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 theperiod for the granting of concessions, is there any other legislationwhich would prohibit the granting of a 99 year concessions lease, or is there any lack of authority on thepart of the State Parks Board to grant a 99 year concessions lease?"

You further state:

"The reasonwe desire this opinion is thatwe are desirous of entering into a long term concessions leasewith the City of Lubbock. However, we do want to know whether
or not we have this authoritybeforewe negotiate furtherwith 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 concessionsor make concession contracts for any,causeway,beac,h drive, or other improvements in connectionwith State ParkHon. Gordon K. Shearer, Page 2 - v-1558

siteswherever 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 thisAct and the laws of this State relative to State Parks, as it max deem necessary not in conflictwith law.

Article 607oe,V.C.S. (SenateBill 19,Acts 51st Leg., 1st C.S. 1950, ch.17,p.78), contains the followingprovisions:

"Section 1. Separate facilities shall be furnished In the system of State parks for thewhite and Negro races, and Impartial provision shallbe 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 thereinby thewhite and Negro
races by providing separateparks or separate facilitieswithin the sameparks, on suchbasis aswill furnish equal recreationalopportunitiesand at the same time protect and preserve harmony, peace,welfare, and safety of the State and the community;

"(b) To close any park or facilityor facilitiesor areas in the Stateparks where separateequal facilities for thewhite and Negro races cannotbe furnished, and to reopen themwhen such facilitiesare 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 shallbe previously advertisedonce aweek for fourweeks in a daily or weekly newspaper in the county in which the park is located. If the countyHon..Qordon K..Sh,earer, Page 3 - v-1558

.~

has no such newspaper, such advert~isement may be run in a similarnewspaper in any adjoining ,county. The Board is authorized tomake 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 improvementof 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 separatepark facllities forwhite and Negro citlz~ens is necessary to preserve the public peace andwelfare, and to protect theprivileges of both thewhit~e and Negro citizens in theuse of the State parks; and the further fact that suchpolicy shouldbe set forth by statutoryenactment giving additionalpowers to the State Parks Board to carry out such policy, create an emergency and an imperativepublic necessity that the ConstitutionalRule requiring bills to be read on three severaldays in each House be suspended;and saidRule is hereby suspended, and that thisAct 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 theprovision 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 leasesmade by your Board. This problem is controlledby the following rule of statutory construction announcedbv 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 isno positive repugnancybetween the provisions of the old and new statutes, the old and new statuteswill each be construed soHon. 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 ~(3rded.1943) 454 shouldbe kept inmind:

“Repealing statutes are subject to the general rules of statutory construction applicable to all legislative enactments. Thus, in determiningwhether 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 legislativehistory of theAct, and thenature of the defect sought tobe remedied by its enactment
are all important factors to be considered by the courts."

In conformancewith the above rules of statutory construction, the annual leasingprovision in Article 6070e must be construed as an integralpart of the entire act and thereforeas a grant to the Parks Board of additionalpower to enable it better to administrate the segregationpolicies embodied into the legislation. The correctness of this result is bolsteredby the clause, "when deemed necessary or advisable for protection and upkeep of the property,"which follows the annual leasingprovision In Article 607oe, and by the statement in the emergency clause of Article 6070e that the act gives "additionalpowers to the State Parks Board to carry out suchpolicy."

In answer toyour second question,we have foundno legislation or case lawwhich deprives the Parks Board of authority to lease the concessions in MacKenzie State Park for a period of ninety-nineyears. Article 8, Section 6, of the Texas Constitutionprohlbits themaking of appropriations for a longer term than two years, but the contractyou contemplaterequires 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 createdwhich 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 furtherproblemwhich your proposed transaction raises is whether the ninety-nineyear lease you contemplate is actually a sale rather than a lease. Under the following ,rulestated 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 ordinarilymay 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 periodwhich 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 authorityunderArticle 6070a to lease the concessions InMacKenzie State Park for a period of ninety-nineyears, and that this authority is neither repealedby Article 607oe nor restricted by other existing legislation. This opinion is not to be construed as passing upon the question as to the authorityof 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 Boatidthe authority to lease concessions inMacKenzie State Park for a period of ninety-nineyears. This authority is not repealed by ArticleHon. Gordon K. Shearer - Page 6 - v-1558

6070e (Acts 51st Leg., 1st C.S. 1950, ch.17, p.78) nor restrictedby 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