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.. 117S.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. p0462, 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. 1are 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, eoo 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 ofTexas, agreed to certain pertinent facts relating tothe case:

“(i) That,the said buildings are tobe constructed on sites ofland deemed adequate by theBoard for ,thepurpose, which sites either have already been, or wfl3be prior tothebeginning ofconstiuctien 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 ofindividuals having nopublio status, but some of such donations 

### eithc~rhave been or 

### will be made totheBoard bythemunicipal corporations withinwhose territorial confines, or near whose territorial boundaries, such sites are 

### lacated; the conveyance of such sites totransfer totheHoard a fee simple title in some instances, andm other mstances a leasehold for aterm of ninety-nine years, which shall require nopayment onthepart oftheBoard ofrental or taxes, - theexpressed consideration being the construction ofbuildings.” (Underscoring supplied) The Attorney General qtiestiontd the constitutionality of the above Act on several grounds, none ofwhich involved thequestion or the right oftheBoard.to receive fee simple title to landby donation or gift from individuals or’groups ofindividuals having nopublic status.

Mr. 

### Justice Sharp, writing for the majority oftheCourt, used thefollowing language:

“The Board is authorized to require sites for Armory purposes by 

### gift or purchases s
. **
Onthe question oftheBoard holding title toproperty, we thinkthe opinion ofJustice Critx, concurring inpart anddissentinginpart inthe McGraw case. supra, is very 

### appropriate, and we quoteas follows:

“The Board acquires property in its name as such. The Board rents theproperty acquired by ittothe State, bymaking rental contract **with** 

### another State agency, theAdjutant General, On such lease contract theBoard issues bonds,

### Hon. Arthur B. Knickerbocker - Page 4 **,V-46**



### secured by the rents tobe paid by the 

### State. When thebonds are all paid, the properties held by the Board become, as a

### matter of law, theproperty ofthe State. Under such a

### law, while theBoard holds the legal title, such titlt holding is apure fiction. 0

. .”
The language as used inSection 2 (f) andSection 2 (g), Article 5890b, quoted above, althoughchanged slightly from the language ofthe 1937Act, which was before the Supreme Court in the 

### M&raw case, supra,,contains nomaterial change with **re** 

### spect to acquiring ofproperty bythe 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 tobe the site of the Armory of 

### theNational Guard Unit stationed at Kerens.

Inview of our affirmative answer **to** 

### question (a), we deem it unnecessary 

### toanswer question (b).

SUMMARY
The National Guard Armory 

### Board is the proper State Agency toaccept onbehalf of 

### the State.t@efee s3mple title to land donated tothe State byprivate citizens tobe 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