P

JIM MAlTOX Attorney General

Supreme Court Bullding P. 0. BOX 12548 Austin, TX. 78711. 2543 51214752501 Telex 9101874.1387 Telecopier 512/475G?SS

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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 OpinionNo. JM-394

Re: WhetherTexas State Technical Institute may acquire land from the city of Harlingenunder certain circumstances

Dear Mr. Lowenf

ie1.d;:

You requested

an opinionrelatingto the acquisition of land from the city of Harlingenby the state for use by Texas State Technical Institute [hereinsfter TSTI] in vocational and technicaleducation.

You advise US that, in 1968, the city of Rarlingen adopted ordinancecalling Zen electionof the voters to approve or disapprove authority of the city commissionto 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 reversionof 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 describedarea,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 approximately22 acres to the Lover Rio Grande Valley Development Council for the e:3tablishment of a vocationalskills trainingcenter. 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 CameronCounty and Potter County, the 22 acreswere 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 propertyas providedby chapter 135 of the Texas EducationCode. 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 continuedgrowth and developmentof vocational

and technicalschooloperatedthereby 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 transferthe propertyto the state of Texas?

b. Is this an offer to any legal entity, including the state of Texas, which, once acceptedby the erection of buildings and the training of students in compliancewith 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 describedin 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 conveyedto.the state of Texas in tmst for and in behalf of the state of Texas?

f. Does the city of Flarliugen, in order to rescindthe Ordinance approved

by the voters In 1968, requim an election called for the purposeof rescinding the vote?

Are ary future conveyances subject to the'provisionsof article 542lc-12,V.T.C.S.,
or can the ps.rties continue to rely upon the previously

approvedOrdinance?

2. Does Texas estate TechnicalInstituteas 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 technicalinatitu,te?

p. 1803Mr. 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 providedhere is not intended to affirm the validity of any particularcontract. The value of the benefits to the city,whether suchbenefits furnishadequateconsideration for the transaction, and whether such benefitswould be deemed to be not less than the fair marketvalue of the propertyin question,
are fact questions that we cannotanswer.
The city of Harlingen, as a home rule city,has all the power not denied to it by the constitution and statutesof the state. However, the charter of a home rule city and ordinances passedpursuantto its charter authority cannot contain provisions inconsistentwith 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. - Beaumont1975,writ ref'd n.r.e) and cases cited therein; Attorney-General

OpinionM-1232 (1972). Wbei **the** legislature enacts a statute in conflict with a prior city ordinance,the city ordialnce is rendered ineffectiveexcept as to certainvested 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 IlexasSupreme 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 municipalcorporations do not acquire

vested rights againstthe state. 405 S.W.2dat 62.
Subsequentto 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., originallyenacted in 1969, is a general law gcveming the conveyanceof land owned by a political subdivisionof the state, whether the land is sold or exchanged for other land, Article 5421c-12 presently provides, in pertinent

part, that

Section 1. N,Jland owned by a political subdivision of the State of Texas may be sold or exchangedfor oth'er land without first publishing in a newspaper of general circulation in the county where the land Is located or in an

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

adjoiningcounty, 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 locationand the procedures under which sealed bids to purchase the land or offers to trade for the landmay be su'bmitted.

. .
Sec. 2. Bid procedures and publication requirementsas set forth in Section 1 of this Act shallnot be applicable in the sale or disposalof real property in:erestsbelonging to a political subdivision

in the followingcircumstances:
(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 subdivisionor other development control ordinances, in which went such land may be sold to the abutting

propertyowner or owners in proportion to their abutting cunership, such division between
owners to be made in an equitable manner:
(2) streetsor 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 proportfonto their abuttingownership, 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 proportionto their abutting ownership,

such division

between owners to be made in an equitable

nanner;
(4) any land or interest therein which was originallyacquked for the purpose of streets, rights-of-wayor easements which the political subdivision

chooses to trade or exchange as consideration for other land acquired for streets, rights-of-way

or easements,

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

(6) any interestin land that is conveyed by a political subdiv,ision to a governmental entity having the power of eminentdomain.

. . . .
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 appraisalobtained by the political sabdivision, which shall be conclusiveof the fair marketvalue thereof.

V.T.C.S.art. 5421c-12 (set: Acts 1985, 69th Leg., ch. 367, at 2667 for amended 52). -_

Whether the city of Aarlingenand the state of Texas entered into
a binding contractin 1968 - and the terms of such a contract,if any

- involvecomplexquestions of fact and interpretations of the city's charter and ordinance. We are not equippedto 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 contractmay be made by ,:hestate, but the state nay not enter a contractual

relationship

that imposeson 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 creatingdebts and pr'events contracting

on the basis of anticipated revenues. The state nay enter into an indefiniteor long-term binding contract involving, the expenditureof appropriatedfunds if payment is conditionedor. the availabilityof appropriated funds. See Attorney General Opinion MW-70 (1979). One session of the legislaturecannot bind subsequentsessionsor mandate the continued existenceof TSTI or its biennial funding. The consideration for and durationof a contract,if any, between the city and the state would be limited to the period duringwhich the legislaturecontinuesthe operationand fundingof t:re Harlingenfacilityof 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 validityand 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 restrictionson the sale and conveyanceof land by politicalsubdivisions are uot applicable when the grantee is another governmentalagency having the power of eminent domain over the property involved. Governing bodieswith the power of eminentdomain

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

do not need the cousentof en electorate to obtain property they need for public purposes. Political subdivisionshaving the power of eminent domain may avoid condemnationproceedingswhen they agree among themselvesas to the paramount public use of land owned by ona of them. See KingsvllleIndependent SchoolDistrictv. 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 Countyv. Cit of El Paso, 357 S.W.2d 783 (Tex.Civ. APP. "+%ZiZZolton v. City of Waco, 447 - El Paso 1962, no writ

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

H-1256 (1978);

H-108 (1973);

H-93 (1973).

We conclude, however!, that TSTI does not have the power of eminentdomain. The right of eminentdomain is the inherent power of the sovereignto take proylarty for public use and welfare, provided adequate compensationis 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 EducationCode provides only that the board of TSTI "may accept or acquireby purchase"land and~facilities in threenamed counties. No statutory provisionof 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 interestin land that is conveyedby a political subdivisionto o governmentalentity having the power of eminent domain." Acts 19815, 69th Leg., ch. 367, at 2668. The facts presentedto us indicatethat none of the exemptions in section2 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 requirementsshall 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 (formerlyV.T.C.S. art. 1;4.21q) requires notice and a hearing and certain findings before :Landdesignated or utilized as a "park, recreationarea, scientifi:area, wildlife refuge, or historic site" may be disposedof by a muuicipality or other governmental entities. Section 26.001 does not ap?:Ly to the propertyabout which you inquire since that propertyhas not to our knowledgebeen designatedfor any of those purposes. See Al:t:orney General OpinionsR-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)

entitledProtectionof Public Parks and Recreational Lands, does not define the term "park,"bui: we do not believe the term is intendedto apply to the HarlingenIndustrial Air Park.

SUMMARY
Article 5+21c-:l2, V.T.C.S., enacted after an ordinanceof the city of Harlingenauthorized the conveyanceof 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. Subsequentto its original conveyance,the land was transferredto the state for usc by Texas State TechnicalInstitute. Whether the city and TSTI entereda binding contractual

relationship

prior to article5421c-12 and, if so, the terms of the contract, involve fact questionsaat3interpretations of the city's charter and ordj,nances that this agency is not equipped to answzc in the opinionprocess. TSTI has not bean granted the power of eminentdomain. The property in question is not subject to the requirementsof section 26.001, Texas Parks and WildlifeCode.

JACK HIGHTOWER FirstAssistant

AttorneyGeneral

MARY KELLER Executive

Assistant

AttorneyGeneral

ROBERT GRAY SpecialAssistant

AttorneyGeneral

RICK GILPIN Chairman,

OpinionCommittee
Prepared

by Nancy Sutton Assistant

AttorneyGeneral Very truly your I 4 1

JIM MATTOX AttorneyGeneralof Texas

p. 1808