June 23, 1958

General Dallas J. Matthews OpinionNo. ~~-460 Director, TexasNational Guard Armory Board Re::The~authorityof Austin, Texas the Texas National Guard Armory Board to eell'property located at Waoo and Dear GeneralMatthews: lioueton, Texas.

Ina recent opinion request of this offloe ycu state the following:

"TheTexasNational Guard Armory Board
owns two tracts of landwhich~lt Is desirous of offering for publio sale to the highest bidder.

"Oneof 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 acquiredby 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 subsequentlydeveloped that the property was not suitable for suchuse and It has remainedvacant for severalyears. At no time since Its acquisitionhas there been any lien
or debt against this tract of land. Through the years ithas inoreased In value due to the growth of the City of Houston and is presently appraised at something in excess of $100,000.

"The seoondpiece of propertywith whloh the Board is concerned IS known as the Grand Lodge Bullding In downtownWaco, Texas. This property consists of a lot and a two-storybuildingwhich was aoqulredc

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 securedby a deed of trust lien against the premises. The debt
was paid off in 1956, and the lien against the propertywas released at that time. A oopy of the release is also enclosedherewith for your convenience.

"Bothof the properties above referred to are now surplus to and in excess of the needs of the TexasNational Cuard Armory Board, which desires to sell them to the highest bidder for cash andapply the proceeds of the sale to the constructionof other armories throughout the State. In this connection,your attention is respectfully invited to Article 5890b,V.C.S., the statutewhich created and empowered the Armory Board, and specificallyto Section 2(f).

. . "Alsopertinent to this inquiry is Section 3 of Article 589Ob,with reference to transfer of propertyby the Board to the State of Texas.

"Inaddition,we would appreciateyour view
as to theprocedure 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 saidArtlolemakes it the duty of the TexasNational 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:

"Thefact 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 acquisitionof one or more Armories andGeneral 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 contemplatedby this Act,

. . .' (?Xmphaeis added.)

The secondAct, Section 3 reads In part as follows:

"The fact that It Is essential that the

existing law relative to Texas National Guard armoriesbe amended so as to authorize and permit the immediate Issuance of seouritlesto obtain funds for constructionand acquisitionof armories and thereby take advantage of grants and loans from the Federal Government and Others for armorypurposes, (Emphasisadded.) 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 theprimary purpose for the creation of the National Guard Armory Board was to provide
a method for obtaining armories for the Texas National Guard. In furtheranceof this aim the Legislatureby the provlslons of Section 2 has delegated to the National Guard Armory Board "allthe powers necessary and convenient for the accomplishment of such duty includingbut without being limited to the following expresspowers". Section 2 of Article 589Ob then sets out in letteredparagraphs (a) through (i)a number of expresspowers 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 Powers contained in Section 2 is that found in Section 2(f which reads in part:

"Toacquire,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 connectionwith or for use of units of the Texas National Guard, property of any and every description,whether real,personal or mixed, including,but without limitationon 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: inwhole-or in part;.

authorizes the conveyance the Board In the followingGeneral Dallas J. Matthews,page 4 (~~-460)

"To construotbuildings on any of Its realproperty,whether held in fee simple or otherwise, and to furnish and equip the same and to hold, manage andmaintain all of said property and to lease to the State of Texas, in the samemanner as hereinafterprovided with respect to other property, the buildings, and the sites thereon situated,which itmay constructat Camps Mabry, Hulen and Wolters, and to lease and sub-lease conve and exohange, Inwhole 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 borrowmoney and to issue and sell bond debentures and other evidencesof Indebtednesswith the purpose of acquiring sites for armories and for the construc- ~tionof armories, aaid indebtednessto be securedby pledge of the rents, issues and profits of the property held by the Board.
Clearly the Legislaturehas delegated to the Texas National Guard Armory Board the authority to acquire, control, incumber,exchange, and conveyproperty in furtheranceof Its primary duty to obtain armories for the Texas National Guard; however, the Legislaturehas provided by Section 3 of Article 5890b thatwhen the indebtednessagainst any of the property so obtainedby the Board for armorypurposes is extinguished, the Hoard's delegated authority and control over such property terminatesand thenceforth is investeddirectly in the Legislature. Section 3 reads as follows:

"Asand when any of theproperty owned by the Board shall be fully paid for, free of all liens, and all debts and other obligations lncurred in connectionwith the aoquisitionor constructionof suoh propertyhave been fully paid, the Board shall donate, transfer and convey suchproperty,by appropriate instruments of transfer and conveyance, to the State of Texas, and such instrumentsof transfer and conveyance shallbe 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 sectionsare 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 furtheranceof this function the Board is authorizedby Seotlon 2(f) to acquireby gift or purchaseGeneral Dallas J. Matthews,page 5 (~~-460)

real property.Undoubtedlymany times a situationmay arise wherein the property so acquired is not directly suited for
an armory.siteand Is never utilized as such by a Texas Natlonal Guard unit. And undoubtedly situationawill arise where property'

is suited for armorypurposes 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 Legislaturehas contemplated suoh ocauranoes and has provided for the conveyanceand exohange by the Board of auoh unsuitable property, in order that the Board might proceedwith its paramount or primary function, i.e., the acquisitionand construation of armories for the TexasNational Guard.

However, we believe it is quiteplain 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 Guardunits once the armorieswere free and clear of the incumbrancesof acquisition and construction.This oonstruotionof Sections 2(f), 2(g) and 3 gives recognition to all three sections and likewise fulfills the expressedpurpose of Article 589Ob.

In the instant case the tract of land located in Harris Countywas acquiredby the Board for the purpose of constructingfacilities for a TexasNational Guard unit but before this property could be developedby the Board and put to such a use by a Texas National Quard unitit became unsuitable for such purpose.We believe the Legislaturehad .tiiis type of situation inmind when it providedunder Section I; that theNational GuardArmory Board might "conveyand exchange suchproperty". Therefore,we informyou that the ,Te.xas Katlonal Guard Armory %ard is authorized to sell the property looated in Harris County, Texas, as authorizedby Section i-!(f)

of Article 589Ob,V.C.S.

In a conferencewith the attorneys for the National Guard Armory Board we obtained further information concerning t.he property in Waco, Texas. This propertywas acquired for and used as an armory by a Texas National Guard unit and was so used at the time of the retirementof the debt of acquisition against the property in 1956. We believe that the Waco property falls directlyunder theprovisions of Section 3 of Article j&Ob and that this property is now under the direct control of the Legislature.We therefore informyou 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 theprocedure 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 sellproperty 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 Leglslaturehas left theprocedure to be followed for suah a sale within the discretionof the Board. However, the Legislature has provided procedures for the sale of real property by other State departments, instrumentalities,and agencies. In this respectwe alte to you as a guide the prooedure set forth for the dispositionof realty at public saleby oounties in Article 

### 1577,V.C.S.,and for dls oaltlon of public free school land
as set forth in Article 5t21c-3,V.C.S.

SUMMARY

The tract of land free of all liens and lncumbranaesof approximately 10 acres on Post Oak Road, Houston, Harris County, Texas, acquired by the TexasNational 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 aaquiredby 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 Legislatureof 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