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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 ofthe Texas Antiquities Code to proposed demolition of buildings by the Ilrllas Community College. Dear Dr. Reed:

You have requested our opinion concerning the applicability ofthe 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 6ofarticle 6145-9 overbroad,

vague, undefinable, and without ascertainable limits and hence unenforceable, and does it constitute the taking ofproperty without due process oflaw in violation ofthe State and Federal Constitutions? (2) Is the Dallas County Community College District required to obtain apermit from the Texas Antiquities Committee before demolishing the three westernmost structures ofthe El Centro College complex, Dalla,s, Texas, in view ofthe undisputed fact that the present El Centro building program was approved and begun in 1973and that by April 8. 1975, when said buildings were placed onthe National Register 90% ofthe funds allocated for the project had been committed in contracts?

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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 ofArticle 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 3of 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 ofarticle 6145-9, and its constitutionality. Section 6provides: All other sites, objects, buildings, artifacts, implements, and locations ofhistorical, 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 ofany lands bebnging to the State of Texas or byany county, city, or political subdivision ofthe state are hereby declared to be State Archeological Landmarks and are the sole property ofthe 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. 2742The Honorable Bevington Reed - page 3 (H-620)

salvaged, or excavated without a permit from, or in violation ofthe terms of such permit of, the Antiquities Committee. (Emphasis added). We need not reach the question ofwhether the State may take ownership ofproperty from its political subdivisions without providing compensation, for your request concerns only the designation ofArcheological Landmarks and the permit reqtirement., These provisions operate independently ofthe clause declaring such Landmarks “the sole property ofthe State of Texas. ”

A permit requirement for the construction of buildings is a common exercise ofthe State’s police power. Meserole v. Board ofAdjustment City of Dallas, 172S.W. 2d 528 (Tex. Civ. App. -- Dallas 1943,no writ); City of Dallas v. Meserole, 155S.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 ofits citizens has consistently been held to extend to the preservation ofhistoric sites. Opinion ofthe 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, 64So. 2d 798 (La. 1953); Rebman v. City ofSpringfield, 250 N.E. 2d 282 (App. Ct. Ill, 4th Dist. 1969); C_r., Mavor and Citv Council of Baltimore v. Mano Swartz, Inc., 299A. 2d 828 (Md. 1973). Maher v. City ofNew Orleans, 371F. Supp. 653 (E. D. La. 1974). In City of Dallas v. Crownrich, 506 S.W. 2d654 (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 aparticular area as a historic district. The Texas Supreme Court has recognized the governmental interest in the preservation ofhistoric sites and the application ofthe Antiquities Code thereto. San Antonio Conservation Soc,iety, Inc. v. City ofSan Antonio, 455 S.W. 2d 743 (Tex. Sup. 1970). Inaddition,

p. 2743The 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 ofthe public. **Ek.parte** Thomas, **174 S.** W. 2d 958, 960 (Tex. Sup. 1943). Accordingly, it is our opinion that the designation ofsites ofhistoric interest as State Archeological Landmarks and the permit requirement ofthe Antiquities Code are valid exercises ofthe State’s police power. As such, no compensation is necessary for,losses resulting from the operation ofthe Act. State v. City ofAustin, 331 S.W. 2d 737 (Tex. Sup. 1960); Town ofAscarate 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 ofhistoric 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 ofthe [Committee], because ofpeculiar hardship and remoteness from the legitimate purposes ofthe act, would be unconstitutional applications ofit. Opinion ofthe 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 ofa permit would amount to an unreasonable and arbitrary exercise ofthe Committee’s power. Whether this is the case in this instance is aquestion offact which can not be resolved in an opinion ofthis office. The second facet of**your** first question concerns the limits ofthe 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 ofthat term. While the Antiquities Code contains nodefinition 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 ofOrange County v. District Trustee.9 of Prairie View Common School Dist. No. 8, 153S.W. 2d434 (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 ofarticle 6145, for both provisions relate to the preservation ofhistoric sites. Section 12ofarticle 6145gives the Historical Commission the responsibility for marking sites significant in Texas and American history. Section 15authorizes the Commission to certify the worthiness of preservation ofhistoric sites. Section 9designates the Commission as the administrator ofthe National Historic Preservation Act of 1966, 16U.S. C. §470, et seq. Section 470a ofthat 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 ofpreservation under section 15ofarticle 6145, or which is listed on the National Register pursuant to 16U.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 ofthese buildings on the National Register. Section 6ofthe Antiquities Code prohibits the destruction ofa State Archeological Landmark without a permit from the Antiquities Committee. The buildings became Landmarks onApril 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 ofa permTin this instance would unconstitutionally impair these obligations would depend onfactual matters not now before us. **Your** third question concerns whether apolitical 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 5421qprovides for a public hearing prior to the taking or use ofany public land designated as a park, recreation

p. 2745The 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 ofthe police power ofthe State to protect the general welfare ofthe 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 ofthe Antiquities Code to sites other than those connected to “prehistoric and historical Am,erican Indian or aboriginal campsites, dwellings, and habitation sites. ” Section 6 ofthe 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 avalid exercise ofthe 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 ofa permit would constitute an unreasonable and arbitrary exercise ofthe 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 ofpreservation, 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 ofthe three

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

19th Century bui,ldings involved, notwithstanding the existence of contracts for their destruction. Whether refusal ofapermit would unconstitutionally impair the obligations of contracts would depend on factual matters not before US. The procedures ofarticle 5421g, V. T. C.S., and those ofthe Antiquities Code are independent; both statutes must be satisfied. The application ofthe 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

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