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 reservation and 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 edmlnieterlng the State 

hospital esetem, acquired title to eevera1 yqccee of real estate which were 

conveyed to the State of Texas nith restrictions as 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 operates a tuberculosis 

sanatorium on the property. On July 28, 

1948, the War Assets Administrator conveyed by deed, without warranty, to the 

State of Texas the 2,369 acres of land. 

The deed contained the following conditions eubaequent: 
Hon. Larry 0. Cox - Page 2 - V-1170 

"1. 

"2. 

“3. 

“4. 

The Federal Government retalned 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 approval of the War. 

Assets Administration. 

During 'national emergencies "' 

the Federal Government Is entitled to full unrestricted, 

use, ,control and possession 

of the property, 'or any part 

thereof, Including additions 

or Improvements made by the 

,Stete of 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 

existing at the Weaver H. Baker Memorial 

Tuberculoefs Sanatorium at Mission, Texas. 

This Installation was once Moore Air Field, 

and the grantors of the real property were 

the cities of Edfnburg, Mission and &Allen. 

The date of the +ed Is November 5, 1947. 

The mineral rights are retained by the 

grantors, and the conditions subsequent are 

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 maintaining the Victory Air Field 

at Vernon, Texas. There la only one restriction ln the deed to the Vernon 

property. This property was 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 foregoing statement, you request our opinion as 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 conditions subsequent described In your letter. 

The authority of a State agency to acquire 

real estate, the title to which neceeeerIly vests In the 

State, Is dependent upon the will of the State expressed 

through Its legislature. The authorizing legIelatlon 

Involved here la set forth In Senate Bill 147, Acts 

50th Leg., 1947, ch.44, p.58 (Art.3251a,V.C.S.) which 

provides : 

“Section 1. 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 

tuberculosis sanatoriums, any lands : bulldQw, and facilities within the State of 

Texas, and any personal properties wherever 

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 surplus property, both 

real and personal, from the United States 

Government, and Its several agencies, and 

can acquire such property by gift from patriotic and public spirited titles, counties, and individual citizen%, and can acquire such properties by purchase at nominal 
. I 

. 

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

cost, for use In the state eleemoeynary 

service to the great Improvement of public health and the advancement of public 

educatiod, and can, by acquiring such 

property establish greatly needed tube& 

culoele sanatoriums, and the fact that 

tuberculosis Is a co%miunlcable and lnfectloue disease prevalent In South Texas 

and In East Texas, constituting a menace 

to the general health 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 created by 

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 change was to ellmlnate the restriction of sanatorium use to white pereons. The Act ~,of the 50th Legislature provides: 

“There 1% hereby created the lEaat 

Texas State Tuberculosis Sanatorium’ for 

tubercular white person%. As the Board 

of Control Is able to %ecure sufficient 

buildings and equipment to establish such 

tuberculosis sanatorium, the said Board 

la hereby authorized and directed to recondition and re-model %ame as may be 

necessary -to establish a Sanatorium for 

white pqreone only, to be known and deelgnated as the ‘East Texas State Tuberculosis Sanatorium’ .I’ 

The Weaver H. Baker Memorial Tuberculosis 

Sanatorium occupies Moore Field end was created by 

Acts 50th Leg., 1947,ch.330, p.607, wherein It is provided : 

“There Is hereby appropriated for 

the fiscal year ending August 31, 1948, 

the sum of Five Hundred Fifty Thousand 

($550,000.00) Dollar% for the conversion and securing of title to Moore Field 
Hon. 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 Memorial Tu- '. 

berculoele Sanatorium. In the event. 

Moore Field cannot be secured the Board 

of Control shall have authority to eetablleh said Sanatorium at such other 

place as the Board of Control may direct. 

For the fiscal year ending August 31, 

1949 the unexpended balance 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 Tuberculosis Sanatorium for salaries, operation, support, 

maintenance , general lmprovemente, repairs and contingent expenses. 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 contingent exThe Victory Air Field was accepted by the 51st 

Le lelature 

10 8 5) 

(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 formerly used 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 dependent upon the Intention of the Legislature. If the authorizing Act 

provides for the acquisition of "full fee simple 

title", or "good and merchantable title", or u%es 
328 

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

i 

other language which may tend to show a particular 

Intent with respect to the type of title to be ecqulred, then title should be acquired accordingly. 

The authorizing legIelatlon here simply states that 

the Board Is authorized to “negotiate for” 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 emergency clause 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 provleIone of 

this Act are quite broad and, to our minds, have the 

effect of delegating to the Board the authority to 

negotiate for, end within its discretion acquire, 

the beet title obtainable. We call attention to the 

fact that the Act anticipated ecquleltlon of 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 conditions as those set forth In the deeds to 

the State. Doubtless, the Legislature had knowledge 

of this practice and drew the Act as broad as It did 

with this In mind. 

In an opinion by this office dated February 19, 1936, addressed to Hon. T. 0. Walton, Preeldent of A. & M. College (Att’y Gen. Opa.,Book 370, 

p.319), It Is stated: 

I, . . . Insofar as acquIeltlon by 

sale Is concerned, the Legislature, lneofar as this writer has been able to dlecover, has never made any apeclflc regulation. The Legislature has merely provlded that the Board of Directors shall have 

the power to purchase land. The only restriction being that the conveyances shall 

be ~approved by the Attorney General as to 

form. From a study of the foregoing artlclee, the legislative Intention to leave 

the manner of acquiring lands, Including 

the matter of mineral reservation by the 

grantor within the broad discretion of the 
Hon. Larry 0. Cox - Page 7 - VL1170 s 

Board of::DIrecbore, laquite dlearto 

the writer. Therefore, It Is the oplnIon of this writer, end you are accordingly advised that the'Boerd of Directors 

of the Agricultural dc Mechanical College 

of Texas does haye,',the legal.authorIty to 

acquire lands.for use as~experlmental statlona, 71th a,mIneraJ reservaflon to'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 trustees may exclude the 

mineral estate from a condemnation suit 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 reservatlone end 

conditions which would prevent their use for permanent 

Improvements within the sound dl%cretlon of your Board, 

and subject to proper appropriations belng made therefor by the Legislature. 

Your request does not present the question of 

the legislative intent with respect to permanent construction on the above mentioned tracts of land as reflected by the various appropriation bills enacted subsequent to the date such land was acquired by 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 authorizing a State 

agency to acquire title to surplus properties of the United States and others 

through gift, purchase, or leasehold, 

such agency Is authorized within Its 

sound discretion to accept title subject 

to a mineral reservation and certain conditions subsequent. Consequently, the 

reeervatlon and conditions do not In 

themselves prevent erection of permanent 

Improvement% on lands thus held. The advI%abllIty of making such Improvements Is 

a matter within the discretion of the 

Board, subject. to legislative approprlatlon. 

Yours very truly 

PRICE DANIEL 

Attorney-General 

APPROVED : 

Jesse P. Luton, Jr. 

Reviewing-Assistant 

Charles D. Mathews 

First Assistant