Hon. K. L. Berry 

Adjutant Qeneral 

Austin, Texas 

Opinfun No. V-820 

Re: The ownezwhfp of certain 

,$&conveyed to Company 

llltbRn@neer Reglmeni, 36th ~Mvislon; Texas 

~NatfOnal Guard, by the City 

of Ilouston, following reorganization of said unit. 

Dear Sir: 

Your le%Wr~l April 7, 1949, submits a copy 

of ~a -deed -d8twd~2zr~P~h?ru1~-the Cit 

Pang “F”t lll-th .~Rngineer Regiment, 3 % 

of Houston to Comth Division, Texas 

Natfonal Guard. The deed recites that: 

“It ~2s -the brtent an&-pwqwm of this 

amveymce to~,,vest ..a -.fWl ;ani+cwmplete fee 

.timpfe ~title to -%he ahwe described land In 

=. .,w,..+,F’ ,..e -baby,- ~-certafn conxmamw, xwvwmma -and llmftatlona contained 

in a deed heretofore executed by the aald City 

of Houston to the said Company ‘Ft.” 

The deed contains certain covenants undertaken by Company 

“F’ as a part of the consideration. 

You state that the 36th Division hae been reoqanlzed, and that the unit formerly known as Company 

“F Is to be redesignated Battery “B , 47th FA Battalion 

(obn). You ask: 

n the opinion of your office regard& Ch& legality of the ownership of the 

property described in the attached deed. It 

Is the interpretation of thle office that the 

unit of tE6 Texas, National Guard designated 

as the successor of Company “P”, 111th Rngineer Regiment, 36th Mvlslon Texas National 

Quard, inherits the traditions and historical 
Bon. K. L. ferry - Page 2 - V-820. 

aontfntity, a8 well as properties which 

may have been originally owned by Company nFn. . . . 

"Your~opfnfan is'neeessary to enable 

this Department to proceed with plans for 

the construction of an armory on the property. a . .' 

The copy of the deed furnished does not show 

its execution. We do not have a copy of the ordinance 

of the City Council of Houston which the deed recites 

as authority, nor do we have an abstract of title to the 

property. We are unable, therefore, to pass upon the 

title conveyed by the deed. Since we do not know the 

facts as to the performance by Company "F" of the covenants recited as part of the consideration, we cannot 

pass on the present status of the title conveyed. 

Based upon the assumptions of good title in 

the City at the tfme of the deed, no failure of consideratfqn, and~no~~ccmveyance~or encumbrance by Company 

"P" prior to its dissolution, it is our opinion that the 

property belongs to the State and 1s subject to control 

by law. 

Subse~quent%o.the execution of,the Instant 

;;~,;h;&gls~ature~pa~ssed Art. ~5885, V.C.S., in Its 

. This. statute Is the only authorfty for 

d~onaticms,of lgnd.,by &ties to the Natfonal Guard. See 

Arm0 aboard v. ,+k%raw 132 Tex. ,613 126 S.W.Pd 627 638 

(1933. The particle abplles to conv&ances before aiid after &ts effective date. It provides that the council of 

each city or: town in this~ State fs authorkzed: 

I, . . e to donate, either in fee simple 

or otherwise to the Texas National Guard Armory Board, or to any one or more of said 

,unlts for conveyance to said Board, one or 

more tracts of land as sites upon which to construct Armories and other buildings suitable 

for use.by such units; and any and all such 

donations heretofore made + . . to any such 

adm$nlstratlve unit, either as a corporation 

or othgwise, and conveyed or to be conveyed 

to said Board, is hereby validated." Art.5885, 

V.C.S. 
Hon. IL L. Berry - Page 3 - v-820. 

The same Legislature amended the National 

,Guard Armory Board Act, Acts 1939, 46th Leg. p. 487, 

to provide that the Texas National ffuard Armory Board 

shall ' . . . have charge of the acquisition, construction, rental, control, maintenance and operSftlon of all Texas National Guard Armories. . . 

and that 'I* . . as and when any of the property' ' 

owned by the Board shall be fully psld for . e . the 

Board shall donate, transfer and convey such property, by appropriate Instruments of transfer and conveyance, to the State of Texas. . . ," Article 589Ob, 

V.C.S. 

In view of the nature of the State militia 

as a governmental agency (36 Am. Jur.216), we think 

that the Intent, purpose and effect of the foregoing 

Acts is to vest title to the Instant property In the 

State of Texas, subject to control by the appropriate 

Walsh v. University 

:::::'&v. App. 

Texas, 169 S.W.2d993 

1942, err.ref. ; see 0 Inlon of Attorney General of Texas No. 6 (19477. This Is the 

rule In other jurisdictions under similar National 

Guard laws. See 29 Opinions of Attorney General of 

North Carolina 646 (1947); 1946 OpInIons of Attorney 

General of Illinois 134 136. 47 Opinions of Attorney 

General of Alabama 172 119471; 1945-1946 Opinions of 

Attorney General of Maine 26; 1947-1948 Opinions of 

Attorney General of Nebraska 665. It Is common practfce In Texas and elsewhere for local agencfes of 

government to~gcquire titles for the State, either 

In their name or In the name of the State. Robblns v. 

Limestone County, 114 Tex.345, 268 S.W. 915 (1925); 

Articles 6673b and 6674n, V.C.S.; see Opinion of Attorney General of Nebraska, supra. 

Even If we be mistaken that the State took 

legal title under the deed, It is certain that the 

property In question was held by company "F* for public purposes. Scott v. Logan, 122 Tex.636, 646, 64 

S.W.2d 141 (1933). The members of the defunct com- 

'= 

any therefore have no private title therein. 40 C.J. 

05; 57 C.J.S.1109. Since Company "F", prior to Its 

dissolution, did not exercise what powers of dlsposltion It mlght have had under Articles 5784 and 5797, 

R.C.S., we think that the property may be used for 

armory purposes by such unItas ,may be designated by 

property authority. Article 5781, R.C.S.; Articles 

5790 and 589Ob, V.C.S. 
Hon. Ic. L. Berry - Page 4 - v-820. 

In order.to simplify the matter, It might be 

well for the Texas National Guard Armory Board to take 

a deed from the City of Houston. 

SUNNARY 

Pruperty conveyed by a' uity In 

1938, to a unft,of the Texas Natfonal 

Guard no longer In existence because 

of reurganlzatton of the,%th Mvision 

-may bye used for~%-rmorypurposes by such 

unft aa may be deatgnated by proper au- 

:::i';~~O, 

Article 5781 R.C.S * Arti5685~and 58&3b, Vi:S. 

Yours very truly 

ATTORNEYGENNRAL OF TJK@ 

BHR:bt BY ’ Ben H. Rice, 111 

Assistant 

APPROVED 

SL 2d 

ATTORNEiYGENNRAL'