DAN MORALES 

ATTORNEY GENERAL 

QBffice of tfie 2Mornep QSeneral 

%5tate of tEeme 

May 20, 1997 

The Honorable Bill Radii 

chair, Fiinance ckmmittee 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 7871 l-2068 

Opinion No. DM4t 1 

Be: Whether the City of Longview is authorized 

to transfercity-owned property to the University 

of Texas for the purpose of establishing a 

university campus (RQ-922) 

Dear Senator Ratliff: 

You ask whether the City of Longview (the “city’) is authorized to transfer city-owned 

property to the Univemhy of Texas System (WY) for the purpose of establishing a UT campus. We 

understand that in a 1979 bond election, the voters of the city approved a proposition authorizing a 

bad issuance for the pumhase of land for parks. The city purchased the forty-eight acre site at issue 

in 1985 with bond proceeds. In May 1994, the city held a bond election which included a proposition 

fbrabondismance to improve the site as a park The voters defeated the proposition. At this time, 

the property is undeveloped and has never been designated or used as a park by the city. The city 

does not have the funds to improve the site as a park. 

First, you ask about section 253.001 of the Local Government Code, which requires the 

governing body of a municipality to obtain the approval of the voters before selling land owned, held, 

or claimed as a public park This office addressed section 253.001 at length in Attorney General 

Opinion DM-232. In that opinion, we concluded, based on case law and prior attorney general 

opinions, that a city need not comply with section 253.001 in order to transfer property to another 

governmental agency having the power of eminent domain if the city and the governmental agency 

are in accord regarding the paramount public use of the property. See Attorney General Opinion 

DM-232 (1993) at 2 (citing ElPuw County v. City of ElPaso, 357 S.W.2d 783 (Tex. Civ. App.-El 

Paso 1962, no writ);K@svi~le Inakp. Sch. Did v. Crenshaw, 164 S.W.2d 49 (Tex. Civ. App.-San 

Antonio 1942, writ ref d w.o.m.); Attorney General Opinions H-1256 (1978), H-108 (1973)). The 

UT board of regents has the power of eminent domain to acquire land that may be necessary and 

proper for UT purposes. See Educ. Code $65.31(a). Therefore, we conclude on the basis of 

Attorney General Opinion DM-232 and the authorities discus& in that opinion that the city need not 

adhere to the procedures set forth in section 253.001 in order to convey the site to UT ifthe city and 

UT agree that use of the property as a university campus is the paramount public use of the property. 

Whether use of the property as a university campus is the paramount public use is a question of fact 

and is therefore beyond the purview of an attorney general opinion. 

We limit the foregoing conclusion with two caveats. First, we note that our analysis of the 

application of section 253.001 assumes that UT has the authority to condemn the property. 
The Honorable Bill Radii - Page 2 (DM-441) 

Education Code section 65.31(a) does not expressly authorize UT to condemn property already 

devoted to a public use. Case law suggests that the authority to condemn property already devoted 

to a public use will not be implied when the condemnation will destroy the use to which the property 

has been devoted. See Ausiiin I&p. Sch. Dist. v. Sierra Club, 495 S.W.2d 878,882 (Tex. 1973) 

(citing Sabine &E i? Ry. Co. v. Gulf& I. Ry. Co., 46 S.W. 784 (Tex. 1898)). “The power will be 

implied, however, where the necessity is so great as to make the new enterprise of paramount 

importance to the public and it cannot be practically accomplishd in any other way.” Id We believe 

UT would be well advised to make such tindings, prior to entering into an agreement with the city 

regarding the paramount use of the property, in order to establish its authority to condemn the 

property. Ofcourse, the ultimate determmation whether the necessity to establish a UT campus in 

Longview is of paramount public importance and the campus cannot be practically accomplished in 

any other way involves questions of fact. 

We also note that unlike the park land at issue in Attorney General Opinion DM-232 and the 

authorities cited there, the site at issue here was purchased with bond proceeds. It is a wellestablished principle that when the electorate has approved bonds for a particular purpose, the 

goveming body that issued the bonds czumot arbitrarily decide to use the bond proceeds for another 

purpose. Hudson v. &m Antonio Indep. Sch Dist., 95 S.W.2d 673 (Fax. 1936); see also Bkzck v. 

i%ken@, 246 S.W. 79, SO-81 (Tex. 1922) (order calling bond election and establishing purpose for 

which bond pmceeds will be used is contract with voters).’ In the context of a dispute regarding the 

sale of mineral rights on land purchased by the Cii of Beaumont for an airport with bond proceeds, 

the Texas Supreme Court articulated the following principle: 

Smce the city had acqukd the land with the proceeds of municipal bonds 

which had been voted and issued for the purpose of acquiring an airport, the 

land thus purrhad became dedicated to that purposeand the land could not 

beusedforanyotherpurpose~~wouldinterferewithitsuseasanairport 

until such use in whole or in part was lawfully abandoned by the city. 

City of Beaumont v. Moore, 202 S.W.2d 448,452 (Tex 1947). A governmental agency that has 

called abond election and thereat&r obtained bond proceeds dedicated to a partiatlar purpose may 

abandon a project only if conditions have so materially changed that proceeding with the project 

would be unwise and mm-. Hudwrr, 95 S.W.2d at 675. In addition, article 1015c, which 

authorizes a city to purchase, mortgage, and encumber various kinds of projects including parks, 

V.T.C.S. art. 1015c, 5 1, provides that no project under section 1 ofthe article”shall ever be sold 

until such sale is authorized by a majority vote of the qualitkd voters of such city or to-” id. 3 2; 

see alsoMcCoy v. Williams, 500 S.W.2d 178, 180-81 (Tex. App.-El Paso 1973, writ refd er.e.) 

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The Honorable Bill Rathff - Page 3 (DM-441) 

(suggesting that election requirement applies to any city park, not just one created under section 1 

of article 1015c).s 

Although the tkct that the city obtained the site at issue with bond proceeds limits the 

authority of the city to use the land for other, non-park purposes, the relevant question here is 

whether this fact imposes a limitation on the authority of UT to condemn the land. This appears to 

be a question of tirst impremion. On the one hand, a court might conclude that because the land was 

par&ad with park bond proceeds, the city may not enter into an agreement with UT that another 

purpose is the paramount public use, thus excepting the conv~ce Tom Local Government Code 

section 253.001, until it has discharged its commitment to the voters. On the other hand, a court 

might conclude that the reasoning of the cases and attomey general opinions addressing the strictures 

of section 253.001 and its statutory predecessor is equally applicable to bond election-related 

strictures: “[G]oveming bodies with the power of eminent domain need not secure the consent of 

an electorate to obtain property they need for public purposes. _ . . What [a county] might do by 

resort to condemnation proceedings, it can do by agreement with. . . [a city].” Attorney General 

Opiion H-1256 (1978) at 2 (citations omitted). 

Uader~latter~~~aoourt~~concludethatthefadthatthecitypurchasedtheland 

at issue with bond Smds does not atlbct the authority of UT to condemn the land and that what UT 

can do through condemnation pmceedings it should be able to do by agreement with the city. 

Because tha questioti whether the bond elecrion-related lint&ions on the authority of the city to use 

the land for other, non-park purposes affects the authority of UT to condemn the land appears to be 

one of tirst impmssion, however, the city would be well advised to take steps to lawlttlly abandon use 

of the land as a park prior to entering into an agreement with UT that use of the property as a UT 

campus is the paramount public use.’ The fhctual determhmtion that conditions have so materially 

changed since the 1979 bond election that use of the property as a park would be unwise and 

unnecessary must be made by the governing body of the city in the tirst instance and is beyond the 

purview of an attorney general opinion. 

You also ask about article III, section 52 of the Texas Constitution, which prohibits the city 

from granting “public money or thing of value” and requires that the city obtain adequate 

consideration when conveying public property, and section 272.001 of the Local Government code, 

which generally requires certain political subdivisions, including cities, to sell land by a sealed bid 

procedure at&r public notice. Local Gov’t Code 8 272.001(a). These notice and bidding 

requirements do not apply, however, if real property is conveyed to a governmental entity that has 

the power of eminent domain. Id. 3 272.001(b)(5). Subsection (b) of section 272.001 provides that 

P. 2467 
The Honorable Bi Ratliff - Page 4 (DM-44 1) 

realpropertymaybewnveyedtoagovemmgdal entity that has the power of eminent domain under 

this exception at not less than fair market value as “determined by an appraisal obtained by the 

political &division that owns the land,” or, in the case of land owned by a hom*mle municipality, 

by the price obtained at public auction Id. 5 272.001(b). Here, the city is authorized to convey the 

property to UT, a governmental entity that has the power of eminent domain, at not less than fair 

market value. 

A~~submittedbythecitystatesthatthecitycsnmalreafindingthatawmmitmentbyUT 

“to establish and wnstruct a localiwd campus on the property would wnstitute sutlicient 

consideration equivalent to the fair market value of the property.” The city contends that if such a 

~canbemade,wcashwnsiderationforthelaadisrequired,citingAttornqrGeaeralOpinions 

H-1256 and H-108. We agree that such a GnIing would satisfy the dictates of article III, section 52 

under the rationale of those opinions.’ We are not wnviwed, however, that subsection (b) of section 

272.001 authorizes a city to transfer real property to a governmental entity that has the power of 

eminent domain for the hind of consideration contemplated here. 

As noted in Attorney General OpinionDM-232, the provisions of section 272.001 that permit 

a political &division to convey teal property to a governmental entity that has the power of eminent 

domain without complying with its notice and bidding requirements but at not leas than fair market 

value date 6om 1985,5 some years atIer this office issued Attorney General Opinions H-1256 and 

H-108. In Attornq General Opiion DM-232, the City of Hereford indiaed that it would tind the 

paramount public use of the property to be the expansion of the hospital district and would wnvey 

the property to the hospital district for no cash consideration. We concluded that the city was not 

authorized to transfer the land to the hospital district for less than fair market value, suggesting that 

the indeterminate, nomnonetary consideration in the proposed transaction was impermissible. We 

wntinue to believe that suggestion is correct. 

The term ‘Sir market value’ is not de&d for purposes of section 272.001 and we detine it 

according to its common usage. Gov’t Code Q 311.011 (Code Construction Act). “Fair market 

value” is generally defined as the price that a willing buyer, who desires to buy, but is under no 

obligation to buy, would pay to a willing seller, who desires to sell, but is under no obligation to sell. 

CityofParkmdv. Akmmk, 483~ S.W.2d 244,247 (Tex. 1972); Atterbwy v. Brimn, 871 S.W.2d 

824,828 (Tex. App.-Texarkaw 1994, writ denied). We also note that the measure of damages in 

an eminent domain pmceeding where an entire tract or parcel of land is condemned is “local market 

value.” Prop. Code 5 21.042(b). Cases wnshuing this provision indicate that “market value” mews 

a &ad, asc&ai&le sum. MeItm v. We, 395 S.W.2d 426,429 (Tex. Civ. App.-Tyler, 1965, writ 

P- 2468 
The Honorable Bill Ratliff - Page 5 (DM-441) 

refd, n.r.e.) (“Market value should be based upon reasonable cash value.“); Houston V. Chmpoit, 292 

S.W.2d 677, 680-81 (Tex. Civ. App.-Galveston 1956, writ refd n.r.e.) (market value may be 

determined on basis of credit tmmaction, rather than on cash price of land). 

In wnclusion, thir market value is generally understood to mean a 8x4, ascertainable sum. 

&cause section 272.001 is intended “to ensure that public lands will be disposed of in a manner that 

will iidly protect the citizemy,” exceptions to its notice and bidding requirements, such as the 

exception pwnhdng a political subdivision to convey real property to a governmental entity with the 

power of eminent domain without notice and bidding but at not less than fhir market value, must be 

narmwlyread. Ci~ojBalbv. McKiman, 726 S.W.2d 173, 176-77 (Tex App.-Dallas 1987, writ 

ref d n.r.e.). We do not believe that a wmmitment by UT “to establish and wnstruct a locahzed 

campus on the property” wnstitutes the kind of specific, ascertainable consideration required by 

section 272.001(b). As noted above, however, we believe that the proposed tinding regarding 

consideration would satisfy the dictates of article JII, section 52. For this reason, there does not 

appear to be any wnstitutional obstacle to amending legislation that would permit a city to convey 

real property to UT for such consideration. 

Finally, you ask about Parks and Wd& Code section 26.001(a), which provides that a 

municipaJity must comply with certain requhements before “approv@tg] any program or project that 

requires the use or taking of any public land designated wrd used prior to the arrangement of the 

program or project as a park.” (Emphasis added.) You inform us that the site at issue has not been 

used as a park. Therefore, we conclude that section 26.001 of the Parks and Wildlife Code is 

inapplicable. 

p. 2469 
The Honorable Bi RatlilT - Page 6 (DM-441) 

SUMMARY 

The Cii of Longview need not comply with Local Government Code 

section 253.001 in order to convey city-owned park land to the University of 

Texas System (“UT”), a governmental entity with the power of eminent 

domain,amumingthepartiestot.he tmmaction take certain actions. The city 

andUTmust~thatuseofthepropertyasauniversitycampusisthe 

paramount public use of the property. In addition, in order to establish its 

author@ to wndemn land already dedicated to a public t&UT should make 

a finding that the necessity to establish a UT campus in Longview is of 

paramount public importance and the campus cannot be practically 

awomplished in any other way. Furthermore, because the park land was 

pur&sed with bond proceeds, the city should also consider limitations on its 

authority resulting from the underlying bond election and, at the very 

minimum, take steps to abandon the bond project. 

Local Government Code section 272.001(b) authorizes the city to wnvey 

the property to UT without complying with notice and bidding requirements, 

butatnotlessthanthirmadc@vaIue. AwmmitmentbyUT“toestablishand 

wnstmct a locaked campus on the property” would satis@ the dictates of 

article IJI, section 52 of the Texas Constitution, but does not wnstitute the 

kiod of&d, amermh&le wnsideration required by section 272.001(b). The 

city need not comply with Parks and Wddlife Code section 26.001 in order to 

wnvey an undeveloped tract purchased for but never used as a city park. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assiit Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Mary R Grouter 

Ass&ant Attorney General 

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