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ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

Mr. Andrew C. Hughey 

General Counsel 

Texas Southern University 

3100 Cleburne Avenue 

Houston, Texas 77004 

Dear Mr. Hughey: 

December 8,2011 

Opinion No. GA-0894 

Re: Whether Texas Southern University may 

exchange or grant outright a portion of its real 

property that contains or is adjacent to a historical 

cemetery (RQ-0975-GA) 

On behalf of Mr. Glenn Lewis, Chair ofthe Board of Regents of Texas Southern University 

("TSU" or the "University"), you ask whether TSU may convey real property associated with a 

historic cemetery by exchange or gift. 1 Request Letter at 1. You provide us with the following 

background information. TSU owns three parcels of land associated with the Olivewood 

Cemetery in Houston. [d. at 1-2. The Descendents of Olivewood, a Texas nonprofit corporation 

(the"Corporation"), has been authorized by court order to restore, operate, and maintain the cemetery 

and wishes to obtain TSU property as part of a major restoration project. [d. at 2. Two of TSU's 

parcels contain graves and are dedicated cemetery lands, and the third parcel abuts the cemetery. [d. 

TSU has obtained an appraisal assessing the value of the dedicated cemetery lands as having zero 

value, and the adjacent property as having a value of $11,250. [d. 

The Corporation has proposed that it donate historical papers relating to the cemetery to TSU, 

or grant TSU access to the cemetery for various educational purposes in exchange for TSU's three 

parcels of real property. Id. at 2-3. In light of constitutional restraints on granting state property or 

funds to private entities, you wish to know if TSU may convey the property to the Corporation (1) 

in exchange for the historical papers, (2) in exchange for a right of access to the cemetery, or (3) as 

a gift "to serve the greater public purpose" of historic preservation. Id. at 1-3. 

The TSU board of regents has general statutory authority to acquire and convey land on 

behalf of the University. TEX. EDUC. CODE ANN. § 106.35(a) (West 2002). Property belonging to 

a state university such as TSU is state property. See Walsh v. Univ. of Tex., 169 S.W.2d 993,993 

1 See Letter fromMr. Andrew C. Hughey, General Counsel, Texas Southern University, to Office ofthe Attorney 

General, Opinion Committee at 1 (May 31, 2011), https://www.oag.state.tx.us/opiniindex_rq.shtml ("Request Letter"). 
Mr. Andrew C. Hughey - Page 2 (GA-0894) 

(Tex. Civ. App.-EI Paso 1942, writ ref' d) (observing that property of the University of Texas is 

state property because the university has no existence independent of the state). 

Article III, sections 51 and 52 of the Texas Constitution are complementary provisions 

limiting the Legislature's appropriation of public funds and resources for private purposes, either 

directly or by authority vested in an agency or local entity. See Byrd v. City of Dallas, 6 S.W.2d 738, 

740-41 (Tex. 1928) (observing that article III, sections 51 and 52 prohibit the state and its political 

subdivisions from gratuitously paying public funds for private purposes). Section 51 provides that 

the "Legislature shall have no power to make any grant or authorize the making of any grant of 

public moneys to any individual, association of individuals, municipal or other corporations 

whatsoever." TEX. CONST. art. III, § 51. Similarly, section 52 prohibits the Legislature from 

authorizing any political corporation or subdivision of the state "to lend its credit or to grant public 

money or thing of value in aid of, or to any individual, association or corporation whatsoever." Id. 

§ 52(a). Both sections 51 and 52 have been construed by the courts as "prohibiting the gratuitous 

disposition of the state's money, property, or contractual rights." Rhoads Drilling Co. v. Allred, 70 

S.W.2d 576, 582 (Tex. 1934); accord Tex. Att'y Gen. Op. Nos. JM-1091 (1989) at 2, MW-373 

(1981) at 9 (observing that while article III, section 51 expressly mentions "public funds," it also 

pertains to the disposition of state property and contract rights). Therefore, TSU is constitutionally 

prohibited from making a purely gratuitous transfer of real property to a private entity. See Pasadena 

Police OfficersAss'n v. City of Pasadena, 497 S.W.2d388, 392-93 (Tex. Civ. App.-Houston [1st 

Dist.] 1973, writ ref'd n.r.e.) (holding that gratuitous transfer of property rights violated article III, 

sections 51 and 52, among other constitutional prohibitions). 

However, a transfer of property interests or rights in exchange for adequate consideration is 

not a gratuity. See Walker v. City of Georgetown, 86 S.W.3d 249, 260 (Tex. App.-Austin 2002, 

pet. denied) (determining that a lease of city property for valuable consideration was not gratuitous 

and did not violate the comparable prohibition of article III, section 52(a)). Although you have not 

had the historical papers appraised, your description of the facts suggests that the papers could 

constitute valuable consideration that could support an exchange for the real property in question. 

Also, we recognize that a grant of contract rights or other covenants can constitute consideration that 

will support a transaction, provided it grants a right that the grantee does not already possess. See 

City of Austin v. Austin City Cemetery Ass'n, 73 S.W. 525, 529 (Tex. 1903) (determining that 

permission to use property as cemetery was sufficient consideration to support agreement to limit 

the cost oflots); Pasadena Police Officers Ass'n, 497 S.W.2d at 392-93 (concluding that promise 

to build building was consideration for transfer of public property, but modification of agreement 

without additional consideration was contrary to the constitution); Tex. Att'yGen. Op. No. DM-441 

(1997) at 4 (opining that a grant of city property in exchange for a university's commitment to 

establish a campus on the property could satisfy the requirements of article III, section 52). 

However, whether a donation of the historical papers or the granting of access rights constitute 

adequate consideration for a conveyance of the real property involves questions of fact that cannot 

be determined in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0298 (2005) at 3 

(advising that the value of property is inherently a fact question that cannot be determined in an 

attorney general opinion). Instead, the adequacy of consideration is a determination for the 
Mr. Andrew C. Hughey - Page 3 (GA-0894) 

governing board of the granting entity to make. Tex. Att'y Gen. Op. No. GA-0706 (2009) at 2 

(concerning the findings a governing body must make to make a grant that complies with article III, 

section 52). 

You also ask if TSU may convey the property to the Corporation as a gift "to serve the 

greater public purpose." Request Letter at 3. The grant or transfer of public funds or resources "for 

a public purpose, with a clear public benefit received in return, does not amount to a ... violation 

of article III, sections 51 and 52." Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717,740 (Tex. 

1995). Attorney general opinions have long advised that to avoid a violation of article III, sections 

51 and 52, a governing body that grants funds or property that benefits a person or private entity must 

(1) determine that the grant serves a public purpose and (2) place sufficient controls on the 

transaction to ensure that the public purpose is carried out. Tex. Att'y Gen. Gp. Nos. GA-0743 

(2009) at 2 (discussing attorney general opinions' interpretation of article III, section 51); GA-0321 

(2005) at 2-3 (concerning a lease of public property consistent with article III, section 52); GA-0084 

(2003) at 7-9 (concerning a lease and conveyance of real property consistent with article III, section 

52). However, a grant to benefit the public generally would not suffice; rather, the public purpose 

to be served by the grant must be an authorized public purpose of the granting entity. State ex reZ. 

Grimes Cnty. Taxpayers Ass'n v. Tex. Mun. Power Agency, 565 S.W.2d 258,265-66 (Tex. Civ. 

App.-Houston [1st Dist.] 1978, writ dism'd).2 Therefore, TSU may not grant real property to a 

private corporation except to serve an authorized purpose of the University. Whether granting the 

three parcels of real property owned by TSU to the Corporation would serve a public purpose of the 

University is for TSU's regents to determine in the first instance. See Tex. Att'y Gen. Gp. No. 

MW -373 (1981) at 9-10 (stating that whether grant of university office space rent-free to private 

foundation would serve a public purpose is for the university to determine in the first instance).3 

2See, e.g., Tex. Att'y Gen. Op. Nos. GA-0747 (2009) at 3-4 & n.6 (stating that under article III, sections 51 

and 52, a school district's payment to a municipality must serve the public purpose of the district); MW -373 (1981) at 

9 (determining that "[a]rticle III, section 51 of the constitution requires that a grant [of office space] by the university 

to the foundation must serve a public purpose, appropriate to thefunction ofa university" (emphasis added»; JM-1255 

(1990) at 3,9-10 (municipal bond resources cannot be used to assist a school district to acquire a school building without 

a direct municipal purpose other than the incidental economic benefit to the community). 

3you also ask whether, "in any case," TSU may grant by gift the two parcels ofland containing the graves that 

were appraised as having zero value and note that the University would incur substantial costs to make such property 

marketable. Request Letter at 3. The special characteristics of the property are factors the Board might consider in 

determining the adequacy of the consideration or whether the transaction would serve a University purpose. Cf Tex. 

Att'y Gen. Op. No. DM-268 (1993) at 2-3 (noting that an agreement to donate to a charity the county-owned personalty 

that is of no use or resale value to the county, thereby relieving the county of transportation and disposal costs, might 

serve a public purpose and constitute adequate consideration in accordance with article III, section 52). 
Mr. Andrew C. Hughey - Page 4 (GA-0894) 

SUMMARY 

Article ill, sections 51 and 52 of the Texas Constitution would 

not prohibit Texas Southern University from conveying real property 

to a private entity in exchange for historical papers or a right of access 

to property, provided such papers or access rights constitute adequate 

consideration for the real property. Whether the papers or rights 

constitute adequate consideration is a matter for the University's 

governing board to determine in the first instance. 

Texas Southern University may not grant real property by gift 

to a private corporation except to serve an authorized purpose of the 

University. 

DANIEL T. HODGE 

First Assistant Attorney General 

DAVID J. SCHENCK 

Deputy Attorney General for Legal Counsel 

JASON BOATRIGHT 

Chair, Opinion Committee 

William A. Hill 

Very truly yours, 

Assistant Attorney General, Opinion Committee