. . 

ORNEY GENERAL 

0wT~xAs 

Ronorable Arthur B. Knickerbocker 

Adjutant General of Texas 

Austin, Texas 

Dear Sir: Opinion No. o-569.5 

Re: Right of Adjutant General 

on behalf of State to 

enter into lease rental 

contract with the Texas 

National Quard Armory 

Board. 

Reference is made to your letter of October 25, 1943, 

to which you attached the proposed lease contract to be,executed by you, and'to your letter of November 5, 1943, supplementing your request. Your letters are as follows: 

"You are delivered herewith a proposed contract by 

and between the Texas National Guard Armory Board as lessor, 

and the State of Texas as lessee, to be executed by me. 

"You will note that Paragraph 7 provides that the 

lessee (State) promises to pay an installment of $6,200.00 

on or before October 31, 1943, and 22 other installments of 

$3,100.00 each, for 22 consecutive months, aggregating a 

total of $74,400.00 for the biennum. The 48th Legislature 

made no provision for the payment of this sum of money, or 

any other amount by the Adjutant General. 

"Will you kindly let me have the answers to the 

following questions: % 

"1. Do I have the legal right, as Adjutant General 

of Texas, to bind the State of Texas, under the law, to pay 

to the Texas National Quard Armory Board for the time contemplated by the proposed contract the aforesaid sum of 

money? 

"You will note that Item 4, page 234, of the appropriation made by the 48th Legislature for the use and 

benefit of the Texas National Guard Armory Board for each 
- . 

Honorable Arthur B. Knickerbocker - page 2 (O-5695) 

year of the next biennium provides for $&O,OOO.OO to 

pay rentals on property leased by said Board to the 

State of Texas under authority of law. 

"2 D Would the Texas National Guard Armory 

Board have the right to pay the installment of$6,,200,00 

on or before October 31, 1943, and 22 other installments 

of $3,100,00 each, as contemplated by the above referred 

to paragraph of the prop,osed contract, out of the aforesaid appropriation made to the Armory Board., for and in 

behalf of the State of Texas, shou1.d Iexecute the proposed 

agreement as Adjutant General for the State of Texas. 

“3 D In the event this proposed contract was made, 

or any contract entered into by and, between the parties 

proposed, would the lessee have the right to take the 

proceeds of the lease and apply the same to the payment 

of an indebtedness of any character, or would it be necessary 

for the aforesaid Texas Nationa, Guard Armory Board and the 

State, by the Adjutant General, to pay the proceeds of such 

rental contract into the Treasury of the State of Texas, as 

is generally provided by law." 

Your supplemental inquiry of November 5 is as follows: 

"Does the Adjutant General have any discretion as to 

whether he will or will not sign a contract with the Armory 

Board 

a As a matter of fact? 

I b 1 As a matter of law? 

"Will you kindly incorporate your reply to the above 

inquiries in your answer to questions submitted on the aforesaid date?" 

In connection with the three questions in your original letter which we will consider first in this opinion, the 

provisions of Article 589013, Vernon's Annotated Civil Statutes 

must be looked to in determining the authority of the Texas 

National Guard Armory Board to sub-lease the property in 

questionto the State and your authority to execute such lease 

as agent of the State. The provisions of this Article 

applicable to your questions are as follows: 

"Section 2. The Board hereby created shall be and it 

is hereby constituted a body politic and corporate. It 
. . 

Honorable Arthur B. Knickerbocker - page 3 10-5695) 

shall succeed to the ownership of all property of, and all 

lease and rental contracts entered into by, the Texas National Guard Armory Board that was created by pri,or statues and 

all the obligations contracted or assumed by the last 

mentioned Board with respect to any such property and contracts shall be the obligations of the Board created by this 

Act. With this exception, no obligation of said former 

Board shall be binding upon the Board hereby created. It 

shall be the duty of said Board to have charge of the acquisition, construction, rental, control, maintenance and 

operation of all Texas National Guard Armories, including 

stables, garages, rifle ranges, hangers and all other property and eauipment necessary or useful in connection therewith, 

and the said Board shall possess all powers necessary and 

convenient for the accomplishment of such duty, including, 

but without being limited thereto, the following express 

powers: . O e 

"(f) To acquire, by gift or by purchase, for use as 

building sites or for any other purposes deemed by said Board 

to be neceqsary or desirable in connection with or for use 

of units of the Texas National Guard, property of any and 

every description, whether real, personal or mixed, incl,uding, 

but without limitation on the foregoing, leasehcid estates in 

real property, and hold, maintain, sub-lease, convey and exchange such property, in whole or in part, and/or to pledge 

the rents, issues and profits thereof in whole or l.n part; 

also, to acquire, by gift or purchase or by construction of 

the same, furniture and equipment suitable for Armory purposes 

and to hold, maintain, sub-lease, convey, 'and exchange such 

furniture and equipment, in whole or in part. 

"(g) To construct buildings on any of its real property, 

whether held in fee simple or otherwise, and to furnish and 

equip the same and to hold, manage and maintain all of said 

property and to lease to the State of Texas, o D 

"(h) From time to time, 3 borrow money, and to, i~ssue 

and sell bonds, debentures and other evidences of indebtedness for the purpose of acquiring one or more building sites 

and buildings, O O "and to be secured as follows: Sy a pledge 

of, and payable solely from, the rents, issues and profits of 

all of the property of the Board; or by a pledge of, and payable solely from the rents, issues and profits, of the property acquired or constructed by the Board, o D I 

"(i) To execute and deliver leases, or sub-leases in 

the cpsr or bui1dinp.q lr-ate? unon leraehold statutes n~cnuired 

by the Board, demising and leasing to the State of Texas through 
. . 

Honorable Arthur B. Knickerbocker - page 4 (O-5695) 

the Adjutant General, who shall execute the same for said 

State, for such lawful term as may be determined by the 

Board, any building or buildings and the equipment therein 

and the site or sites therefor, to be used for Armory and 

other purposes and to renew such leases 01" sub-leases from 

time to time; provided, however, that if at any time the State 

of Texas shall fail or refuse to pay the rental reserved in 

any such lease or sub-lease, or shall fail or refuse to lease 

or sub-lease, any such building and site, or to renew any 

existing lease or sub-lease thereon at the rental provided 

to be paid, then the Board shall have the power to lease or 

sublease such building and equipment and the site therefor to 

any person or entity and upon such terms as the Board may determine. D . The annual rental (which may be made payable in 

such installments as the Board shall determine) to be charged 

the State of Texas for the use of such property leased OP subleased to it by the Board shall be sufficient to provide for 

the operation and maintenance of the property so leased or subleased, to pay the interest on the bonds, debentures or other 

evidences of indebtedness, if any, issued for the purpose of 

acquiring, constructing or equiping such property to provide 

for the retirement of such bonds, debentures or the other 

evidences of indebtedness, if any, and the payment of the 

expenses incident to the issuance therecf, as well as the 

necessary and proper expenses of the Board not otherwise provided for." 

The Act as amended by the 45th Iegislature in 193'7, was 

brou$ht before the Supreme Court in the case of Texas National 

Guard Armory Board vs, M&raw> 126 S. W. (2nd) 627,, SOP the 

purpose of determining its constitutionality. The Armory 

Board, by original mandamus proceedings, sought to compel the 

Attorney General to approve the record concernirlg the bonds 

executed by the Board. In this case the Attorney General in 

questioning the validity of the Act raised, among others, the 

following objections. 

"First, The following sub-paragraphs of section 2 of 

said Act (Vernon's Annotated Civil Statutes, Article 58 Ob, 

Section 2), are void for unconstitutionality in that (i 3 

authorizes the creation of a debt on behalf of the State in 

violation of Section 49, Article III of the Constitution of 

Texas (Vernon's Annotated Civil Statutes) and (g), (h), 

and (i) taken together constitute the giving or lending and 

a Dled&t? of the rrpait of the State in violation of Section 50 

of said Article; and (i) in so far as it authorizes then Board to 

fix and determine the rentals to be Daid bv the State is a delef 

ation of le islative authorit in violation of Section 1 of 

rticle 2 an j!i of Section 1 of 1 rticle 3 of said Constitution. 
” 

Honorable Arthur B, Knickerbocker - page 5 (o-5695) 

"Third, That the Board is without authority to 

acquire OP hold sites for armoryI buildings or to pledge 

the revenues from buildings ereci,ed thereon if the title in 

said Board is by way of a long term leave and not in fee 

simple absolute, 

"Fourth. That, whether or not the third proposition 

be true, the Board is without authority to lease to the 

State of Texas any buildings it may erect on the sites held 

by the Board on long term lease since to do so would be a 

subleasing not contemplated or authorized in said~Act. 

"Fifth, That the leases of the Board to the State of 

Texas, which the said Act contemplates to be made, can not be 

validly executed by or in behalf of the State of Texas from 

which it follows that any pledge such as is contained in the 

said indenture, of the rents to be derived from leases to the 

State would be void and without effect," 

Mrgr. Justice Sharp wrote the majority opinion upholding 

the validity of this Act and answered all questi.ons raised by 

the Attorney General. The holding of the Court is found in 

the following two paragraphs: 

"This Act places the burden on the Board to do whatever 

is necessary to carry out its objects and purposes, and such 

contracts or leases are to be made Ithrough the Adjutant 

is 

eneral 

oerde' 

for such lawful terms as may be determined by the 

The Board is authorized to acquire sites for armory 

purposes, hy g*ft or purchase, and to pledge the rents or 

profits thereof, and to execute bonds, debentures and other 

evidence of indebtedness therefor , payable solely from the 

rents, issues and profits thereof; and it is expressly agreed 

that said bonds OP other evidences of indebtedness shall not 

constitute nor be deemed a debt of the State of Texas, nor is 

the credit of the State of Texas pledged for the payment . 

thereof. 

"In our opinion, this Act does not violate any of the 

provisions of the Constitution, and we find adequate grounds 

on which to base its validity." 

In connection with your request, that part of the 

appropriation act of the 48th Legislature to the Texas 
Honorable Arthur B. Knickerbocker - page 6 (o-5695) 

National Guard Armory Board, relating to the questions here, 

is set out below: 

"TEXAS NATIORAL GUARD ARMORY BOARD, 

Beginning 

Sept. 1, 1943 E$"$l, 1945 

Maintenance and Miscellaneous: 

4, Armory rentals, including 

headquarters, offices and 

motor vehicle storage; available either to pay rental 

contracted to be paid by the 

Armory Board, or to pay rentals 

on property leased by said board to 

the State of Texas under authoritv 

of law _ _ _ _ _ _ _ _ _ - $40,000,00 $40,000,00" 

We consider this appropriation to be applicable to 

lease contracts such as is presented here. A total of forty 

thousand ($40,000.00) dollars for each year of the beinnium 

is made available as is stated in the Act: 

board to-the State of Texas under authority of law. 

.or to pay rentals on property leased bx said 

In accordance with the provisions of Article 5890b, 

it is the opinion of this department that the first two of 

yaw? questions should be answered in the affirmative, 

In response to your third question, we find that the 

Act provides that the rents and profits derived from such 

leases may be pledged to secure indebtedness incurred by 

the board, and that they may be used to pay necessary expenses not otherwise provided for, Therefore, it is our 

opinion that the Armory Bond is to receive the money derived 

from such rental contracts. 

Having answered the o,uestions in your letter of 

October 25, 1943, in the affirmative, we will attempt to 

answer the questions in your letter of November 5, 1943, 

which are as follows: 

"Does the Adjutant General have any discretion as 

to whether he will or will not sign a contract with the 

Armory Board 
. 

Honorable Arthur B. Knickerbocker - page 7 (o-5695) 

a As a matter of Fact? I b I As a matter of Law? 

In the consideration of this question, we look to the 

history of the Act creating the Texas National Guard Armory 

Board. 

During the early days of the present National Administration, the Congress of the Unites States, while considering the Federal Emergency Relief Appropriation, was requested 

by the War Department to "ear mark" a portion of their %nds 

to be used for the construction of National Guard Armories 

in the several States upon the advice and approval of the War 

Department. The Texas allotment was tentatively set at six 

million dollars. The Congress acted favorably on this request. The funds were to be used under the direction 

of the Public Works Administration, whose regulations required 

State sponsorship of Armory Projects, and grants to the 

several States were contingent on a substantial contribution 

of them. 

Following this, the 44th Texas Legislature, Acts of 

1935, created the Texas National Guard Armory Board, making 

it the duty of the Board to have charge of the construction, 

rental, control, maintenance and operation of all National 

Guard Armories in Texas. The emergency clause of this Act, 

after stating the availability of these Federal funds, said: 

11 

. D .and the further fact that the State of Texas is 

now paying annually one hundred thousand ($lOO,OOO.OO) dollars 

or more for armory rentals; and the further fact that there 

is at this time no specific board created by the laws of Texas 

authorized to cooperate wit,h the Federal Government for the 

purpose of securing said allotment." 

This Act was amended by the 45th Legislature, 1937, 

Chapter 366, Page 740, and was codified in VernonPs Annotated 

Civil Statutes as Article 589013. 

The Act as amended has been quoted from freely in this 

opinion. However, it should be noted that in Section 2 of the 

Amendment the word "acquisition" was added. In addition to 

the duty of having charge of the construction, control, etc. 

of all armories, it was to have charge of the acquisition of 

all Texas National Guard Armories. 

In addition, as quoted from heretofore, it was autho,rlzed to borrow money, issue bonds and other forms of 
Honorable Arthur B. Knickerbocker - Page 8 (C-5695) 

indebtedness, pledging the rents and profits as security, 

lease to the State, and other powers not necessary to 

mention here. 

The Act was again amended in 1939, but the changes 

are not important in this discussion, 

It was the Act as amended in 1937 that was before 

the Supreme Court. This question presented here was not 

specifically decided by the court i,n the opini,on it rendered, 

However, we have carefully examined the file of this case 

in the Attorney Ceneralts office and when considering it 

and the opinion of the court together, we find the question 

was indirectly presented and inferentially included, in the 

opinion. 

The Texas National Guard Armory Board in its brief 

and argument to the Supreme Court sai.d in connection with 

this power of the Board to lease the armories to t,he State: 

"What is presented here is a statute which attempts 

to authorize the creation of an obligation on the part of 

the State and it must be determined whether or not such an 

obligation is a debt prohibited by the Constifution. 

"That the expense of renting armories is a current 

expense of the State is indicated by the fac.t that the 

Constitution, Art. XVI, Set, 46, makes it the duty of the 

Legislature toYprovide by law for organizing and disciplining the Militia of the State in such manner as they shall 

deem expedient. I' 

In response ,to this proposition and argument, the 

court said: 

"Finally, we held that the bonds provided for by the 

Act under consideration would create no debt against the 

State of Texas; nor is'the credit of the State pledged for 

the payment of such bonds, or interest thereon, or any part 

thereof, Such bonds would be payable solely from the rents, 

issues and profits to be derived from the operation or leasing of the Armory buildings; unless the Legislature in the 

exercise of its power and discretion, should see fit, when 

making its biennium appropriation, to include therein a sufficient sum of money to pay such bonds, or any part thereof. 

"The act is also assailed on the ground that the 

Legislature has exceeded its Constitutional authority by 
Honorable Arthur B. Knickerbocker - page 9 (O-5695 ‘1 

the undertaking to delegate to the Board the power to fix 

the rentals to be paid by the State, and that such effort 

on the part of the Legilature to delegate such power is in 

violation of Section 1 of Article 2 and Section 1, of Article 

3, of the Constitution. 

"The general rule prevails that, unless there is 

express authority given in the Constitution, the power 

of general legislation may not be delegated by the Legislature. 

See 9 Tex. Jur., Sec. 68, p. 493. However there are many 

powers that the Legislature may delegate to other bodies, in 

many instances, where the Legislature cannot itself practically or efficiently perform the functions required, there can be 

no doubt of its authority to designate some tribunal to perform the duties required to carrv out the ourposes of such 

legislature. In this State the Legislature has created the 

Railroad Commission, the Live Stock Commission, the Highway 

Commission, and many other agencies; and the trend of modern 

decisions is to uphold such laws." 

It seems that the court has, at least by implication, 

held that the statute imposed a duty on the Adjutant General 

to execute such lease contracts, an agent of the State, as 

are presented to him by the Board under the provisions of the 

Statute. 

In 1935, the Supreme Court in the case of Fort Worth 

Cavalry Club v, Sheppard, 83 S. W. (2nd) 660, in discussing 

the power of the Adjutant General to execute leases for 

National Guard Armories held that under the laws of this 

State the Adjutant General had no express right to execute 

lease contracts, such right was only by implication, and that 

right was found in the wording of the Appropriation Act making funds available to his department for his purpose. Thereafter in 1939, the 46th Legislature amended Article 5790, V.A.~ 

C.S., giving the Adjutant General the express right to execute 

lease contracts for armories, but this power was limited as 

follows~ 

11 

e D * .and the Adjutant General shall not lease or 

sublease any property for armory purposes in OP about any 

municipality from any person other than the Texas National 

Guard Armory Board, so long as adeauate facilities for such 

armory purposes in or about such municipality are available 

for renting from the Texas National Guard Armory Board." 

This amendment to Article 5790, when considered with 
Honorable Arthur B. Knickerbocker - page 10 (o-5695) 

Article 58901, seems conflicting, However, the evident purpose was to strengthen Article 58gOb by giving the Adjutant 

Qeneral the express right to execute leases with the Armory 

Board, since the Supreme Court had held in the Fort Worth 

Cavalry Club v. Sheppard, supra, that he had no express~power 

under the statutes C.o do this. we take this position since 

under the provision of Article 589Ob, the Texas National 

Guard Armory Board is expressly created for the purpose of 

acquiring, constructing , rending, controll'ing and maintaining - all National Guard Armories in the State of Texas, 

Sub-sec!Ezfj, 

the provisions in Article 589013, Section 2, 

wherein it is provided, 

II 

. 0 "that if at any time the State of Texas shall 

fail or refuse to pay the rental reserved in such lease or 

sublease, or shall fail or refuse to lease or sublease any 

such building and site, or to renew any existing lease or 

sublease thereon at the rental provided to be, paid. . D" 

is applicable only to the Legislature of this State, and 

does not vest any discretionary rights in the Adjutant 

General. 

Finally, we conclude that the Legislature intended 

that the Armory Board be vested with power to do all that is 

necessary to provide the State with National Guard Armories. 

To further this purpose, the Board was authorized to borrow 

money, to pledge the rents and profits to secure such 

indebtedness, such profits to be derived by ren%ing Armories 

to the State within the limitation of current appropriations 

made to said Board, and the Adjutant General was designated 

to act as the out the purposes intended. Fur,ther that the 

Adjutant General in executing these lease contracts was to 

perform a mere ministerial act, and was not vested with any 

discretion in the matter. 

JWR:mb 

APPROVEDDEC 2,1943 

Yours very truly 

ATTORNEY OENERAL OF TEXAS 

BY 

Gerald C. Mann 

Attorney General of Texas 

This Opinion Considered 

in Limited Conference and 

Approved. 

Jack W. Rowland 

Assistant