P 

JIM MAlTOX 

Attorney General 

Supreme Court Bullding 

P. 0. BOX 12548 

Austin, TX. 78711. 2543 

51214752501 

Telex 9101874.1387 

Telecopier 512/475G?SS 

714 Jackson, Suite 700 

Dallas. TX. 752024509 

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Houston, TX. 77002.3111 

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Lubbock, TX. 79401.3479 

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McAllen, TX. 78501.1885 

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San Antonio, TX. 782052797 

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An Equal Opportunltyl 

Afflrmatlve Action Employer 

The Attorney General of Texas 

Declnaber 19, 1985 

Mr. Ralph Lovenflc!ld 

Chairman 

Board of Regents 

TSTI System 

P. 0. Box 1308 

Waco, Texas 767K 

Opinion No. JM-394 

Re: Whether Texas State Technical 

Institute may acquire land from 

the city of Harlingen under certain 

circumstances 

Dear Mr. Lowenf ie1.d;: 

You requested an opinion relating to the acquisition of land from 

the city of Harlingen by the state for use by Texas State Technical 

Institute [hereinsfter TSTI] in vocational and technical education. 

You advise US that, in 1968, the city of Rarlingen adopted 

ordinance calling Zen election of the voters to approve or disapprove 

authority of the city commission to convey all or part of approximately 118 acres zw "determined advisable by the city commission, from 

time to time," for the restrictive purpose of establishing 

operating a vocat:lonal and technical training institute and with 

reversion of the title in the event of a breach of the restriction. 

Earllngen, Ordimlca No. 68-11 (May 16, 1968). In 1968, the voters 

approved such a c,anveyance of the land and improvements in the described area, which constitutes a total of 118.6 acres at the Harlingen 

Industrial Air Park (formerly the United States government's Harlingen 

Air Force Base). Also in 1968, the city of Harlingen conveyed 

approximately 22 acres to the Lover Rio Grande Valley Development 

Council for the e:3tablishment of a vocational skills training center. 

Aftar the legisla,ture created TSTI in 1969 with a board of regents 

authorized to accc!rlt, in the name of the state, the conveyance of land 

and facilities in Cameron County and Potter County, the 22 acres were 

transferred to the state for use by TSTI. See Acts 1969, 61st Leg., 

ch. 179, at 515. TSTI continuously has occusd, developed, and used 

the property as provided by chapter 135 of the Texas Education Code. 

Since the original conveyance, 'the city from time to time 

transferred to the state of Texas other tracts of land from 

original 118 acres for the continued growth and development of 

vocational and technical school operated there by TSTI. 

You ask the mllowing: 

1. 1:s the election vhich was held on the 11th 

day of June, 1968, as set forth in the Ordinance 

identified as 68-11, valid in the following 

respectr;: 
Mr. Ralph Lowenfield - Page 2 (JM-394) 

a. Does it define the adequate consideration for the c,ity of Rarlingen to transfer the 

property to the state of Texas? 

b. Is this an offer to any legal entity, 

including the state of Texas, which, once 

accepted by the erection of buildings and the 

training of students in compliance with the 

ordinance, corstitutes an offer and acceptance 

and binding contract? 

c. Are the subsequent transfers of fee 

simple, of the title to the state of Texas of 

tracts of land within the area described in the 

Ordinance (6lkll). a ratification of the 

Ordinance? 

d. Is the Ordinance (68-11). approved by 

the voters of Rarlingen, still in full force 

and effect and binding upon the present and 

future city ctmsrlssions? 

e. Does th,e city of Rarlingen hold the 

title to the remaining property yet to be 

conveyed to.the state of Texas in tmst for and 

in behalf of the state of Texas? 

f. Does the city of Flarliugen, in order to 

rescind the Ordinance approved by the voters In 

1968, requim an election called for the 

purpose of rescinding the vote? 

Are ary future conveyances subject to 

the'provisions of article 542lc-12, V.T.C.S., 

or can the ps.rties continue to rely upon the 

previously approved Ordinance? 

2. Does Texas estate Technical Institute as an 

agency of the state of Texas have the authority of 

eminent domain :Ln the counties identified in 

chapter 135 of the Education Code wherein it 

specifies its authority to acquire title to 

property? 

3. May the city of Rarlingen donate and convey 

a tract of land to the state of Texas for use in 

building and operating a state vocational and 

technical inatitu,te? 

p. 1803 
Mr. Ralph Lowenfield - Page 3 (JM-394) 

4. If the cl.t:y may make a donation to the 

state of Texas. once public hearings are held 

under the provisj,an of article 54214, V.T.C.S., is 

it then binding csn. future city officials? 

These questions are so intizrtwined with issues of fact that we cannot 

properly address them here in a comprehensive manner. Rawever, we 

will attempt to offer some general guidance regarding the strictly 

legal issues involved. Th: information provided here is not intended 

to affirm the validity of any particular contract. The value of the 

benefits to the city, whether such benefits furnish adequate consideration for the transaction, and whether such benefits would be deemed 

to be not less than the fair market value of the property in question, 

are fact questions that we cannot answer. 

The city of Harlingen, as a home rule city, has all the power not 

denied to it by the constitution and statutes of the state. However, 

the charter of a home rule city and ordinances passed pursuant to its 

charter authority cannot contain provisions inconsistent with the 

Texas Constitution or nenere.1 laws of the state. Tex. Const. art. XI. 

55; V.T.C.S. art. 1165; City of Nassau Bay v. City of Webster, 600 

S.W.2d 905, 910 (Tex. I%: App. - Bouston [lst Dist.] 1980). writ 

ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex. 1980); Royer v. RitK 

531 S.W.2d 448, 450 (Tex. Civ. APP. - Beaumont 1975, writ ref'd n.r.e) 

and cases cited therein; Attorney-General Opinion M-1232 (1972). Wbei 

the legislature enacts a statute in conflict with a prior city 

ordinance, the city ordialnce is rendered ineffective except as to 

certain vested rights. See Deacon v. City of Euless, 405 S.W.Zd 59, 

",;v.'T;;* 1_'6;;;s,g++$4;~f iy;.',4y* 'I'd ,gz; 

v. City of Euless, the Ilexas Supreme Court pointed out that the 

Legislature cannot, by retmactive legislation applicable to municipal 

corporations, destroy or impair vested rights which persons have 

acquired in their relationships with the municipal corporations, but 

municipal corporations do not acquire vested rights against the state. 

405 S.W.2d at 62. 

Subsequent to the adoption of the city ordinance in 1968, the 

legislature enacted a limitation on the power of cities to sell land 

owned by a city. Article 5421c-12, V.T.C.S., originally enacted in 

1969, is a general law gcveming the conveyance of land owned by a 

political subdivision of the state, whether the land is sold or 

exchanged for other land, Article 5421c-12 presently provides, in 

pertinent part, that 

Section 1. N,J land owned by a political subdivision of the State of Texas may be sold or 

exchanged for oth'er land without first publishing 

in a newspaper of general circulation in the 

county where the land Is located or in an 

p. 1804 
Mr. Ralph Lowenfield - Page 4 (x-l-394) 

adjoining county, if there is no such newspaper, a 

notice that the land is to be offered for sale or 

exchange to the g'aneral public, its description, 

its location and the procedures under which sealed 

bids to purchase the land or offers to trade for 

the land may be su'bmitted. . . 

Sec. 2. Bid procedures and publication requirements as set forth in Section 1 of this Act 

shall not be applicable in the sale or disposal of 

real property in:erests belonging to a political 

subdivision in the following circumstances: 

(1) narrow st.rips of land, or land so shaped 

or so small as to be incapable of being used 

independently as zoned or under applicable subdivision or other development control ordinances, 

in which went such land may be sold to the 

abutting property owner or owners in proportion to 

their abutting cunership, such division between 

owners to be made in an equitable manner: 

(2) streets or alleys, whether owned in fee or 

used by easement,, in which event such land or 

interest may be sold to the abutting owner or 

owners in proportfon to their abutting ownership, 

such division between owners to be made in an 

equitable manner; 

(3) all types, of easements where the abutting 

property owner 0:: owners also own the underlying 

fee simple title, in which event such land or 

interest may be sold to the abutting property 

owner or owners in proportion to their abutting 

ownership, such division between owners to be made 

in an equitable nanner; 

(4) any land or interest therein which was 

originally acquked for the purpose of streets, 

rights-of-way or easements which the political 

subdivision chooses to trade or exchange as consideration for other land acquired for streets, 

rights-of-way or easements, including transactions 

which may be partly for cash and partly by trade 

or exchange; 

(5) land owned by a political subdivision 

which it desirer; to have developed by contract 

with an independent foundation; or 

p. 1805 
Mr. Ralph Loweufleld - Pago 5 (JM-394) 

(6) any interest in land that is conveyed by a 

political subdiv,ision to a governmental entity 

having the power of eminent domain. 

. . . . 

Sec. 4. Any conveyance, sale or trade made 

under the exemptl.cms set forth in Section 2, shall 

never be for leac: than the fair market value of 

the land or inxrest being conveyed, sold, or 

traded, as detenained by an appraisal obtained by 

the political sabdivision, which shall be conclusive of the fair market value thereof. 

V.T.C.S. art. 5421c-12 (set: Acts 1985, 69th Leg., ch. 367, at 2667 for 

amended 52). 

-_ 

Whether the city of Aarlingen and the state of Texas entered into 

a binding contract in 1968 - and the terms of such a contract, if any 

- involve complex questions of fact and interpretations of the city's 

charter and ordinance. We are not equipped to answer such questions 

in the opinion process. Hbwever , the ability of the state and an 

agency of the state to enxr into a contract is not unlimited. The 

Texas Constitution is sileat as to the length of the term for which a 

contract may be made by ,:he state, but the state nay not enter a 

contractual relationship that imposes on it an obligation for a period 

in excess of two years. Article VIII, section 6 of the Texas 

Constitution provides that oo appropriation nay be made for a period 

longer than two years. Axicle III, section 49 prohibits the state 

from creating debts and pr'events contracting on the basis of anticipated revenues. The state nay enter into an indefinite or long-term 

binding contract involving, the expenditure of appropriated funds if 

payment is conditioned or. the availability of appropriated funds. 

See Attorney General Opinion MW-70 (1979). One session of the 

legislature cannot bind subsequent sessions or mandate the continued 

existence of TSTI or its biennial funding. The consideration for and 

duration of a contract, if any, between the city and the state would 

be limited to the period during which the legislature continues the 

operation and funding of t:re Harlingen facility of TSTI. See City of 

Big Spring V. Board of Ccurtrol, 389 S.W.2d 523 (Tex. Cx App. - 

Austin 1965), e, 404 !3.W.2d 810 (Tex. 1966) (relating to the 

validity and terns of a written contract between a city and the state 

whereby the city furnishes water to a hospital established and 

operated by the state at the city). 

The Texas courts have held that numerous statutes prescribing 

procedures and restrictions on the sale and conveyance of land by 

political subdivisions are uot applicable when the grantee is another 

governmental agency having the power of eminent domain over the 

property involved. Governing bodies with the power of eminent domain 

p. 1806 
Mr. Ralph Lowenfield - Page 6 (JM-394) 

do not need the cousent of en electorate to obtain property they need 

for public purposes. Political subdivisions having the power of 

eminent domain may avoid condemnation proceedings when they agree 

among themselves as to the paramount public use of land owned by ona 

of them. See Kingsvllle Independent School District v. Crenshaw, 252 

S.W.2d 102nTex. Cl". App.:- San Antonio 1943, writ ref'd) (adopting 

in full the opinion In KJ.ngsville Independent School District v. 

Crenshaw, 164 S.W.2d 49 (Tex. Civ. App. - San Antonio 1942, writ ref'd 

'm; El Paso County v. Cit of El Paso, 357 S.W.2d 783 (Tex. Civ. 

APP. - El Paso 1962, no writ "+%ZiZZolton . v. City of Waco, 447 

S.W.2d 718 (Tex. Cl". App. .- Waco 1969, writ ref'd n.r.e.); Attorney 

General Opinions H-1256 (1978); H-108 (1973); H-93 (1973). 

We conclude, however!, that TSTI does not have the power of 

eminent domain. The right of eminent domain is the inherent power of 

the sovereign to take proylarty for public use and welfare, provided 

adequate compensation is made. See Maberry v. Pedernales Electric 

Cooperative, Inc., 493 S.V.2d 268-. Civ. App. - Austin 1973, writ 

ref'd n.r.e.). An aaencv o,r oolitical subdivision of the state has 

only the power of em&t domain expressly conferred on it by the 

legislature. See Hall v. \Iilbarger County. 37 S.W.2d 1041 (Tex. Civ. 

APP. - Amarill~931), aff';i, 55 S.W.2d 797 (Tex. Come'n App. 1932). 

Section 135.02(c) of the Taras Education Code provides only that the 

board of TSTI "may accept or acquire by purchase" land and~facilities 

in three named counties. No statutory provision of which we are aware 

grants authority to the board of TSTI to acquire property by 

condemnation. 

The Sixty-ninth Leg:tslature amended section 2 of article 

5421c-12, V.T.C.S., to exempt from the bid procedures and publication 

requirements of that act "sny interest in land that is conveyed by a 

political subdivision to o governmental entity having the power of 

eminent domain." Acts 19815, 69th Leg., ch. 367, at 2668. The facts 

presented to us indicate that none of the exemptions in section 2 are 

applicable to the land in question. Section 4 of article 5421c-12 

still provides, however, that a conveyance exempt from bid procedures 

and notice requirements shall not be made for consideration that is 

less than the fair marks% value of the land or interest being 

conveyed. 

Your questions suggezat a need to comply with article 5421q, 

V.T.C.S. Section 26.001 of the Texas Parks and Wildlife Code 

(formerly V.T.C.S. art. 1;4.21q) requires notice and a hearing and 

certain findings before :Land designated or utilized as a "park, 

recreation area, scientifi: area, wildlife refuge, or historic site" 

may be disposed of by a muuicipality or other governmental entities. 

Section 26.001 does not ap?:Ly to the property about which you inquire 

since that property has not to our knowledge been designated for any 

of those purposes. See Al:t:orney General Opinions R-108 (1973); E-93 

(1973); M-788 (1971). Chapter 26 of the Parks and Wildlife Code, 

p. 1807 
. 

Mr. Ralph Lowenfield - Page 7 (JM-394) 

entitled Protection of Public Parks and Recreational Lands, does not 

define the term "park," bui: we do not believe the term is intended to 

apply to the Harlingen Industrial Air Park. 

SUMMARY 

Article 5+21c-:l2, V.T.C.S., enacted after an 

ordinance of the city of Harlingen authorized the 

conveyance of 113 acres for use as a vocational 

training school and after the conveyance of 22 

acres from that tract, limits the power of cities 

to sell land owna by cities. Subsequent to its 

original conveyance, the land was transferred to 

the state for usc by Texas State Technical Institute. Whether the city and TSTI entered a binding 

contractual relationship prior to article 5421c-12 

and, if so, the terms of the contract, involve 

fact questions aat3 interpretations of the city's 

charter and ordj,nances that this agency is not 

equipped to answzc in the opinion process. TSTI 

has not bean granted the power of eminent domain. 

The property in question is not subject to the 

requirements of section 26.001, Texas Parks and 

Wildlife Code. 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Nancy Sutton 

Assistant Attorney General 

Very truly your I 4 1 

JIM MATTOX 

Attorney General of Texas 

p. 1808