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AURTIN. TEXAS 78711 

May 30, 1975 

The Honorable Bevington Reed 

Commissioner, Coordinating Board 

Texas College and University System 

P. 0. Box 12788, Capitol Station 

Austin, Texas 78711 

Opinion No. H- 620 

Re: Applicability of the Texas 

Antiquities Code to proposed 

demolition of buildings by the 

Ilrllas Community College. 

Dear Dr. Reed: 

You have requested our opinion concerning the applicability of the 

Texas Antiquities Code, article 6145-9, V. T. C. S., to three structures 

owned by the Dallas County Community College District. Specifically 

your questions are: 

(1) Is section 6 of article 6145-9 overbroad, 

vague, undefinable, and without ascertainable limits 

and hence unenforceable, and does it constitute the 

taking of property without due process of law in 

violation of the State and Federal Constitutions? 

(2) Is the Dallas County Community College 

District required to obtain a permit from the 

Texas Antiquities Committee before demolishing 

the three westernmost structures of the El Centro 

College complex, Dalla,s, Texas, in view of the 

undisputed fact that the present El Centro building 

program was approved and begun in 1973 and that 

by April 8. 1975, when said buildings were placed 

on the National Register 90% of the funds allocated 

for the project had been committed in contracts? 

\ p. 2741 
- . 

The Honorable Bevington Reed page 2 (H-6201 

(3) If a political subdivision of the State of 

Texas such as the Dallas County Community College 

District, complies with the requirements of Article 

5421q, Texas Revised Civil Statutes, and in making 

its decision to demolish certain structures finds that 

there are no feasible alternatives to the removal of 

said structures, and no petition for review of said 

decision is made within the thirty days required by 

Section 3 of said statute, does that political subdivision 

nonetheless still have to obtain a demolition permit 

from the Texas Antiquities Committee? 

(4) Does Article 6145-9 (the Texas Antiquities 

Code), and in particular its Section 6, apply to the 

buildings’at hand, since said buildings have no 

connection to prehistoric and historical American 

Indian or aboriginal campsites, dwellings, and 

habitation sites? 

Your first question concerns the scope of article 6145-9, and its 

constitutionality. Section 6 provides: 

All other sites, objects, buildings, artifacts, 

implements, and locations of historical, archeological, 

scientific, or educational interest, including but 

expressly not limited to, those pertaining to prehistoric 

and historical American Indian or aboriginal campsites, 

dwellings, and habitation sites, their artifacts and 

implements of culture, as well as archeological sites 

of every character that are located in, on or under the 

surface of any lands bebnging to the State of Texas or 

by any county, city, or political subdivision of the 

state are hereby declared to be State Archeological 

Landmarks and are the sole property of the State of 

Texas and all such sites or items located on private lands 

within the State of Texas in areas that have been designated as a “State Archeological Landmark” as hereinafter 

provided, may not be taken, altered, damaged, destroyed, 

p. 2742 
The Honorable Bevington Reed - page 3 (H-620) 

salvaged, or excavated without a permit from, or 

in violation of the terms of such permit of, the 

Antiquities Committee. (Emphasis added). 

We need not reach the question of whether the State may take 

ownership of property from its political subdivisions without providing 

compensation, for your request concerns only the designation of Archeological 

Landmarks and the permit reqtirement., These provisions operate independently 

of the clause declaring such Landmarks “the sole property of the State of Texas. ” 

A permit requirement for the construction of buildings is a common 

exercise of the State’s police power. Meserole v. Board of Adjustment City of 

Dallas, 172 S. W. 2d 528 (Tex. Civ. App. -- Dallas 1943,no writ); City of Dallas 

v. Meserole, 155 S. W. 2d 1019 (Tex. Civ. App. -- Dallas 1941, writ ref. ‘d., 

W. o. m.); see Moody v. City of University Park, 278 S. W. 2d 912 (Tex. Civ. 

APP. -- Dxs 1955, writ ref’d n. r. e.). A state’s police power to protect 

the general welfare of its citizens has consistently been held to extend to the 

preservation of historic sites. Opinion of the Justices to the Senate, 128 

N. E. 2d 557 (Mass. 1955); City of Santa Fe v. Gamble - Skogmo, Inc., 389 

P. 2d 13 (N.M. 1964); City of New Orleans v. Levy, 64 So. 2d 798 (La. 1953); 

Rebman v. City of Springfield, 250 N. E. 2d 282 (App. Ct. Ill, 4th Dist. 1969); 

C_r., Mavor and Citv Council of Baltimore v. Mano Swartz, Inc., 299 A. 2d 

828 (Md. 1973). Maher v. City of New Orleans, 371 F. Supp. 653 (E. D. La. 

1974). 

In City of Dallas v. Crownrich, 506 S. W. 2d 654 (Tex. Civ. App. -- 

Tyler 1974, writ ref’d. n. r. e.), the Court held: 

A city such as Dallas would be entitled under its 

zoning auth0rit.y to zone a particular area as a 

historic district. 

The Texas Supreme Court has recognized the governmental interest in the 

preservation of historic sites and the application of the Antiquities Code thereto. 

San Antonio Conservation Soc,iety, Inc. v. City of San Antonio, 455 S. W. 2d 

743 (Tex. Sup. 1970). In addition, 

p. 2743 
The Honorable Bevington Reed - page 4 (H-620) 

The government under its police power always 

has the right to enact any and all legislation that 

may be reasonably necessary for the protection of 

the health, safety, comfort, and welfare of the public. 

Ek.parte Thomas, 174 S. W. 2d 958, 960 (Tex. Sup. 1943). 

Accordingly, it is our opinion that the designation of sites of historic interest 

as State Archeological Landmarks and the permit requirement of the Antiquities 

Code are valid exercises of the State’s police power. As such, no compensation 

is necessary for,losses resulting from the operation of the Act. State v. City 

of Austin, 331 S. W. 2d 737 (Tex. Sup. 1960); Town of Ascarate v. Villalobos, 

223 S. W. 2d 945 (Tex. Sup. 1949); Ellis v. Citv of West Universitv Place, 175 

S. W. 2d 396 (Tex.Sup. 1943). It is therefore our opinion that the Antiquities 

Code’s designation of historic sites as State Archeological Landmarks and its 

permit requirement are not unconstitutional as a taking of property without 

just compensation. 

There might, however, be particular instances 

in which decisions of the [Committee], because 

of peculiar hardship and remoteness from the 

legitimate purposes of the act, would be unconstitutional applications of it. Opinion of the Justices 

to the Senate, supraat 562. 

Indeed, there may be circumstances in which a site is of such slight historic 

interest and of such little utility that the denial of a permit would amount to 

an unreasonable and arbitrary exercise of the Committee’s power. Whether 

this is the case in this instance is a question of fact which can not be resolved 

in an opinion of this office. 

The second facet of your first question concerns the limits of the Act’s 

description of State Archeological Landmarks. Since your request pertains 

to sites of “historic interest, ” we will limit our discussion to the proper 

definition of that term. While the Antiquities Code contains no definition of 

“historic interest, ” 

[i]t is a settled rule of statutory interpretation that 

statutes that deal with the same general subject 

. . . are considered as being in pari materia . . . 

and [are to be] construed together. 53 Tex. Jur. 2d 

Statutes, $186, p. 280, 281, citing among other 

p. 2744 
. . 

The Honorable Bevlngton Reed, page 5 (H-620) 

authorities, County School Trustees of Orange 

County v. District Trustee.9 of Prairie View 

Common School Dist. No. 8, 153 S. W. 2d 434 

(Tex.Sup. 1941); Dallas County v. Lockhart, 96 

S. W. 2d 60 (Tex. Sup. .1936); Love v. City of 

Dallas, 40 S. W. 2d 20 (Tex. Sup. 1931). 

Article 6145, V. T. C. S., creates the Texas Historical Commission. We 

believe that references to “historic interest” in the Antiquities Code should 

be defined by examination of article 6145, for both provisions relate to the preservation of historic sites. Section 12 of article 6145 gives the Historical Commission the responsibility for marking sites significant in Texas and American 

history. Section 15 authorizes the Commission to certify the worthiness of 

preservation of historic sites. Section 9 designates the Commission as the 

administrator of the National Historic Preservation Act of 1966, 16 U.S. C. 

§ 470, et seq. Section 470a of that Act provides for a.national register of 

sites significant in American history. In our view, the term “historic interest” 

as contained in the Antiquities Code contemplates some governmental recognition of such interest and specifically those indicia referred to in article 

6145. Accordingly, it is our opinion that a site of “historic interest” under 

the Antiquities Code is a site which has been designated with a Texas Historical 

Marker, certified as worthy of preservation under section 15 of article 6145, 

or which is listed on the National Register pursuant to 16 U.S. C. §470a. By 

reference to article 6145, the term “historic interest” is given ascertainable 

limits and in our view the term is therefore not impermissibly vague. 

Your second question concerns the effect of contracts entered prior to the 

inclusion of these buildings on the National Register. Section 6 of the Antiquities Code prohibits the destruction of a State Archeological Landmark 

without a permit from the Antiquities Committee. The buildings became 

Landmarks on April 8, 1975, when they were listed on the National Register. 

Accordingly, they may not be destroyed without a permit. See, Attorney 

General Opinion H-250 (1974). Whether the denial of a permTin this instance 

would unconstitutionally impair these obligations would depend on factual 

matters not now before us. 

Your third question concerns whether a political subdivision must obtain a 

permit from the Antiquities Committee notwithstanding its prior compliance 

with article 5421q, V. T. C. S. In our opinion the two statutory provisions 

operate independently of one another. Article 5421q provides for a public hearing 

prior to the taking or use of any public land designated as a park, recreation 

p. 2745 
The Honorable Bevington Reed, page 6 (H-620) 

area, scientific area, wildlife refuge, or historic site, presumably to 

allow local residents to participate in the decision. The Antiquities Code 

is an exercise of the police power of the State to protect the general welfare 

of the entire State by preserving historic sites. Neither provision recognizes the other as superior, therefore both statutory procedures must be 

utilized. 

Your fourth question concerns the applicability of the Antiquities Code 

to sites other than those connected to “prehistoric and historical Am,erican 

Indian or aboriginal campsites, dwellings, and habitation sites. ” Section 6 

of the Antiquities Code provides a clear answer to this question; its application is “expressly not limited to” these sites. 

SUMMARY 

The Antiquities Code’s designation of State Archeological 

Landmarks and its requirement of a permit prior to their 

destruction is a valid exercise of the State’s police power and 

no compensation need be made for losses incident thereto. In 

a particular instance a site may be of such slight historic 

interest and little utility that a denial of a permit would constitute an unreasonable and arbitrary exercise of the Committee’s 

power. Whether this is the case in this instance involves queetiona 

of fact upon which we cannot rule. 

Sites of “historic interest” as contained in the Antiquities 

Code are those bearing a Texas Historical Marker, those 

certified by the Historical Commission as worthy of preservation, and those included on the National Register. Accordingly, 

the term “historic interest” is not ‘imp elmi‘ssibly vague. 

The Dallas Community College District must obtain a permit 

from the Antiquities Committee for the demolition of the three 

p. 2746 
. . 

The Honorable Bevington Reed, page 7 (H-620) 

19th Century bui,ldings involved, notwithstanding the 

existence of contracts for their destruction. Whether 

refusal of a permit would unconstitutionally impair 

the obligations of contracts would depend on factual 

matters not before US. 

The procedures of article 5421g, V. T. C. S., and 

those of the Antiquities Code are independent; both 

statutes must be satisfied. 

The application of the Antiquities Code is not 

limited to prehistoric and historical American Indian 

or aboriginal campsites, dwellings, and habitation 

sites. 

Very truly yours. 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

Opinion Committee 

p. 2747