. 

The Attorney General of Texas 

October 22. 1981 

MARK WHITE 

Attorney General 

Supreme Court Bullding 

P. 0. Box 12546 

Awtln. TX. 78711 

51214752501 

Telex 91OiB74-1357 

Telecopier 51214750296 

1607 MaIn St., Suite 1400 

Dallas. TX. 75201 

214l7428944 

4524 Alberta Ave., Suite 160 

El Paso, TX. 79905 

9151533.3484 

1220 Dallas Ave.. Suite 202 

Houston. TX. 77002 

7131650-0965 

608 Broadway, Suite 312 

Lubbock. TX. 79401 

SCW747.5239 

4309 N. Tenth, Suite B 

McAllen. TX. 78501 

5lM2.4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 79205 

51212254191 

An Equal OpportunityI 

Attinnative Action EmPlOW 

Fred Wendorf, Ph.D., Chairman 

Texas Antiquities Committee 

P. 0. Box 12276, Capitol Station 

Austin, Texas 78711 

Opinion No. MW-378 

Re: Contract for renovation 

of Sam Houston Woodland Home 

in Huntsville 

Dear Mr. Wendorf: 

The Sam Houston Woodland Home in Huntsville, Texas, is the 

subject of your opinion request. This home is situated on land 

administered by the Board of Regents of the Texas State University 

System. It is designated as a National Historic Landmark, is listed 

in the National Register of Historic Places, and is a Recorded Texas 

Historic Landmark. 

On June 24. 1981, the Texas Antiquities Committee designated the 

Woodland Home as a State Archeological Landmark. We will assume that 

this designation was effective to confer "landmark" status upon the 

home. The Board of Regents is concerned about the effect of this 

designation upon a contract it entered into on May 23, 1980, for 

extensive renovation of the home. Much of the renovation work had 

been completed when the designation was made. but more remains to be 

done. Your question is whether the Board of Regents must obtain a 

permit from the Texas Antiquities Committee before this renovation 

work can be completed. 

Sections 191.001, et seq., of the Natural Resources Code 

constitute the Antiquities Code of Texas. These provisions were 

enacted in 1977. Acts 1977, 65th Leg.. ch. 871, at 2345. Formerly, 

they were contained in article 6145-9. V.T.C.S., enacted in 1969. 

Several Antiquities Code provisions are relevant to your inquiry. 

Section 191.092 provides that: 

Other sites, objects, buildings, artifacts, 

implements, and locations of historical, 

archeological, scientific, or educational 

interest, including those pertaining to 

prehistoric and historical American Indians or 

aboriginal campsites, dwellings, and habitation 

sites, their artifacts and implements of culture, 

p. 1273 
. 

Mr. Fred Wendorf - Page 2 (MW-378) 

as well as archeological sites of every character 

that are located in, on, or under the surface of 

any land belonging to the State of Texas or to any 

county. city, or political subdivision of the 

state are state archeological landmarks and are 

the sole property of the State of Texas. 

(Emphasis added). 

Prior to the effective date of Senate Bill No. 659, section 191.093 

provided that: 

Landmarks under Section 191.091 of this code 

are the sole property of the State of Texas and 

may not be taken, altered, damaged, destroyed, 

salvaged, or excavated without a contract with or 

permit from the committee. (Emphasis added). 

Section 191.094 provides in pertinent part that: 

(a) Any site located on private land which is 

determined by majority vote of the committee to be 

of sufficient archeological, scientific, or 

historical significance to scientific study, 

interest, or public representation of the 

aboriginal or historical past of Texas may be 

designated a state archeological landmark by the 

committee. 

Section 191.095 provides that: 

All sites or items of archeological, 

scientific, or historical interest located on 

private land in the State of Texas in areas 

designated as landmarks, as provided in Section 

191.094 of this code, and landmarks under Section 

191.092 of this code, may not be taken, altered, 

damaged, destroyed, salvaged, or excavated without 

a permit from the committee or in violation of the 

terms of the permit. (Emphasis added). 

Senate Bill No. 659 became effective on August 31. 1981. It 

amended section 191.093 by adding the following underlined language: 

Landmarks under Section 191.091 or Section 

191.092 of this code are the sole property of the 

State of Texas and may not be taken, altered, 

damaged, destroyed, salvaged, or excavated without 

a contract with or permit from the committee. 

(Emphasis added). 

Before reaching your question, we will address two threshold 

questions: (1) Prior to August 31. 1981, was the Texas Antiquities 

p. 1274 
Mr. Fred Wendorf - Page 3 (MW-378) 

a 

Committee authorized to require that a permit be obtained before 

section 191.092 landmarks are altered? (2) May the committee require 

that a permit be obtained if it has not formally designated an item 

listed in section 191.092 as a “state archeological landmark”? 

Texas Antiquities Committee v. Dallas County Community College 

District. 554 S.W.2d 924 (Tex. 1977). is pertinent to this inquiry. 

There, the college district sought to set aside an order of the 

Antiquities Committee denying it a permit to demolish three buildings. 

The committee had never designated the buildings as state 

archeological landmarks. Nevertheless, it argued that the college 

district had to obtain a permit before demolishing the buildings 

because they were listed in the National Register of Historic Sites 

and Buildings and were therefore of “historical interest” within 

section 6, article 6145-9, V.T.C.S. That section then provided as 

follows: 

All... buildings... of historical... interest... 

located... on... lands belonging to the State of 

Texas or.. . any county, city, or political 

subdivision of the state are.. . State 

Archeological Landmarks and are the sole property 

of the State of Texas and all such sites or items 

located on private lands withjn the State of Texas 

in areas that have been designated as a ‘State 

Archeological Landmark’ as hereinafter provided, 

may not be taken, altered, damaged... withcut a 

permit from.. . the Antiquities Committee. 

See §§191.092-191.095. 

- 

Speaking for four members of the court, Justice Pope held 

section 6 unconstitutional on its face and as applied in that case. 

With respect to the latter conclusion, he found no substantial 

evidence to support the committee’s refusal to grant the permit. 

Justice Greenhill concurred, agreeing with the plurality on the 

substantial evidence point, but declining to reach the constitutional 

questions. Justice Denton dissented. 

The portion of Justice Pope’s plurality opinion that concerns us 

is as follows: 

The Antiquities Committee has not designated any 

of the three buildings at issue as State 

Archeolol 3ical Landmarks, but the Connnittee has 

denied the Collene District’s request to demolish 

the buildings based upon the buildings’ expedited 

inclusion in the National Register of Historic 

Sites and Buildings. The Antiquities Code does 

not give the Antiquities Committee authority .over 

buildings in the National Register; instead, the 

Code only gives the Committee authority over 

p. 1275 
Mr. Fred Wendorf - Page 4 (MW-378) 

. 

buildings which the Committee has designated as a 

State Archeological Landmark. Since the Committee 

has not designated the buildings as State 

Archeological Landmarks. the College District does 

not need the Conrmittee’s permission before 

demolishing the buildings. 

554 S.W.Zd at 926. (Emphasis added). 

The meaning of this statement is clear: the Antiquities 

Committee has no jurisdiction over buildings which it has not 

designated as state archeological landmarks, and its permission is 

therefore not needed before such a building is altered. The question 

concerns the legal significance of this statement. Although neither 

Justice Greenhill nor Justice Denton challenged it in their opinions, 

it technically reflects the views of only four members of the court. 

Moreover, if the fact that the buildings were never designated as 

landmarks was dispositive of the question of whether a permit was 

needed to demolish them, the court need not have reached the 

constitutional questions. It could have disposed of the case on that 

ground alone. 

In our opinion, however, this statement resolves the question of 

when the Antiquities Committee acquires jurisdiction of buildings, 

sites, and other items. First. the court of civil anneals relied on . . 

this statement in Board of Regents v. Walker County Historical 

Commission, 608 S.W.2d 252 (Tex. Civ. App. - Houston 114th Dist.1 

1980, no writ), which involved the Woodland Home. Second, it is the 

only reasonable construction of the Antiquities Code provisions. One 

can hardly be expected to know that a particular item is a “landmark,” 

and is therefore subject to the permit requirement, until the 

Antiquities Committee formally designates it as such. 

The Woodland Home is a “building” located on land “belonging to 

the State of Texas or to any county, city, or political subdivision” 

within section 191.092. For the foregoing reasons, we conclude that 

it became a “landmark” within the Antiquities Code on June 24, 1981. 

We now consider whether, prior to August 31, 1981, the 

Antiquities Committee’s permission was needed before section 191.092 

landmarks could be altered. Put another way. does Senate Bill No. 659 

effect any change in the law in this area? Before August 31. section 

191.093 referred only to “landmarks under Section 191.091.” Section 

191.095 provided, however, that: 

All sites or items of archeological, 

scientific, or historical interest located on 

private land in the State of Texas in areas 

designated as landmarks, as provided in Section 

191.094 of this code, and landmarks under Section 

191.092 of this code, may not be... altered... 

P. 1276 
Mr. Fred Wendorf - Page 5 (MW-378) 

without a permit from the committee.... (Emphasis 

added). 

This section was derived from section 6. article 6145-9. supril. 

Section 6 was discussed in Attorney General Opinion H-250 (1974), 

which observed that although the “peculiar wording” of the section 

might suggest that the “taken, altered, damaged,” etc.. clause applied 

only to landmarks on private lands, the legislature certainly must 

have intended to protect landmarks on public land “with the same 

vigor. ” Attorney General Opinion H-250 concluded as follows: 

In our opinion, then. 56 of the Antiquities Code 

requires that the permission of the Antiquities 

Committee be obtained in the form of a permit 

before any site of historical or archeological 

interest located on public lands can be altered, 

damaged, destroyed, etc. (Emphasis added). 

In our opinion, the legislature merely ratified this conclusion 

when it enacted section 191.095 in 1977. The wording of that 

section--particularly its reference to section 191.092--clearly 

indicates that all section 191.092 landmarks were intended to be 

subject to the pzit requirement. Senate Bill No. 659 does not enact 

new law, therefore, but only clarifies existing law. 

The Antiquities Committee, therefore, was obliged to require that 

a permit be obtained prior to the alteration of a section 191.092 

landmark even before Senate Bill No. 659 became effective. The 

remaining question is whether the committee may now require the Board 

of Regents to obtain a permit before further renovation work is 

performed on the Woodland Home pursuant to the contract of May 23, 

1980. 

Section 191.093 now provides that section 191.092 landmarks “may 

not be . ..altered . ..without a . ..permit from the committee.” The law is 

settled that unambiguous statutory language will he construed as 

written. Ex parte Roloff, 510 S.W.Zd 913 (Tex. 1974). In our 

opinion, a straightforward reading and application of this statute 

compels the conclusion that once a building is designated as a “state 

archeological landmark.” it may not be altered without a permit from 

the committee. We perceive no basis for concluding that the 

legislature did not intend for the permit requirement to apply where, 

as here, alterations were contracted for before a building is 

designated a landmark. On the contrary. given the state’s legitimate 

interest in preserving the integrity of landmarks, we believe the 

legislature fully intended the permit requirement to apply in such 

instances. 

It is suggested in an accompanying brief that to conclude that 

the Board of Regents must obtain a permit before this renovation work 

is completed is to raise constitutional questions under article I, 

section 10 of the Federal Constitution and article I, section 16 of 

p. 1277 
Mr. Fred Wendorf - Page 6 (NW-378) 

the Texas Constitution, which prohibit laws impairing the obligation 

of contracts. However. we are not here confronted with lenislatlon 

which has that effect. See, e.g.. Texas State Board of Barber 

Examiners v. Beaumont Barber College. Inc., 454 S.W.Zd 729 (Tex. 

1970); Biddle v. Board of Adjustment, Village of Spring Valley, 316 

S.W.2d 437 (Tex. Clv. App. - Houston 1958. writ ref’d n.r.e.l: see 

also review of cases in- Attorney General- Letter Advisory No; 136 

(1977). As we have observed, even though section 191.093 has now been 

amended to include section 191.092 landmarks. section 191.095 has 

existed in its present form since 1977, Accordingly, when the parties 

entered into the May 23. 1980, contract, the law then provided that 

section 191.092 landmarks may not be altered without a permit from the 

committee. The parties must be presumed to have known that the 

Woodland Home could at any time he designated as a landmark, thus 

triggering the permit requirement. See. e.g., Reid v. Gulf Oil 

Corporation, 323 S.W.2d 107 (Tex. Civ. App. - Beaumont 1959), 

affirmed, 337 S.W.2d 267 (Tex. 1960); Lange v. Schulte, 276 S.W.2d 889 

(Tex. Civ. App. - Amarillo 1954, writ ref’d n.r.e.); 13 Tex. Jur. 2d 

Contracts $165 (parties to contract presumed to have known existing 

law and to have contracted with reference to it). Our courts have 

held that the enforcement of legislation in effect when a contract is 

made does not Impair the obligations created by the contract. McKenna 

v. City of Galveston, 113 S.W.2d 606 (Tex. Civ. App. - Galveston 1938, 

writ dism’d) ; see also Romeike v. Houston Ind. School District, 368 

S.W.2d 895 (Tex. Civ. App. - Waco 1963, no writ). 

We therefore conclude that the Board of Regents must obtain a 

permit from the Texas Antiquities Committee before renovation work on 

the Woodland Home is completed, even though the work was contracted 

for before the home was designated a “landmark.” 

It must be emphasized, however, that the committee may not 

arbitrarily refuse to grant a permit or impose any requirements 

whatsoever as conditions precedent to the issuance of a permit. Texas 

Antiquities Committee v. Dallas County Community College District, 

supra, demonstrates that the committee’s decision will be tested under 

the substantial evidence rule. In making its decision, for example, 

the committee certainly could not overlook the fact that, based upon a 

restoration study made by an architectural firm, the legislature 

appropriated funds for repairs and rehabilitation of the Woodland Home 

in 1979. General Appropriations Act, Acts 1979, 66th Leg., ch. 843, 

art. IV, 01, at 2844. In other words, the Woodland Home was 

designated a landmark after the legislature had placed its stamp of 

approval on the restoration project currently in progress. 

SUMMARY 

The Board of Regents of the Texas State 

University System must obtain a permit from the 

Texas Antiquities Committee before completing the 

renovation work on the Sam Houston Woodland Home 

p. 1278 
Mr. Fred Wendorf - Page 7 (Mb'-378) 

in Huntsville which it contracted for in May, 

1980. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Eva Loutzenhiser 

Jim Moellinger 

p. 1279