R-46 

THE Amro NEYGENERAL 

TEXAS 

Jan. 30, 1947 

Hon. Arthur B. Knickerbocker 

Adjutant General of Texas 

Austin, Texas 

Opinion No, V-46 

Re: Appropriate agency to 

accept title to site for 

Texas National Guard 

Armories. 

Dear Sir: 

Reference is made to your letter of January 2, 1947, concerning the following questions: 

(a). “Is the Texas National Guard Armory 

Board the appropriate State agency to accept 

the fee simple of property destined to be the 

site of the armory of the National Guard Unit 

stationed at Kerens ? sl 

(b), “If the answer to ““(a)” above is in 

the negative, what agency of the State of Texas 

has the authority to accept title for the purposes described above, * 

The facts recited in your letter above referred to indicate 

that several public spirited citizens of the City of Kerens desire to 

donate a certain tract of land described therein as “20 acres of land 

out of ,the M. Auky Survey, Navarro County, Texas, as sold by W. 

E. Towle, et ux to E. H. Gray, G. M. Shatman and H. W. Hofber, 

Trustees, on November 6, 1946” to be used as a site for a National 

Guard Armory for the Unit stationed at Kerens. 

While it is recognized by our courts that the State of Texas has the right and power to acquire and use property, in the absence of constitutional restriction, (Langdon v, State. Ct. of Cr. 

App.. 117 S.W. (2d) 780; King v. Sheppard, 157 S. W. (2d) 682, writ 

of error ref.), it is our opinion that Article 5890b. Vernon’s Annotated Civil Statutes, is controlling of your question, This Act created the National Guard Armory Board, having been passed by the 

Forty-fourth Legislature, as Chapter 184. p0 462, Acts 1935; was 

amended by the Forty-fifth Legislature, Chapter 366, Acts of 1937. 

and later amended by Acts, 1939, 46th Legislature, page 487, Section 1. The provisions of this article applicable to your question 

No. 1 are quoted as follows: 
Hon. Arthur B. Knickerbocker - Page 2 v-46 

“Sec. 2. The Board hereby created shall be 

and it is hereby constituted a body politic and 

corporate. It shall succeed to the ownership of 

all property of, and all lease and rental contracts 

entered into by. the Texas National Guard Armory Board that was created by prior statutes 

and all of the obligations contracted or assumed 

by the last mentioned Board with respect to any 

such property and contracts shall be the obligations of the Board created by this Act, With this 

exception, no obligation of said former Board 

shall be binding upon the Board hereby created. 

It shall be the duty of said Board to have charge 

of the acquisition, construction, rental, control, 

maintenance and operation of all Texas National 

Guard Armories, including stables, garages, rifle 

ranges, hangers and all other property and equipment necessary or useful in connection therewith, 

and the, said Board shall possess all powe~rs necessary and convenient for the accomplishment of 

such duty, including, but without being limited 

thereto, the following express powers: 

“(f) To acquire, by gift or by purchase, for 

use as building sites or for any other purposes 

deemed by said Board to be necessary or desirable in connection with or for use of units of the 

Texas National Guard, property of any and every 

description, whether real. personal or mixed, including, but without limitation on the foregoing, 

leasehold estates in real property, and hold, maintain, sublease, convey and exchange such property, 

in whole or in part, and/or to pledge the rents, issues and profits thereof in whole or in part; also. 

to acquire, by gift or purchase, or by construction 

of the same, furniture and equipment suitable for 

Armory purposes and to hold, maintain, sublease, 

convey and exchange such furniture and equipment, 

in whole or in ,part. 

“(g) To construct buildings on any of its real 

property, whether held in fee simple or other- 

” 

wme, e o o 

As previously commented upon in our opinion No. O-5695, 

addressed to you, this Act, as amended by the 45th Legislature in 

1937, was before the Supreme Court in the case of Texas National 

Guard Armory Board v, McGraw, 126 S. W, (2d) 627, and the constitutionality and validity of same were upheld. In the last above 
Hon. Arthur B. Knickerbocker - Page 3 V-46 

cited case, the relator, Texas National Guard Armory Board, and 

the respondent, McGraw, Attorney General of Texas, agreed to 

certain pertinent facts relating to the case: 

“(i) That,the said buildings are to be constructed on sites of land deemed adequate by 

the Board for ,the purpose, which sites either 

have already been, or wfl3 be prior to the beginning of constiuctien there*, donated to or otherwise acquired by the Boardmerscoring 

supplied) 

*(j) That a considerable tiunbcr of such 

donations will be made by fndividnals or groups 

of individuals having no publio status, but some 

of such donations eithc~r have been or will be 

made to the Board by the municipal corporations within whose territorial confines, or near 

whose territorial boundaries, such sites are lacated; the conveyance of such sites to transfer 

to the Hoard a fee simple title in some instances, 

and m other mstances a leasehold for a term of 

ninety-nine years, which shall require no payment on the part of the Board of rental or taxes, - 

the expressed consideration being the construction 

of buildings.” (Underscoring supplied) 

The Attorney General qtiestiontd the constitutionality of 

the above Act on several grounds, none of which involved the question or the right of the Board.to receive fee simple title to land by 

donation or gift from individuals or’groups of individuals having 

no public status. 

Mr. Justice Sharp, writing for the majority of the Court, 

used the following language: 

“The Board is authorized to require sites 

for Armory purposes by gift or purchases s . ** 

On the question of the Board holding title to property, we 

think the opinion of Justice Critx, concurring in part and dissenting in part in the McGraw case. supra, is very appropriate, and 

we quote as follows: 

“The Board acquires property in its name 

as such. The Board rents the property acquired 

by it to the State, by making rental contract with 

another State agency, the Adjutant General, On 

such lease contract the Board issues bonds, 
Hon. Arthur B. Knickerbocker - Page 4 ,V-46 

secured by the rents to be paid by the State. 

When the bonds are all paid, the properties 

held by the Board become, as a matter of law, 

the property of the State. Under such a law, 

while the Board holds the legal title, such titlt 

holding is a pure fiction. 0 . .” 

The language as used in Section 2 (f) and Section 2 (g), 

Article 5890b, quoted above, although changed slightly from the 

language of the 1937 Act, which was before the Supreme Court in 

the M&raw case, supra,,contains no material change with respect to acquiring of property by the Texas National Guard Armory Board!:- 

We conclude the Texas National Guard Armory Board is 

the appr6priate Statt Agency to receive fee simple title to the 

proptrty cbstihkd to be the site of the Armory of the National 

Guard Unit stationed at Kerens. 

In view of our affirmative answer to question (a), we 

deem it unnecessary to answer question (b). 

SUMMARY 

The National Guard Armory Board is the 

proper State Agency to accept on behalf of the 

State .t@e fee s3mple title to land donated to the 

State by private citizens to be used as an armory l ite by the Texas National Guard. Article 5890b, Sec. 2, subsections (f) and (g), Vernon’s Annotated Civfl Statutes. 

Yours very truly, 

ATTORNEYGENERACOFTEXAS 

BY 

Charles E. Pratt 

CEP: bt: sl 

Assistant 

APPROVED 

OPINION COMMITTEE 

BY BWB 

CKAfRMAN ATTORNEYGENERALOFTEXAS