Hon. K. L. Berry

Adjutant Qeneral Austin, Texas Opinfun No. V-820
Re: The ownezwhfpof certain ,$&conveyed to Company llltbRn@neer Reglmeni, 36th~Mvislon; Texas ~NatfOnal

Guard, by the City of Ilouston,

followingreorganizationof 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 NatfonalGuard. The deed recites that:

“It~2s -thebrtent an&-pwqwm of this amveymce to~,,vest ..a -.fWl;ani+cwmplete fee .timpfe ~title to -%heahwe described land In =. .,w,..+,F’ ,..e -baby,- ~-certafnconxmamw, xwvwmma -and llmftatlonacontained in a deed heretoforeexecutedby the aald City of Houston to the said Company ‘Ft.” The deed contains certain covenantsundertakenby Company “F’ as a part of the consideration.

You state that the 36th Divisionhae been reoqanlzed, and that the unit formerlyknown as Company “F Is to be redesignated Battery “B , 47th FA Battalion (obn). You ask:

n the opinion of your office regard& Ch& legalityof the ownershipof the propertydescribed in the attacheddeed. It Is the interpretation of thle office that the unit of tE6 Texas,

NationalGuard designated as the successor of Company “P”, 111th Rngineer Regiment, 36th Mvlslon Texas National Quard, inherits the traditionsand historicalBon. K. L. ferry - Page 2 - V-820.

aontfntity,a8 well as propertieswhich may have been originallyowned by Company nFn.
. . . "Your~opfnfan

is'neeessaryto enable this Departmentto proceedwith plans for the constructionof an armory on the property. a . .' The copy of the deed furnisheddoes not show its execution. We do not have a copy of the ordinance of the City Council of Houstonwhich 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 conveyedby the deed. Since we do not know the facts as to the performanceby 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 assumptionsof good title in the City at the tfme of the deed, no failure of consideratfqn, and~no~~ccmveyance~or encumbranceby Company "P" prior to its dissolution,it is our opinion that the propertybelongs to the State and 1s subject to control by law. Subse~quent%o.the executionof,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 NatfonalGuard. See Arm0 aboard

v. ,+k%raw 132 Tex. ,613 126 S.W.Pd 627 638 (1933. The particle abplles to conv&ances before aiidafter &ts effectivedate. 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 NationalGuard Armory Board, or to any one or more of said ,unlts for conveyanceto said Board, one or more tracts of land as sites upon which to constructArmories and other buildingssuitable for use.by such units; and any and all such donationsheretoforemade + . . to any such adm$nlstratlve

unit, either as a corporation or othgwise, and conveyedor to be conveyed to said Board, is hereby validated." Art.5885, V.C.S.Hon. IL L. Berry - Page 3 - v-820.

The same Legislatureamended 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,maintenanceand operSftlon of all Texas NationalGuard 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, transferand convey such property, by appropriateInstrumentsof 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 Instantproperty 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 AttorneyGeneral of Texas No. 6 (19477. This Is the rule In other jurisdictions under similarNational 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; 1945-1946Opinions of AttorneyGeneral of Maine 26; 1947-1948Opinions of Attorney General of Nebraska 665. It Is common practfce In Texas and elsewhere for local agencfes of governmentto~gcquiretitles for the State, either In their name or In the name of the State. Robblns v. LimestoneCounty, 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 questionwas 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 thereforehave no private title therein. 40 C.J. 05; 57 C.J.S.1109. Since Company "F", prior to Its dissolution,

did not exercisewhat powers of dlsposltion It mlght have had under Articles 5784 and 5797, R.C.S.,we think that the propertymay be used for armory purposesby such unItas ,may be designatedby property authority. Article 5781, R.C.S.; Articles 5790 and 589Ob,V.C.S.Hon. Ic. L. Berry - Page 4 - v-820.

In order.tosimplify the matter, It might be well for the Texas NationalGuard Armory Board to take a deed from the City of Houston.

SUNNARY

Prupertyconveyedby a' uity In 1938, to a unft,of the Texas Natfonal Guard no longer In existencebecause of reurganlzatton

of the,%th Mvision -maybye

used for~%-rmorypurposes by such unft aa may be deatgnatedby 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'