Hon. Gordon K. Shearer OpinionNo. v-1558 

Executive Secretary 

Texas State Parks Board Re: Authority of the Texas 

Austin, Texas State Parks Board to 

lease concessions in 

MacKenzie State Park to 

the City of Lubbock for 

a period of ninety-nine 

Dear Sir: years. 

You have requested an opinion upon the following problems: 

"(1) Does Senate Bill 19 amend Article 

6070a, insofar as limiting the granting of 

concession contracts to once year? . . . 

"(2) If Senate Bill 19 does not amend 

Art. 6070a Insofar as limiting the period for 

the granting of concessions, is there any 

other legislation which would prohibit the 

granting of a 99 year concessions lease, or 

is there any lack of authority on the part 

of the State Parks Board to grant a 99 year 

concessions lease?" 

You further state: 

"The reason we desire this opinion is 

that we are desirous of entering into a long 

term concessions lease with the City of 

Lubbock. However, we do want to know whether 

or not we have this authority before we negotiate further with the City of Lubbock." 

Article 60'i'oa, V.C.S., as amended in 1941, provides as follows: 

"Section 1. The State Parks Board is 

hereby authorized to operate or grant concessions in State Parks and to operate concessions or make concession contracts for 

any,causeway, beac,h drive, or other improvements in connection with State Park 
Hon. Gordon K. Shearer, Page 2 - v-1558 

sites wherever feasible. The revenue thus 

earned by the State Parks Board shall, when 

collected, be.placed in the State Treasury. 

The Board may make such rules and regulations for the carrying out of this Act and 

the laws of this State relative to State 

Parks, as it max deem necessary not in conflict with law. 

Article 607oe, V.C.S. (Senate Bill 19, Acts 

51st Leg., 1st C.S. 1950, ch.17, p.78), contains the 

following provisions: 

"Section 1. Separate facilities shall 

be furnished In the system of State parks 

for the white and Negro races, and Impartial 

provision shall be made for both races. 

'Sec. 2. The State Parks Board is authorized: 

"(a) To make rules and regulations 

for the use of the State Parks and the 

facilities therein by the white and Negro 

races by providing separate parks or separate facilities within the same parks, on 

such basis as will furnish equal recreational opportunities and at the same time 

protect and preserve harmony, peace, welfare, 

and safety of the State and the community; 

"(b) To close any park or facility or 

facilities or areas in the State parks where 

separate equal facilities for the white and 

Negro races cannot be furnished, and to reopen them when such facilities are available; 

"(c) To lease annually to the highest 

bidder any park or any portion thereof, or 

facility therein, when deemed necessary or 

advisable for protection and upkeep of the 

property. Such lease shall be previously 

advertised once a week for four weeks in a 

daily or weekly newspaper in the county in 

which the park is located. If the county 
Hon..Qordon K..Sh,earer, Page 3 - v-1558 

.~ 

has no such newspaper, such advert~isement 

may be run in a similar newspaper in any 

adjoining ,county. The Board is authorized 

to make additional rules for such leasing. 

The proceeds derived from such lease are 

here~by appropriated to the State Parks Board 

to be used for the improvement of the State 

parks system, and to pay for the expenses 

of advertising the sale or lease. 

"Sec. 3. The fact that the policy of 

the State in requiring separate park facllities for white and Negro citlz~ens is necessary 

to preserve the public peace and welfare, and 

to protect the privileges of both the whit~e 

and Negro citizens in the use of the State 

parks; and the further fact that such policy 

should be set forth by statutory enactment 

giving additional powers to the State Parks 

Board to carry out such policy, create an 

emergency and an imperative public necessity 

that the Constitutional Rule requiring bills 

to be read on three several days in each 

House be suspended; and said Rule is hereby 

suspended, and that this Act shall take 

effect and be in force from and after its 

passage, and it is so enacted‘" 

Your first question involves the problem of 

whether the provision in Section 2(c) of Article 607oe, 

vic.s., for 'annual" leasing of park facilities impliedly repeals Article 6070a, which places no time limitation 

upon the concession leases made by your Board. This 

problem is controlled by the following rule of statutory construction announced bv the Texas Sunreme Court 

,2'; 

129-Tex. 275, 283, 102 S.W. 

"Repeal-of laws by implication is 

not favored. 39 Tex.Jur., Section 75, p.140: 

59 C.J., Section 510, p. ~905. In the absence 

of an express repeal by statute, where there 

is no positive repugnancy between the provisions of the old and new statutes, the old 

and new statutes will each be construed so 
Hon. Gordon K. Shearer - Page 4 - v-1558 

as to give effect, if possible, to both 

statutes. 39 G.J. Section 75, ~.140.~ 

In thus construing the two provisions, the following 

considerations found in 1 Sutherland, Statutory Construction ~(3rd ed.1943) 454 should be kept in mind: 

“Repealing statutes are subject to 

the general rules of statutory construction 

applicable to all legislative enactments. 

Thus, in determining whether or not a repeal has been effectuated, the environment, 

association and character of the statute 

in its field of operation, the history of 

previous legislation, the legislative history of the Act, and the nature of the defect sought to be remedied by its enactment 

are all important factors to be considered 

by the courts." 

In conformance with the above rules of statutory construction, the annual leasing provision in 

Article 6070e must be construed as an integral part of 

the entire act and therefore as a grant to the Parks 

Board of additional power to enable it better to 

administrate the segregation policies embodied into 

the legislation. The correctness of this result is bolstered by the clause, "when deemed necessary or advisable 

for protection and upkeep of the property," which follows 

the annual leasing provision In Article 607oe, and by 

the statement in the emergency clause of Article 6070e 

that the act gives "additional powers to the State 

Parks Board to carry out such policy." 

In answer to your second question, we have 

found no legislation or case law which deprives the 

Parks Board of authority to lease the concessions in 

MacKenzie State Park for a period of ninety-nine years. 

Article 8, Section 6, of the Texas Constitution prohlbits the making of appropriations for a longer term than 

two years, but the contract you contemplate requires no 

appropriation. It has been held that an executive 

board may contract for as long a term as it desires if 

there is no legislation limiting it and if no debt is 

created which would bind a future legislature. Charles 

Scribners Sons v. Marrs, 114 Tex. 11, 262 S.W. Y-4). 
. 

Hon. Gordon K. Shearer - Page 5 - v-1558 

A further problem which your proposed transaction raises is whether the ninety-nine year lease you 

contemplate is actually a sale rather than a lease. 

Under the following ,rule stated in 3 Thompson, && 

Property (Perm.ed. 1939) 236, it must be held,to be a 

lease, despite Its unusually long duration: 

"In the absence of any statute to 

the contrary, a lease ordinarily may be made 

for any length of time the partiesmay wish 

. . . Leases may at law be for years or 

life or of perpetual duration. Indeed, they 

may be made for any period which will not 

exceed the interest of the grantor in the 

premises." 

This opinion, therefore, in no way passes upon the 

authority of the State Parks Board to sell concession 

rights. 

You are therefore advised that the State 

Parks Board has the authority under Article 6070a to 

lease the concessions In MacKenzie State Park for a 

period of ninety-nine years, and that this authority 

is neither repealed by Article 607oe nor restricted 

by other existing legislation. This opinion is not 

to be construed as passing upon the question as to 

the authority of the City of Lubbock under its present 

charter to operate concessions In a State park. 

SUMMARY 

Article 6070a, V.C.S., gives the 

Texas State Parks Boatid the authority 

to lease concessions in MacKenzie State 

Park for a period of ninety-nine years. 

This authority is not repealed by Article 
Hon. Gordon K. Shearer - Page 6 - v-1558 

6070e (Acts 51st Leg., 1st C.S. 1950, 

ch.17, p.78) nor restricted by other 

legislation. 

APPROVED: 

Jesse P. Luton. Jr. 

Landpivision 

Charles D. Mathews 

First Assistant 

TB:bt 

Yours very truly, 

PRICE DANIEL 

Attorney General 

By&-PA 

Thomas Black 

Assistant