,or (2) As a construction fund to be usedby theArmory 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 purposeshereinbefore specified shall remain on depositwith 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 ishereby re-appropriated to the TexasNational Guard Armory Board all sums refunded to-said Board from any source when such fundswere originally expended for any of the purposes enumerated in Items 1 through 5 above. Such re-appropriated fundsmay 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 acquireby purchase property of any and every descriptionwhether real, personal or mixed; therefore, the board has the authority to acquireby purchase the land described in your request.

The Legislature specifically provided that funds derived from sales of state-ownedNational Guard camps and other property ownedby the Texas National Guard Armory Board "shallremain on deposit for the use and benefit of the board." The Legislature

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

did not appropriatemonies to the board for the all inclusive purpose of carrying out the specific powersgranted the board by House Bill No. 406. Gn the contrary, the Legislature limited the purposes forwhich the appropriation couldbe expended to three (3)specific purposes, namely: "(1) As a participating fund in the construction of armories financedin partby the United States Government: or (2) As a constructionfund 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 "aparticipating fund in the construction of armories;" not "a construction fund to be used by the Armory Board;" and is not "adebt-servicingfund." 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 constitutean appropriation: rather, such language prevents such monies fromreverting to the General Revenue Fund of the state. you are, accordingly, advised that monies in the State Treasury may notbe expended for the purchase of land except as a necessary incidentto the construction of armories. Since the board is specificallyauthorized by the provisions of Subdivision 6 of Article 5931-5to acquire land by purchase, theboard may expend for the purchaseof land monies in its custody and control so long as suchmonies are not in the State Treasury.

SUMMARY

Proceeds received by the TexasNationalGuard Armory Board in consummating an exchangeof land in the Camp Maxey area are tobe deposited in the State Treasury. Such monies are not appropriatedby the Legislature for the purchase of land and, therefore,
none of the appropriated fundsmay be expended for such purpose. However, monies under the control of the Board not in the State Treasurymaybe expended for the purchase of land.

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Preparedby 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. BxecutiveAssistant

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