April 

### 26, 1951



### Ron. Lerry 0. cox Executive Director Board for Texas State Hospitals and Special Schools Austin, Texas
Opinion Ho. V-1170

Re: Authority of the Board to place permanent improvements upon land held by the State subject to mineral reservationand conditions subsequent.

Dear Sir:

Your request for opinion reads in part as followe:

“The State of Texas, acting by and through the State Board of Control while it WUB edmlnieterlngthe State hospital esetem, acquired title to eevera1 yqccee of real estate which were conveyed to the State of Texas nith restrictionsas to use. One tract of land which was conveyed to the State was Camp “,~I;I~ which consists of 2,369 acres

. At the present time this Board maintains and operatesa tuberculosis sanatoriumon the property. On July 28, 1948, the War Assets Administratorconveyed by deed, without warranty, to the State of Texas the 2,369 acres of land. The deed contained the followingconditions eubaequent:Hon. Larry 0. Cox - Page 2 - V-1170

"1.

"2.



### “3.

“4. The Federal Governmentretalned all mineral rights.

That for a period of twentyfive years from the date of the .lnetrument

the State will not resell or lease the property without first obtaining the written approvalof the War. Assets Administration.
During 'national

emergencies "' the Federal GovernmentIs entitled to full unrestricted, use, ,control

and possession of the property, 'or any part thereof, Includingadditions
or Improvements

made by the ,Steteof Texas.

., ..' :+he property Is to be used for a.tuberculosis hospital and eanatorfum,and no other purpose, for a period of twentyfive years,

II

. . .
"We have a very similar situation existingat the Weaver H. Baker Memorial Tuberculoefs

Sanatoriumat Mission,Texas. This Installation

was once Moore Air Field, and the grantors of the real propertywere the cities of Edfnburg, Mission and &Allen. The date of the +ed Is November 

### 5, 1947. The mineral rights are retainedby the grantors,and the conditionssubsequentare exactly the same except that they expire at the end of a ten year period instead of a twenty-five

year period.

"In addltlon to the two above mentloned Installations,

this Board Is operating. 

### 325

Hon. Larry 0. Cox - Page 

### 3 - V-1170

and maintainingthe VictoryAir Field at Vernon, Texas. There la only one restriction ln the deed to the Vernon property. This propertywas conveyed to the State of Texas by the City of Vernon so long as the property la used for a publtc State purpose.”

After making the foregoingstatement,you request our opinionas to whether your Board has authority to place permaneht Improvements on tracts of land which have been conveyed to the State subject to the reservations and conditionssubsequentdescribed In your letter.

The authority of a State agency to acquire real estate, the title to which neceeeerIlyvests In the State, Is dependentupon the will of the State expressed through Its legislature. The authorizinglegIelatlon Involvedhere la set forth In Senate Bill 147, Acts 50th Leg., 1947, ch.44, p.58 (Art.3251a,V.C.S.) which provides:
“Section1. The State Board of Control is hereby authorized to negotiate for and to acquire from the United States Government , or any agency thereof, or from any source whatsoever,by gift, purchase, or lease-hold,for and on behalf of the State of Texas, for use in the state eleemoeynary service, and In the establishment of state tuberculosissanatoriums, any lands : bulldQw, and facilities within the State of Texas, and any personalpropertieswherever located,and to take title thereto for and in the name of the State of Texas.

“Sec. 2. The fact that the State of Texas can acquire surplusproperty,both real and personal, from the United States Government,and Its several agencies,and
can acquire such propertyby gift from patriotic and public spirited titles, counties, and individualcitizen%,and can acquire such propertiesby purchase at nominal. I

.

Hon. Larry 0. Cox - Page 4 - V-1170

cost, for use In the state eleemoeynary service to the great Improvementof public health and the advancementof public educatiod,and can, by acquiring such property establishgreatly needed tube& culoele sanatoriums, and the fact that tuberculosisIs a co%miunlcable and lnfectlouediseaseprevalent In South Texas and In East Texas, constitutinga menace to the generalhealth and welfare of all. the people pf the state, creates an emergencg.

. . The East Texas State Tuberculosis Sanatorium occupies the Camp Fannln property and was createdby Acts 50th Leg., V.C.S.). 

### 1947,ch.344, eec.16, p.679 (Art.3254d,

This Act was amended by Acts 51et Leg.,R.S. 1949, ch.207,p.389, but the only changewas to ellmlnate the restrictionof sanatoriumuse to white pereons. The Act ~,of

the 50th Legislatureprovides:

“There 1% hereby created the lEaat Texas State TuberculosisSanatorium’for tubercular

white person%. As the Board of Control Is able to %ecure sufficient buildingsand equipment to establish such tuberculosissanatorium,the said Board la hereby authorizedand directed to reconditionand re-model %ame as may be necessary-toestablisha Sanatoriumfor white pqreone only, to be known and deelgnated as the ‘EastTexas State Tuberculosis Sanatorium’

.I’

The Weaver H. Baker Memorial Tuberculosis SanatoriumoccupiesMoore Field end was created by Acts 50th Leg., 1947,ch.330, 

### p.607,wherein It is provided:

“There Is hereby appropriatedfor the fiscal year ending August 

### 31, 1948, the sum of Five Hundred Fifty Thousand ($550,000.00)

Dollar% for the conversion and securingof title to Moore FieldHon. Larry 0. Cox - Page 

### 5 - V-1170

near Mission, Texas, In accordance with Senate Bill No. 

### 147, Acts of Regular See-

‘alon, 50th Legislature, 1947; and eetabllahlng the Weaver H. Baker MemorialTu- '. berculoele Sanatorium. In the event. Moore Field cannot be secured the Board of Control shall have authorityto eetablleh said Sanatoriumat such other place as the Board of Control may direct. For the fiscal year endingAugust 31, 1949 the unexpendedbalance of Five Hundred Fifty Thousand ($550,000.00) Dollars Is reappropriated for conversion. For the fiscal year ending August 

### 31, 1948,~ there, 1% appropriated the sum of Three Hundred Ten Thousand ($310,000.00) Dollars to the Weaver H. Baker Memorial TuberculosisSanatorium for salaries, operation,support, maintenance

, general lmprovemente,repairs and contingentexpenses. For the fiscal year ending August 31, 1949, there Is appropriated Six Hundred Thousand ($~OO,OOO.OO)

Dollars for %alarles,operation, support, maintenance,general lmprovements, penses.

. .'

repairs and contingentexThe Victory Air Field was acceptedby the 51st Le lelature 10 5) 8 (Acts 51et Leg., R.S.l$Q,ch.553,sec.25,p. under this language:

"The Board Is hereby authorized to accept from the City of Vernon the buildings and land formerlyused as an air field for the eetabllehment of a State Hospital."

The nature or extent of the title to be acquired by a State agency Is dependentupon the Intention of the Legislature. If the authorizing Act provides for the acquisitionof "full fee simple title", or "good and merchantabletitle", or u%es

### 328
Hon. Larry 0. Cox - Page 6 - V-1170

i other languagewhich may tend to show a particular

Intent with respect to the type of title to be ecqulred, then title shouldbe acquired accordingly. The authorizinglegIelatlon here simply states that the Board Is authorizedto “negotiatefor” end acquire “by gift, purchase,or leasehold,

. . . any land%, buildings,and facllltlee

. . . and to take title thereto for and In the name of the State of Texas. ” The emergencyclause la predicated In part upon the fact that the State “can acquire surplus property,both real and personal, from the United States

. . .’ at a nominal coat. The provleIoneof this Act are quite broad and, to our minds, have the effect of delegatingto the Board the authority to negotiate for, end within its discretionacquire, the beet title obtainable. We call attention to the fact that the Act anticipatedecquleltlonof surplus ,propertlee

from the United States at a time when the Federal Government was making all conveyance%of these properties subject to the same reservations and conditionsas those set forth In the deeds to the State. Doubtless,the Legislaturehad knowledge of this practice and drew the Act as broad as It did with this In mind.

In an opinionby this office dated February 19, 1936, addressedto Hon. T. 0. Walton, Preeldent of A. & M. College (Att’yGen. Opa.,Book 370, p.319), It Is stated:

I,

. . . Insofaras acquIeltlon by sale Is concerned,the Legislature,lneofar as this writer has been able to dlecover, has never made any apeclflcregulation. The Legislature has merely provlded that the Board of Directors shall have the power to purchase land. The only restrictionbeing that the conveyancesshall be ~approved

by the Attorney General as to form. From a study of the foregoingartlclee, the legislativeIntentionto leave the manner of acquiringlands, Including the matter of mineral reservation by the grantor within the broad discretionof theHon. Larry 0. Cox - Page 7 - VL1170 s

Board of::DIrecbore, la quite dlearto the writer. Therefore, It Is the oplnIon of this writer, end you are accordingly advised that the'Boerdof Directors of the Agriculturaldc MechanicalCollege of Texas does haye,',the legal.authorIty

to acquire lands.foruse as~experlmentalstatlona, 71th a,mIneraJ reservaflonto'the grantor. However; It 1% euggeetdthat the Board ehcu~dexercI%e it% .dlecretlon' In this matter wlth‘a ti,ew to the type of land sought to be acquired, the use to which, It 18 to be6

%ubject,e~d,~,the

permati of the Improvement%to'be placed ~thereoni the de%.lrabllIty,,'o.f @tires cpdrol,'bf,~~t~~ Iahd' In case :of:future

.mlneral:.dyv,eIop-' merit,; and other mattere',of equal.Impcr-~ tande. ,Wlth

thi~%~~ln

mind ~lt:le ,a matter wholly within,

the .dl%,cre-tlon

,of the Bo.a,rd whether It wlllYbe 'good business to acquire any land where the grantor desires to retain all or part of the minerals.

. .I'

It has be~en.

held in County School Trustees of 'Upehur County,~v.

Free', 134 S.W.2d 935 (Tex.Clv.App.,lggl,
error ref.w.o.m.~), that school trusteesmay exclude the mineral estate from a condemnationsuit and acquire only the surface,,

even though the statute provides for condemnation of the fee simple title.

In our opinion, the Board of Control acquired titles which it could legally acquire. Therefore,as to the tract% of land here Involved, there Is nothing Inherent In the titles by reason of the reservatloneend conditionswhich would prevent their use for permanent Improvements

within the sound dl%cretlonof your Board, and subject to proper appropriations belng made therefor by the Legislature.

Your request does not present the question of the legislativeintent with respect to permanent construction on the above mentioned tracts of land as reflectedby the various appropriation bills enacted subsequent to the date such land was acquiredby the State.ThIs

### 330

Hon. Larry 0. Cox - Page 8 - V-1170

Is a matter upon which we exprecre no opinion.

SUMMARY

Under an Act authorizinga State agency to acquire title to surplus properties of the United States and others throughgift, purchase, or leasehold, such agency Is authorizedwithin Its sound discretionto accept title subject to a mineral reservationand certain conditions subsequent. Consequently,the reeervatlonand conditionsdo not In themselvesprevent erection of permanent Improvement%on lands thus held. The advI%abllItyof making such ImprovementsIs
a matter within the discretionof the Board, subject.

to legislativeapproprlatlon.

Yours very truly

PRICE DANIEL Attorney-General

APPROVED:

Jesse P. Luton, Jr. Reviewing-Assistant

Charles D. Mathews First Assistant