P 

September 28, 1988 

Mr. T. R. Fehrenbach 

Chairman 

Opinion No. JM-958 

Texas Antiquities Committee Re: Jurisdiction of the State 

P. 0. BOX 12276 

Austin, Texas 

Antiquities Committee over 

78711 property held by an independent school district (RQ-1404) 

Dear Mr. Fehrenbach: 

On behalf of the Texas Antiquities Committee you 

request advice on the authority of the committee to 

designate school district buildings as state archeological 

landmarks. Your questions arise because of legal challenges 

to the committee's 

authority 

attempts to exercise its statutory 

over school district See 

Anticfuities Committee 

property. Texas 

Dallas C untv Commun itv Collese 

Distr ict, 554 S.W.2d 9;; (Tex. 197;). We will review the 

committee's statutory authority and relevant case law before 

turning to your specific questions. 

The committee is created by section 191.011 of the 

Natural Resources Code, and its powers and duties are set 

out in the Antiquities Code of Texas, sections 191.001 

through 191.174 of that code. &R Nat. Res. Code § 191.001. 

It "shall . . . determine 

marks . . . 

the site of and designate landas provided in Subchapter 

the Natural Resources Code. 

D" of chapter 191 of 

Subchapter D provides that: 

Nat. Res. Code 5 191.051(b)(2). 

[slites, objects, 

implements, 

buildings, artifacts, 

and locations of 

archeological, 

historical, 

scientific, or educational 

interest . . . that are located in, on, or 

under the surface of any land belonging to 

the State of Texas or to any county, city, or 

political subdivision of the state are state 

archeological landmarks and are eligible for 

designation. 

Nat. Res. Code § 191.092(a). A structure 

historical interest if it: 

or building has 

p. 4855 
,. 

Mr. T. R. Fehrenbach - Page 2 (JM-958) 

(1) was the site of an event that has 

significance in the history of the United 

States or the State of Texas: 

(2) was significantly associated with the 

life of a famous person: 

(3) was significantly associated with an 

eventthat symbolizes an important principle 

or ideal: 

(4) represents a distinctive architectural type and has value as an example of a 

period, style, or construction technique; or 

(5) is important as part of the heritage 

of a religious organization, ethnic group, or 

local society. 

Nat. Res. Code S 191.092(b). 

Before the committee may designate a structure or 

building as a state archeological landmark, it must be 

listed on the National Register of Historic Places. Nat. 

Res. Code 5 191.092(c); see 16 U.S.C. 5 470(a). The 

committee is required to adopt rules establishing criteria 

for such designations and must consider "any and all fiscal 

impact on local political subdivisions" before it may 

designate as a state archeological landmark a building or 

structure owned by a political subdivision. Nat. Res. Code 

f 191.092(d), (e). 

Landmarks designated under section 191.092 of the code 

"are the sole property of the State of Texas and may not be 

removed, altered, damaged, [or] destroyed . . . without a 

contract with or permit from the committee." & s 191.093. 

This provision has been the focus of conflicts between the 

committee's role in preserving the historical value of state 

archeological landmarks owned by school districts, see 

Attorney General Opinion JM-104 (1983), and the school 

district's interest in using, altering, or replacing its 

buildings to carry out its educational purposes.. &8 Texas 

ittee v. Dallas County Communltv Collea 

District, sunrq G Hoard of R cents lker 

608 S.W.2de 252 (zex.W:iv. 

Count: 

Historical Com~zssron 

Houston [14th Dist.1'1980, 

APP. - 

no writ) (building located on 

land administered by Board of Regents of the Texas State 

University System). 

--. 

p. 4856 
Mr. T. R. Fehrenbach - Page 3 (JM-958) 

Texas Antiauitie 

Collece District is t:e leadinTc&e on t:e authority 0: the 

Antiouities Committee and some of vour o-uestions are 

specifically based on it. In the palias Co&y case, the 

Texas Supreme Court set aside an order of the Antiquities 

Committee denying the Dallas County Community College 

Distr~ict a permit to demolish three buildings. The court 

was divided on both the reasoning and result of this case. 

An opinion of~four judges Nled in favor of the community 

college district on the ground that a provision of the 

Antiquities Code was both unconstitutional and unconstitutionally applied, and that the permit denial was not 

supported by substantial evidence. The chief justice 

concurred on the basis of the substantial evidence rule and 

declined to reach any constitutional question. Four judges 

dissented. 

The prevailing opinion of four judges determined that 

former section 6 of article 6145-9, V.T.C.S., the predecessor to section 191.092(a) of the Natural Resources Code, 

was unconstitutionally vague and lacked sufficient standards 

governing the delegation of legislative authority. The 

predecessor statute declared buildings and locations of 

historical, archeological, scientific, educational 

interest located on lands of political sub%visions to be 

State Archeological Landmarks. The Antiquities Committee 

contended only that the Dallas buildings were "of historical interest." Neither the statute nor any rule gave 

this description more specificity or predictability, and the 

law did not include the explicit standards necessary to 

prevent arbitrary and discriminatory enforcement. 554 

S.W.Zd 924, at 928. 

The same opinion also found the Texas Antiquities Act, 

formerly article 6145-9, V.T.C.S., unconstitutional as 

applied to the community college buildings because no substantial evidence supported the action of the Antiquities 

Committee. 554 S.W. 2d 924, at 928. The evidence was such 

that reasonable minds could not have reached the conclusion 

that the committee must have reached. Restoration of the 

buildings would require the diversion of public funds held 

in trust to benefit people in the school district. In 

addition, the buildings could not be restored except by 

spending an unreasonable amount of money, and even costly 

rebuilding would not make them usable for educational 

purposes. 554 S.W.2d 924, at 929. 

In answer to the argument of the Antiquities Committee 

that a political subdivision has no contract or property 

rights protectable against the committee#s powers, the 

p. 4857 
,, 

Mr. T. R. Fehrenbach - Page 4 (JM-958) 

opinion pointed out that a state agency could not divest 

property and contract rights in violation of specific 

constitutional provisions. Snr: &ove v. Citv of Dalla 

S.W.Zd 20 (Tex. 1931); &ilam Cq&ntv v. BatemaD, 54 Tex.' 

40 

163 

(1880). 

We turn to your seven questions. 

You first ask whether the committee's designation of a 

public school building as a state archeological landmark 

(SAL) would divert dedicated educational funds or property 

to non-educational purposes in violation of article VII, 

sections 3 and 6, of the Texas Constitution. 

you ask as your second question whether the committee's 

denial of a school district's request for a permit to 

demolish a designated building would divert educational 

funds or property to non-educational purposes in violation 

of article VII, sections 3 and 6, of the Texas Constitution. 

Article VII, section 3, of the constitution requires 

that certain tax revenues shall be used to support the 

llpublic free schools." See Attorney General Opinion H-961 

(1977). Article VII, section 6, provides that lands granted 

to the counties for educational purposes are the property of 

the counties, with title thereto vested in the counties. 

The lands and proceeds generated by the sale thereof are to 

be held by the counties "as a trust for the benefit of 

public schools therein." See Attorney General Opinion 

JM-729 (1987). 

The prevailing opinion in Texas Antiouities Committee 

V. Dallas Countv CommuDitv Collese District, in saying that 

constitutional prohibitions would restrain one state agency 

from divesting vested property and contract rights of 

another agency of the state, cited and discussed Love v. 

Citv of u, a, and Bilam Countv v. Bateman, szuEmr 

cases relying. on article VII, sections 3 and 6, respectively. In Wilam Countv v. BatemaD, the court stated that 

the state may not arbitrarily take school land from the 

county and give it to private parties. Milam Countv, 54 

Tex. 163, at 166. In Love v. Citv of Dallas, the Supreme 

Court found violative of article VII, section 3, legislation 

which required a school district to use its funds to educate 

persons who. did not reside in the district. The school 

funds and properties were held in trust by the city, school 

district, county, or other statutory agency to be used for 

the benefit of the school children of the community and the 

legislature could not devote them to any other purpose. 

&yg, 40 S.W.Zd 20, at 26. Seem also Citv of El Paso v. El 

p. 4858 
P 

Mr. T. R. Fehrenbach - Page 5 (JM-958) 

tv Colleae District 729 S.W.2d 296 (Tex. 1986) 

(providing that article VIII,' section l-g(b), of Texas 

Constitution creates exception from article VII, section 3 

prohibition against school tax funds being used for 

non-educational purposes). 

We turn to your first question. The designation of a 

school building as an SAL serves to retain the status guo 

and to subject the building to the committee's jurisdiction 

and to the permit requirement in section 191.093 of the 

Natural Resources Code. a Hoard of Reaents v. Walker 

Countv Hiswcal oassion 608 S.W.2d 252 (Tex. Civ. App. 

- Houston 114th D:st.] 1986, no writ): Attorney General 

Opinion MW-378 (1981). Thus, it is certainly possible that 

the designation of a building would not change the district's use of dedicated educational funds or property. We 

cannot, however, rule out the possibility that on the facts 

of some cases the SAL designation will have the effect of 

making such a diversion, for example, by requiring the 

school to maintain a building that can no longer be used for 

educational purposes. 

The answer to your second question will depend on 

the facts of the particular situation, and it cannot be 

answered in an Attorney General Opinion. The court in 

Texas 

Colleae District; indicated that a constitutional question 

would not have arisen if funds other than public school 

money had been available. 554 S.W.2d 924, at 928. Moreover, 

on the facts of that case, the buildings could not have been 

made usable for educational purposes. Different facts 

presumably could yield a different conclusion. 

your third question is as follows: 

Is the Committee's reading of the pBllas 

County case correct in that where funds not 

subject to the "public trust01 are available, 

the SAL designation and ownership of the 

building's intrinsic value may not be 

disturbed absent a showing of. unsuitability 

for educational purposes? 

The Antiquities Committee had not designated any of the 

three buildings at issue in the Dallas County case as state 

archeological landmarks. 554 S.W.Zd 924, at 926. Before 

the Supreme Court issued its opinions in that case, this 

office read the statute itself to designate certain 

publicly-owned properties as state archeological landmarks. 

See Attorney General Opinions H-620 (1975); H-250 (1974). 

p. 4859 
Mr. T. R. Fehrenbach - Page 6 (JM-958) 

Since the mlas County case concerned the denial of a 

demolition permit, we will answer your question in terms of 

the committee's denying a permit to demolish a building. 

We do not agree with your characterization of the 

supreme court's decision. Five judges agreed that "this 

particular determination of the Antiquities Committee is not 

supported by substantial evidence." 554 S.W.Zd 924, at 931 

(concurring opinion). This was the basis of the majority 

decision. The committee acted 

sound basis with respect to 

arbitrarily and without a 

the Dallas buildings, as shown 

by the reasons set out in the first opinion. ;EBt In 

addition to evidence on the issues you mention, the court 

cited evidence that the buildings could be restored only by 

complete reconstruction from the foundation up at a cost 

greater than new construction and that the outside walls 

might collapse if reconstruction were undertaken. Similar 

evidence, as well as facts not before the court in the 

Dalla C UntY could be relevant to other exercises of 

the c&m~ttee~?s$mit power over SAL-designated school 

district buildings. As this office stated in Attorney 

General Opinion H-620 (1975), a site may be "of such slight 

historic interest and of such little utility" that denial of 

a permit would be an unreasonable and arbitrary exercise of 

the committee's power. 

to school buildings 

Whether other actions with respect 

are supported by substantial evidence 

must be determined on a case-by-case basis by an adjudicator 

with power to make fact-findings, and cannot be determined 

in an attorney general opinion. 

Your fourth gues~tion is as follows: 

If the answer to one, two and/or three is 

no, then to what extent, if any, may the 

Committee constitutionally and statutorily 

subject public school properties to its 

jurisdiction? 

To the extent that this question can be answered in the 

abstract, it has been 

your questions 

answered in the discussion preceding 

and the discussion of 

questions. 

your first three 

your fifth question is as follows: 

If a public school district allows a SAL 

designation of one of its properties, has the 

school district waived its right to assert 

the diversion principle in future proceedings 

(A, demolition permit proceedings)? 

p. 4860 
Mr. T. R. Fehrenbach - Page 7 (JM-958) 

The Antiquities Committee is subject to the Administrative Procedure and Texas Register Act, article 6252-13a, 

V.T.C.S., and the Natural Resources Code, section 

191.021(a). A %ontested case" under that Act includes a 

proceeding in which an agency decides whether or not to 

issue-~a permit. m V.T.C.S. 6252-13a, s 3(2), (3). Your 

request letter in fact states that the committee deals with 

requests for demolition of SALs as contested cases under the 

Administrative Procedure and Texas Register Act. See also 

Attorney General Opinion MW-378 (1981) (committee's decision 

in permit application cases will be tested under the 

substantial evidence rule). The Administrative Procedure 

and Texas Register Act gives parties to a contested case 

notice and an opportunity for hearing as well are a right to 

judicial review after exhaustion of administrative remedies. 

V.T.C.S. art. 6252-13a, 55 13, 19. 

You next ask whether the committee's denial of a 

demolition permit to a public school district constitutes an 

unconstitutional taking of property without compensation. 

Article I, section 17, of the Texas Constitution 

provides in part: 

No person's property shall be taken, damaged 

or destroyed for or applied to public 

use without adequate compensation being 

made . . . . 

In 2 

;.:.:d)2:9 (Tex. Civ? App. - Tylk '19795) 

Au t'n, 582 

writ ref'd, 

. . - , a case involving zoning of a privately-owned hotel 

as a historic landmark, the court held that the city imposed 

a servitude on property when it restricted the owners from 

reconstructing, altering, removing, or demolishing the 

building without a permit. Since the city made no provision 

for any compensation to the owners, the court held that 

there had been a "damaging" of the property for public use 

without adequate compensation in violation of article I, 

section 17, of the constitution. ;EBL at 238. Thus, designation of private property as a state archeological landmark 

or denial of a demolition permit for private property may 

invoke the requirement for adequate compensation in article 

I, section 17. 

Article I, section 17, has generally been read, 

however, as applying to~the taking, damaging, or destruction 

of private property. See. e.a,, State v. Steck Co 236 

S.W.2d 866, 869 (Tex. Civ. App. - Austin 1951, writ r;f*d). 

Public property may be taken for another public use if there 

p. 4861 
Mr. T.~ R. Fehrenbach - Page 8 (JM-958) 

is express or implied legislative authority to do so, if the 

additional public use will not materially interfere with the 

existing use, or if the subsequent taking is for a public 

purpose of greater importance which cannot be accomplished 

in any other practical way. ustin Indeoendent School 

pistrict v. Sierra Cl& 495 S.W.td 878 (Tex. 1973); Sn llen 

224 S.W.Zd 305 (Tex. Civ. Ap;. - 

writ ref'd n.r.e.). The committee has 

statutory auth&ity to designate school buildings as SALs 

and to grant or deny demolition permits to the school 

district. If it exercises these powers in compliance with 

all applicable.provisions of law, it will not damage or take 

property without compensation in violation of article I, 

section 17, of the Texas Constitution. Although it has been 

argued as a policy matter that governmental bodies should 

receive compensation when their property is taken, this view 

has not been adopted *in Texas. &R J. M. Payne, Intero vernmental Condemn ion as a Problem in Pub1 

Tzx. Law Rev. 949 (1%3). 

ic Finance, 61 

Your last question is as follows: 

There being no regulatory standards 

concerning the approval or denial of w 

are the penal provisions. of the Code uncon' 

stitutional on their face since the legislature has delegated discretionary authority in 

this area without statutory standards? 

Section 191.171 of the Natural Resources Code 

establishes a criminal penalty for violations of the 

provisions of chapter 191 of the code. It states in part: 

(a) A person violating any of the 

provisions of this chapter is guilty of a 

misdemeanor, and on conviction shall be 

punished by a fine of not less than $50 and 

not more than $1,000, by confinement in jail 

for not more than 30 days, or by both. 

Nat. Res. Code § 191.171(a). 

The Natural Resources Code provides that landmarks 

established under section 191.091 of the code may not be 

removed, altered, damaged, destroyed, salvaged, or excavated 

without a contract with or permit from the committee. Nat. 

Res. Code 8 191..~093. See also Nat. Res. Code 5 191.095. 

The committee "shall . . . consider the requests for 

and issue the permits provided for" in section 191.054 of 

, 

p. 4862 
Mr. T. R. Fehrenbach - Page 9 (JM-958) 

the Natural Resources Code. Nat. Res. 

Section 191.054 provides in part: 

Code 5 191.051(b)(4). 

(a) The committee may issue a permit to 

other state agencies or political subf:;A;ions or to qualified -private institusurve; 

companies, or individuals, for the 

and discovery, excavation, demolition, or restoration of or the conduct of 

scientific or educational studies at, in, or 

on landmarks, or 

eligible landmarks on 

for the discovery of 

public land fi it is 

(b) Restoration shall be defined as any 

rehabilitation of a landmark excepting normal 

maintenance or alterations to 

interior spaces. 

nonpublic 

(Emphasis added.) 

Nat. Res. Code 5 191.054. 

Violations of administrative rules and orders may be 

punishable by a legislatively-established penalty. Dnited 

States v. Gordon, 580 F.2d 827 (5th Cir. 1978); Harrincton 

v. Rgilroad Co~&jssion 375 S.W.Zd 892 (Tex. 1964); Tuttle 

V. Wood 35 S.W.2d 106i (Tex. Civ. App. 

writ rei*d). 

- San Antonio 

Section 191.171 of the Natural Resources 

1931, 

Code 

establishes such a penalty. 

An invalid administrative order may not, however, be 

enforced by a criminal penalty. Your last question thus 

raises the issue of whether section 191.054 is invalid 

because it lacks regulatory standards concerning the 

approval or denial of permits. 

When the legislature delegates to an agency the 

authority to adopt rules and orders, it must prescribe 

adequate standards to guide the discretion it confers. 

Antiouit;ies Couee v. Dal1 8 Comm nitv 

Ex 

Countv 

-District, i4ul2.a: 561 S.W.2dU 503 

(Tex. Crim. App. 1978); Tex. Const. art. II: .q 1; art. 

s 1. The Antiquities Committee has been delegated 

III, 

legislative authority to grant permits, subject to the standard 

that, in the opinion of the committee, the permit is in "the 

best interest of the State of Texas." Nat. Res. Code 

s 191.054. We must therefore determine whether the quoted 

language provides a sufficient legislative standard to 

control the committee's exercise of discretion and to guard 

p. 4863 
Mr. T. R. Fehrenbach - Page 10 (JM-958) 

against arbitrary and unfair decisions on permit 

applications. 

The standard, "in the best interest of the State of 

Texas, " was included in the predecessor of section 191.054 

when the Antiquities Code was adopted in 1969. Acts 1969, 

61st Lag., 26 C.S., ch. 2, 5 10, at 101. As adopted, the 

permit provision read in part as follows: 

The Antiquities Committee shall 

authorized to issue permits to other stat: 

agencies or institutions and to qualified 

private institutions, companies, or individuals for the takina. salvaainc. excavation, 

restorina. or the conductinc of scientific or 

educational studies at, in, or on State Archeological Landmarks as in the opinion of the 

Antiquities Committee would be &) the b t 

kiterest of the State of Texas . (Rmpha% 

added.) 

XL 5 10. 

This provision did not originally appear to contemplate 

the alteration or demolition of a public building which had 

been designated as a State Archeological Landmark. It was 

more relevant to activities such as salvaging or restoration 

that were consistent with the purpose of historical preservation set out in the code: 

It is the public policy and in the public 

interest of the State of Texas to locate, 

protect, and preserve all sites, objects, 

buildings, pre-twentieth century shipwrecks, 

and locations of historical, archeological, 

educational, or scientific interest . . . . 

Nat. Res. Code 5 191.002. Thus, in the context of the 

original Antiquities Code, the cited standard could be read 

together with the purpose clause to require the committee's 

permit decisions to serve the state's best interest relative 

to historical preservation. See. e.a S ate D D 

z;zt;;,""', 409 So.2d 53, 57 $a. :pp. 19:2:* (:: 

interest of the public" refers to best . . interest of'taxpayers of state): -cation of Pribil 

N.W.2d 356, 358 (Neb. 1966) ("best interest" in &at::: 

relating to land transfers between two school districts 

means best educative interest). 

p. 4864 
Mr. T. R. Fehrenbach - Page 11 (JM-958) 

Moreover, the adoption of the Antiquities Code was 

precipitated by the state's efforts to reclaim 16th century 

artifacts removed by a 

galleon which sank 

salvage company from a Spanish 

off the shore of Texas. 

exas Ant ties Code. An 

Comment, !f& 

. 

*%&text, 24 SW. L.9 

Criteria for D~~&D&&D I 

76 (1979). 

11 St. Mary's 

-See Platoro. Ltd. v. Unidentified 

of a Vessel Supp. 351 (S.D. Tex. 

m. 371 F. Supp. 

1970),~ 

Tex. 1973), rev d on 

m, 508 F.2d 1113 (5th Cir. 1975) (PlatoLo I) 

o ther 

The 

emergency clause of the bill adopting the code stated in 

pa*: 

The fact that irreparable damage and harm is 

rapidly being done to the archeological and 

historical heritage of the State of Texas and 

its citizens, and that historical and 

archeological sites, and treasures on public 

lands are without adequate legal protection 

and supervision and are being destroyed and 

damaged without lawful authority, create an 

emergency . . . . 

Acts 1969, 61st Leg. 2d C.S., ch. 2, 5 23, at 103. 

Thus, the nbest interest" standard was adopted by a 

legislature anxious to stop private interests from damaging 

the state's archeological and historical resources and 

imposed a duty on the committee to make permit decisions 

that would serve the state's interests in such resources. 

These circumstances also support the conclusion that the 

committees should make permit decisions that would serve the 

state's interests in such resources. 

The "best interest" language has not changed, while 

other provisions of the Antiquities Code have been amended 

to acknowledge that other important public interests exist 

in the governmental functions carried out by political 

subdivisions. .The committee must now consider "any and all 

fiscal impact" on a local political subdivision before 

designating a building or structure which it owns as a state 

archeological landmark. Nat. 

m Nat. Res. 

Res. Code 5 191.092(e). See 

Code 5 191.021(b) (procedure for considering 

educational purpose 

designation). 

of higher education buildings in SAL 

Moreover, now that section 191.054 expressly 

authorizes the committee to issue a demolition permit for a 

building previously designated as a state archeological 

landmark, the committee presumably has a duty to consider 

the applicantts reasons why such a building should be 

p. 4865 
Mr. T. R. Fehrenbach - Page 12 (JM-958) 

-, 

demolished and not preserved. The "best interest" standard, 

as originally understood, provides the committee little 

guidance when it has to reconcile the state's interest in 

historical preservation with a political subdivision's 

competing interest in controlling the use of its real 

property to carry out its own legislatively-imposed 

responsibilities. 

In Taxas Antwties Coattee v. Dallas Countv Commnltv Colleae District the prevailing opinion of the 

supreme court included the following discussion of standards 

that should accompany the legislature's delegations of 

powers to state agencies: 

Depending upon the nature of the power, the 

agency, and the subject matter, varying 

degrees of specific standards have been 

required in testing the reasonable breadth of 

statutes. 1 Sutherland, Statutory Construction, 5 4.05 (4th ed. 1975); &R&n v. State 

Board f Insurance, 160 Tex. 

278 $60). 

506, 334 S.W.Zd 

Sound reasons support the rule 

that some reasonable standard is essential to 

the constitutionality of statutory 

delegations of powers to state boards and 

commissions. 

[Quotation from EIgvned v. Citv of 

Roc;rf, 408 U.S. 104, 108-09 (1972) I 

deleted.] 

We adhere to the settled principle that 

statutory delegations of power may not be 

accomplished by language so broad and vague 

that persons *of common intelligence must 

necessarily guess at its meaning and differ 

as to its application.' 

554 S.W.Zd at 927-28. The same opinion of the court 

considered the argument that administrative standards in the 

form of published rules could be substituted for statutory 

standards. 554 S.W.Zd at 928 [discussing Davis, Administrative Law Treatise, 5 2.16 (1st ed. 1970)]. The opinion 

stated that in the present case no standard or criteria by 

statute or rule provided safeguards for the affected 

parties. 

As the Antiquities Code has been amended to deal with 

the legal questions that arose in the Dallas County case, 

the legislative intent underlying the code has changed to 

P. 4866 
Mr. T. R. Fehrenbach - Page 13 (JM-958) 

acknowledge that public interests other than historical 

preservation may be relevant in particular permit application cases. The "best interest" standard is stated in 

language broad enough to incorporate the modifications in 

the legislative intent brought about by amendments to the 

Antiquities Code. m -tina v. Texas State Board 

Medical EXB ' 

f 

S 310 S.W.2d 557 (Tex. 1958) (amendment a:d 

old law must be C&&Ned as harmonious whole). 

the argument raised 

Relying on 

in the Uas Countv case, we 

the committee may adopt rules which amplify the 

be;::;: 

interest" standard to give weight to the public interest of 

political subdivisions in controlling their resources as 

necessary to perform their constitutionally and legislatively imposed duties. The “best interest of the State of 

Texas" in a particular case could reasonably be an interest 

arrived at by weighing the public interest in preserving 

archeological resources against other important 

interests seNed by the governmental entities 

public 

which have 

custody of archeological resources. 

Accordingly, we do not believe that section 191.054 

must fall for lack of regulatory standards or that 

prosecutions under section 191.174 for violation of the 

permit requirements are impermissible. Whether any permit 

denial is a valid agency action and whether any individual 

is guilty of a violation under section 191.174 must be 

determined on a case-by-case basis in an appropriate forum. 

SUMMARY 

Designation by the State Antiquities Committee of a school building as a state archeological landmark could divert dedicated 

education funds or property to non-educational 

purposes in violation of article VII, sections 

3 and 6, of the Texas Constitution, 

on the facts of the particular case. 

depending 

Whether 

the committee's denial of a school district's 

request for a permit to demolish a designated 

building would cause such a diversion of 

educational resources would have to be decided 

on a case-by-case basis, considering the facts 

of each particular situation, and subject to 

review by the courts for substantial evidence 

to support the committee8s decision. The 

committee's decisions in permit application 

cases are contested cases under the Administration Procedure and Texas Register Act and 

the applicants for permits have a right under 

p. 4867 
Mr. T. R. Fehrenbach - Page 14 (JM-958) 

that statute for judicial review of the 

committee's decision. 

The committee's denial of a demolition 

permit to a school district does not constitute an unconstitutional taking of property 

without compensation in violation of article 

I, section 17, of the Texas Constitution. 

Section 191.054 of the Natural Resources 

Code, which authorizes the committee to issue 

a demolition permit for state archeological 

landmarks if "it is the opinion of the committee #at the permit is in the best interest 

of the State of Texas," is not invalid for 

lack of standards to guide the committee's 

exercise of delegated legislative power. The 

"best interest" standard may be made more 

specific by reading it in reference to other 

provisions of the Antiquities Code which 

evidence the legislature's intent for exercise 

of the committee's permit power. 

JIM MATTOX 

Attorney General of Texas 

MARYRELLER 

First Assistant Attorney General 

Lou MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEARLRY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 4868