.Honorable D. C.Greer Opinion No. C-434

State'Highway Engineer Texas Highway Department Re: Whether the StateHighway Austin, Texas Commission, under the authority granted by Article 66738, V.C.S., can legally sell surplus land and improvements directly to the City of Lamesa for the established value without advertising andwithout requesting sealedbid8 from the general Dear Mr.

### Greer: public under the Pacts statea. This is in reply toyour letter requesting an opinion from this office as to %ðer under theprovision8 of Article 6673a, Vernon's CivzU Statutes, the State Highway CammiSSiOn can legally sell certain surplus land and improvements directly.to the City of Damesa for the established value of the land ,andimprovements, such a sale tobe without advert%isingandwithout requesting 8ealed bid8 from the general public. According to the fact8 stated,in your letter, the City of Lamesa deeded to the State of Texas certain ground8 in Dawson County for u8e by the Texas Highway Department a8 a maintenance site, without charge to,the State though the deed recited a '$10.00cOn8ideratiOn. youradvised that the State ha8 since placed valuable improvements.

### on'theproperty. The Highway Department has constructed building8 at anew site, leaving the land acquired from the City of Lameaa, and the fmprovements located thereon as surplu8. The pertinent provisions ofArticle 6673a provide:

"Sectionl. Whenever the State Highway' C0@&88iOn determine8 that any real p~roperty, or interesttherein, heretofore or hereafter acquired by the State for highway purposes, is

### no longerneeded for suchpurposes, and in the ca8e of highway right-of-way it has

-2052-, , - -

Honorable D. C.Greer, page 2 (C-434)

further determined that such right-of-way isno longer needed for use of citizens as a road, the State Highway Commission may recommend to the Governor that such land or interest therein be sold, and the Governor may execute aproper deed conveying all the State's rights, title and interest In such land. It shall be theduty of the Commission todetermine the fair and reasonable value of the State's interest in such land and to advise the Governor thereOf. Allmoney derived from such sales shall be deposited i!ithe State Treasury to the credit of the State Highway Fund. Provided further, thatwhere right-of-way property ownedby the State wa8 acquired by a city norcounty and the State Highway Commission determines that said right-of-viayproperty shouldbe sold, suchproperty shallbe sold with the following priorities: "(1) To abutting or adJoining landowners; "(2) To original grantors, heLr8 or .assigns of the original tract fromwhence theright-Of-Way wa8 conveyed; or

“(3) To the general public. "Notice of said sale shallbe advertised at least twenty day8 before the day of sale by having notice thereoS,published in the mllsh IangUage once a week for three consecutiveweeks preceding 8UCh.8ale inanew8- paper In the county inwhich the real e&ate 18 located. Such sale shall bemade on a sealedbid ba8is,'md said land shall not be '8Oldfor less than thevalue recommended by theState Highway Commission a8 provided above.

‘Upon recommendation of the State Highway Ccmmission, theGovernor may execute aproper deed exchanging any such real property, or interest therein, either a8 awhole orpart consideration, for any other real property, or Interest therein needed by the State for high-

- purposes.

-205.3-Honorable D. C. Greer, page 3 (C-434)

"Provided further, thatupon recommendation OS the State Highway Commission the Governor may execute'8 proper deed relinCpiShing and conveying the Statets right, title aud interest in such real property as follows: "(a) IS title.to the State was acquired by donation, convey to thegrantor, his heir8 or assigns; or if acquired by purchase by a county or city, convey to the county or city, or to the grantor, his heirs or assigns at the request of the county or city."
It.18 the opinion of this office that under the facts stated inyour'letter the State Highway Commission can, under the authority granted by Article 6673a, legally sell the surplus land aud Improvements directly to the City of Lamesa for,the established value~of the land and improvements. The statute clearly provides the authority in such an.instance cited in your letter. We callyour attention to the last two paragraphs ofArticle ,6673aabove quoted, to the effect that upon reconssendationof the State Highway Commission theGovernor ,mayexecute aproper deed comeylng the State's intereat in such real property if title to the State wa8 acquired by donation, convey to the grantor.and if acquired by purchase by a county or city,,convey to the'county or city, or to thegrantor, at the request of the~county or city. In the first paragraph OS tRi8 statute it is provided that "it shallbe the duty of the Commission todeters&e the fair and reasonable value OS the State's interest in,such land and toadvise the Governor thereof."

we donot thi.I&that in an in8taXEe Such a8 th%S the statute require8 notice of the sale to be advertised Qr that sealedbid8 be requested from the general public.
The ca8e of El Paso County v. City of El Paso, 357 .S.W.2d 783 (Tex.Civ.App. 19621, sets forth certain reasoning which We thinkwould apply in this in8tauoe, that 3.8:

'We think the statutes hereinabove referred to do apply wherever apolitical SUbdiViSiOn, subject t0 8uCh 8tatute8, desire8 t0dispose of any of it8 public~land to an .individualor private agency, but not where such political SUbdiViSiOn with thepower of eminent domain

-2054-Honorable D. CL ,Greer,page 4 (C-434)

and condemnation chooses todealwith it8 opposite number and reach anagreement as to the change ofpublic use, rather than to resort to the expensive and tedious medium of litigating the entirematter through the courts, thereby holding up thepublic benefit and depleting to some extent the tax funds of the subdivisions involved." While the statutes referred to in the El Paso case above areArticle 1577 andArticle 6m8a, thmiple that a valid sale canbe effected between the State and political subdivisions without advertising and requesting sealed bids frownthegeneral.public is amply upheld.

District v. &en&an, 164 S.W.: .___~~ error ref.w.o.m.), we think applies in&i Syllabus tw0 in that Ca8e states: The reasoning OS the Court in
.8iIl8tanCe.

"Where landwas CO&eyed to a city for '.parkpurposes restricting building thereon to the erection of aband etand, andwa8 later conveyed to 8chOOl district, and city's grantor had waived reversion right8 and city and school authoritier,had agreed upon u8e of theproperty for school purposes a8 theparamount public 088, condemnation proceeding was unnecessary. Vernon*8 Ann.Civ.St. art. 11Ggc."
&I thekingsville Independent School District case above, the court said:

"The city, .aotingthrough, itsmayor and co113i88ioner8,ha8 decided that thepark would be serving abetter public use if abandoned as a.park~and converted to school ~OSe8. Under 8Uch CirCWWtanCe8 there i8 no occaeion to litigate the question a8 to theparamount public use of the property." The court in the kingsville ca8e further stated:

"Applying the same rule here, if theCity and the School District can agree upon the paramount public u8e of theproperty, why should theybe compelled to institute condemnation proceedings?'-2055-Honorable D. C. Greer, page 

### 5 (C-434)

We realize, of course,~thatthenecessity of condemnation proceeding8 was in question in the K of 'asalewithout advertising andw?&%$%$u::"tz:::;:d bids from the general public as in this instance, but the authority of ~theCity and the School District toagree upon the paramount public use of the property as upheld by the Court, is applicable here.
In the case of El Paso County v. ,Cityof El Paso, supra, the court said:
u Inneither opinion city of Tyler v..~. &&h'County,~l51 Tex. 

### 80;.246 S.W.2d 

### 601, -: and Kingsville Inde enaent School District v. Crenshaw, supra doe8 the Supreme Court or the Court of 3? Cvi1 Appeal8 mention or refer to thenecessity of complying with Article 

### I.577 orArticle 

### 60788 of the Texas statutes. We think this 18probably,true because Article 1

use orbenefit. It is difficult to compredwhy ithe; the Legls.lature through A%cle i&7, br.any court, wouid require the county to sell land atpublic auction when SUCh land i8 impressed with a public use or trust.~. . ." (EknphasisAdded.) Thisland wa8 deeded to the State of Texas foru8e by the Texas Highway Department and is State property over which the State has-full control and authority.

'In the absence of constitutional restrictions, the State may sell and di8pO8e of its property on it8 own term8 and conditions. And legislative enactment8 usually govern the manner inwhich~state land8may be disposed of." 52 Tex.Jur.2d 739, State of Texas, Sec. 

### 28. Article 66na sets forth themanner inwhich 'theland and improvements.in question may be sold. You are therefore advised that the State Highway Commission can legally sell

-2056-. . . .

Honorable D. C. Creer, page 6 (C-434)

the surplus land and improvements described inyour letter, to the City of Lamesa for theestablished value without advertising and kithout requesting general public.

SUMMARY sealed bids from the

The?State Highway Commis8ion under the authority granted byArticle 6673a, V.C.S., can legally sell the surplus land and improvements in this instance directly to the City of Damesa‘for the established value of the land and improvement8 without advertising andwithout requesting sealed bid8 from the general public.
YOU'S very truly,
WAGGONER &RR Attorney General of Texas

Den M. Harrison A8sistatlt Bwirasg
APPkVELk
OPINIOIVcoz&MTE!J
W. V. Geppert, 

### ahaim Arthur Sandlin Paul Phy James strock MiltOn RiChardSOn APPROVED~ORTHEA~OMEYGElqERAL By: Stanton Stone

-2057-