June 23, 1958 

General Dallas J. Matthews Opinion No. ~~-460 

Director, Texas National Guard 

Armory Board Re::The ~authority of 

Austin, Texas the Texas National 

Guard Armory Board 

to eell'property 

located at Waoo and 

Dear General Matthews: lioueton, Texas. 

Ina recent opinion request of this offloe ycu 

state the following: 

"The Texas National Guard Armory Board 

owns two tracts of land which~lt Is desirous 

of offering for publio sale to the highest 

bidder. 

"One of these traots of land is looated 

in Houston, Harris County, Texas, on Post Oak 

Road. This tract of approximately ten aares, is 

unimproved and was acquired by the Board in 1938 

(19471) by oonveyanQe from the Houston Cavalry 

Club. The oopy of the deed to this property is 

enolosed for your convenience. At the time of its 

acquisition, the Armory Board intended to construct 

thereon faoilities Par use of a unit of the Texas 

National Guard. However, it subsequently developed 

that the property was not suitable for such use and 

It has remained vacant for several years. At no 

time since Its acquisition has there been any lien 

or debt against this tract of land. Through the 

years it has inoreased In value due to the growth 

of the City of Houston and is presently appraised 

at something in excess of $100,000. 

"The seoond piece of property with whloh the 

Board is concerned IS known as the Grand Lodge Bullding In downtown Waco, Texas. This property consists 

of a lot and a two-story building which was aoqulred 
c 

Qeneral Dallas J. Matthews, page 2 (~~-460) 

from the Grand Lodge of Texas by deed, a copy 

of which is enclosed. You will note that there 

was a deferred consideration secured by a deed 

of trust lien against the premises. The debt 

was paid off in 1956, and the lien against the 

property was released at that time. A oopy of 

the release is also enclosed herewith for your 

convenience. 

"Both of the properties above referred to 

are now surplus to and in excess of the needs 

of the Texas National Cuard Armory Board, which 

desires to sell them to the highest bidder for 

cash andapply the proceeds of the sale to the 

construction of other armories throughout the 

State. In this connection, your attention is 

respectfully invited to Article 5890b, V.C.S., 

the statute which created and empowered the 

Armory Board, and specifically to Section 2(f). . . 

"Also pertinent to this inquiry is Section 

3 of Article 589Ob, with reference to transfer 

of property by the Board to the State of Texas. 

"In addition, we would appreciate your view 

as to the procedure to be followed in effecting 

such sale if you conclude that It Is authorized." 

Section 1 of Article 589Ob, V.C.S., creates the 

Texas National Guard Armory Board. 

Section 2 of said Artlole makes it the duty of the 

Texas National Guard Armory Board to 

11 . . . have charge of the acquisition, construction, rental, control, maintenance and operation of all Texas National Guard Armories. . ." 

This duty of the Board is likewise expressed in 

the emergency clause of the 1937 and 1939 amendments to Article 

589Ob, V.C.S. 

Acts 45th Leg., R.S., p. 740, ch. 366, Section 3 

reads in part as follows: 

"The fact that it is essential that the exlsting law relative to Texas National Guard Armories 

be amended so as to authorize and permit the issuance of seouritles to obtain funds for construction and acquisition of one or more Armories and 
General Dallas J. Matthews, Page 3 (wk'-460) 

thereby take advantage of the favorable opportunity existing at this time for the securing 

of funds for the purposes contemplated by this 

Act, . . .' (?Xmphaeis added.) 

The second Act, Section 3 reads In part as follows: 

"The fact that It Is essential that the 

existing law relative to Texas National Guard 

armories be amended so as to authorize and permit the immediate Issuance of seouritles to obtain funds for construction and acquisition of 

armories and thereby take advantage of grants 

and loans from the Federal Government and Others 

for armory purposes, 

(Emphasis added.) 

creates an emergenoy. . .' 

Considering the above quoted portion of Section 

2 and the above quoted portions of the emergenoy clauses to 

Acts 1937 and 1939 we see that the primary purpose for the 

creation of the National Guard Armory Board was to provide 

a method for obtaining armories for the Texas National Guard. 

In furtherance of this aim the Legislature by the provlslons 

of Section 2 has delegated to the National Guard Armory Board 

"all the powers necessary and convenient for the accomplishment of such duty including but without being limited to the 

following express powers". Section 2 of Article 589Ob then 

sets out in lettered paragraphs (a) through (i) a number of 

express powers which may be utilized by the Board to achieve 

and accomplish Its primary purpose and duty, I.e., the acquisition of National Guard Armories. One of the enumerated 

express 

P 

owers contained in Section 2 is that found in Section 2(f which reads in part: 

"To acquire, by gift or by purchase, for 

use 2.~ 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, sub-lease, convey and exchange such property, 

in whole or in Dart. and/or to oledze the rents. 

issues and profits thereof 11 

. . . 

SeCtiOn 2(g) lik8WiSe 

and exchange of property owned by 

language: 

in whole-or in part;. 

authorizes the conveyance 

the Board In the following 
General Dallas J. Matthews, page 4 (~~-460) 

"To construot buildings on any of Its 

real property, whether held in fee simple or 

otherwise, and to furnish and equip the same 

and to hold, manage and maintain all of said 

property and to lease to the State of Texas, 

in the same manner as hereinafter provided 

with respect to other property, the buildings, 

and the sites thereon situated, which it may 

construct at Camps Mabry, Hulen and Wolters, 

and to lease and sub-lease conve and exohange, 

In whole or in part, all 0; its pb*erty(g, 

located in either of said camps, . . . 

phasis added.) 

By the provisions of Seotlon 2(h) the Legislature 

has authorized the Board to borrow money and to issue and sell 

bond debentures and other evidences of Indebtedness with the 

purpose of acquiring sites for armories and for the construc- 

~tion of armories, aaid indebtedness to be secured by pledge 

of the rents, issues and profits of the property held by the 

Board. 

Clearly the Legislature has delegated to the Texas 

National Guard Armory Board the authority to acquire, control, 

incumber, exchange, and convey property in furtherance of Its 

primary duty to obtain armories for the Texas National Guard; 

however, the Legislature has provided by Section 3 of Article 

5890b that when the indebtedness against any of the property 

so obtained by the Board for armory purposes is extinguished, 

the Hoard's delegated authority and control over such property 

terminates and thenceforth is invested directly in the Legislature. Section 3 reads as follows: 

"As and when any of the property owned by 

the Board shall be fully paid for, free of all 

liens, and all debts and other obligations lncurred in connection with the aoquisition or 

construction of suoh property have been fully 

paid, the Board shall donate, transfer and convey such property, by appropriate instruments 

of transfer and conveyance, to the State of Texas, 

and such instruments of transfer and conveyance 

shall be kept in the custody of the Addutant General's Department." 

At first glance Section 3 appears to be incompatible 

with Section 2(f) and 2(g). However, the three sections are easily harmonized. As pointed out above the primary function of 

the National Guard Armory Board is to provide armories for the 

Texas National Guard. In furtherance of this function the Board 

is authorized by Seotlon 2(f) to acquire by gift or purchase 
General Dallas J. Matthews, page 5 (~~-460) 

real property. Undoubtedly many times a situation may arise 

wherein the property so acquired is not directly suited for 

an armory.site and Is never utilized as such by a Texas Natlonal Guard unit. And undoubtedly situationa will arise where 

property' is suited for armory purposes at the time of acqulsition but oeases to be so suited by the time armory oonstruotion can be flnanoed and commenced. By Seotlon 2(f) the Legislature has contemplated suoh ocauranoes and has provided for 

the conveyance and exohange by the Board of auoh unsuitable 

property, in order that the Board might proceed with its paramount or primary function, i.e., the acquisition and construation of armories for the Texas National Guard. 

However, we believe it is quite plain that by 

the provisions of Seotlon 3 the Legislature intended to obtain direct control of the armories acquired or construoted 

by the National Guard Armory Board and utilized by Texas 

National Guard units once the armories were free and clear 

of the incumbrances of acquisition and construction. This oonstruotion of Sections 2(f), 2(g) and 3 gives recognition to 

all three sections and likewise fulfills the expressed purpose of Article 589Ob. 

In the instant case the tract of land located in 

Harris County was acquired by the Board for the purpose of 

constructing facilities for a Texas National Guard unit but 

before this property could be developed by the Board and put 

to such a use by a Texas National Quard unitit became unsuitable for such purpose. We believe the Legislature had 

.tiiis type of situation in mind when it provided under Section 

I; that the National Guard Armory Board might "convey and 

exchange such property". Therefore, we inform you that the 

,Te.xas Katlonal Guard Armory %ard is authorized to sell the 

property looated in Harris County, Texas, as authorized by 

Section i-!(f) of Article 589Ob, V.C.S. 

In a conference with the attorneys for the National 

Guard Armory Board we obtained further information concerning 

t.he property in Waco, Texas. This property was acquired for and 

used as an armory by a Texas National Guard unit and was so 

used at the time of the retirement of the debt of acquisition 

against the property in 1956. We believe that the Waco property falls directly under the provisions of Section 3 of Article 

j&Ob and that this property is now under the direct control 

of the Legislature. We therefore inform you that the Texas 

National Guard Armory Board is not authorized to sell the 

property described In your opinion request located in Waco, 

McLennan County, Texas. 

You have also asked the procedure to be followed 

in effecting suah sale if we conclude that a sale is authorized. 
General Dallas J. Matthews, page 6 (~~-460) 

While we believe Section 2(f) authorizes the Board 

to sell property such as that looated in Harris County, no 

method or procedure of sale Is set forth by the Legislature in 

Article 5890b. We believe under this circumstance, the Leglslature has left the procedure to be followed for suah a sale 

within the discretion of the Board. However, the Legislature 

has provided procedures for the sale of real property by other 

State departments, instrumentalities, and agencies. In this 

respect we alte to you as a guide the prooedure set forth for 

the disposition of realty at public sale by oounties in Article 

1577, V.C.S., and for dls oaltlon of public free school land 

as set forth in Article 5t 21c-3, V.C.S. 

SUMMARY 

The tract of land free of all liens and lncumbranaes of approximately 10 acres on Post Oak 

Road, Houston, Harris County, Texas, acquired by 

the Texas National Guard Armory Board for armory 

purposes but never utilized as such by a Texas 

National Guard unit may be sold at public sale by 

the Texas National Guard Armory Board. 

The real property aaquired by the Texas National Guard Armory Board whloh is free of all liens 

and incumbrances, located in Waco, McLennan County, 

Texas, known as the Grand Lodge Building and utilized as an armory by a Texas National Guard unit 

is not subject to sale by the Texas National Guard 

Armory Board but its disposition is under the direct 

control of the Legislature of the State of Texas. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

Milton Richardson 

Assistant 

MR:bh 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

L.P. Lollar 

Richard B. Stone 

REVIEWED FOR THE ATTORNEY 

GENERAL BY: 

W.V. Geppert