THE ATTOIQMEY GENERAL 

0eTEx~s 

JOHN Ia. ElLL 

Arrslw.T~As~ 7Q7ll 

A-ZCNEY as-Ax. 

August 30, 1973 

The Honorable J. W. Edgar 

Commissioner of Education 

Texas Education Agency 

201 East Eleventh Street 

Austin, Texas 78701 

Dear Dr. Edgar: 

Opinion No. H- 93 

Re: May the El Campo school 

district pursuant to an 

agreement with the City 

of El Campo, transfer 

title to school-owned 

surplus ,land, by negotiation for the considtration of improvements 

and usage -- without the 

necessity of a cash con- 

~sideration offered at a 

public bidding 7 

Your ,request for an opinion of this office asks whether the El Campo 

School District may ~transfer title to 30 acres of surplus land to the City of 

El Campo without the necessity of competitive bids and without cash consideration. You state that the School District desires to convey the land in 

exchange for the City’s promise to make $60,000 in recreational improve- 

,ments to the land which ,students of the District may use at all times. The 

City is anxious to obtain the land and develop it as a part of its master 

park system in El Campo. You state that the agreement, if within the 

district’s authority, will be of benefit to the school and the community. 

Trustees of the El Campo Independent School District are generally 

vested with wide powers of management and control of real and personal 

property of the district. Section 23.26 Texas Education Code. Subsection 

(c) of that section states that: 

“All rights and title to the school property of 

the district, whether real or personal, shall be vested 

in the trustees and their succe.ssors in office.” 

p. 428 
The Honorable J. W. Edgar, page 2 (H-93) 

Of course, as local public corporations, independent school districts 

through their boards of trustees may only exercise powers expressly or 

impliedly granted to them by the Legislature. Love v. City of Dallas, 40 

S. W. 2d 20 (Tex. 1931); Foster v. City of Waco, 255 S. W. 1104 (Tex.1923). 

No school district may make a contract that is not expressly authorized 

by law or necessarily implied from powers expressly granted. McCorkel 

v. District Trustees, 121 S. W. Zd 1048 (Tex. Civ. App., Eastland, 1938, no 

writ). 

Among the powers the Legislature has expressly granted to independent school districts are the exclusive management and control of the schools 

of the district [$23.26(b), Texas Education Code], including the power to 

sell any~property of the district. Sections 23.29, 23.30, Texas Education 

Code. The contractual rights to be obtained here constitute “more convenient and more desirable school property” within the meaning of $23. 30(c), 

in our opinion. 

The board of trustees may also contract to improve or acquire gym-~ 

nasia, stadia, or other recreational facilities ($20.21. Texas,Education 

Code), or may, by agreement establish, provide, maintain, construct and 

operate jointly with another governmental unit. . . playgrounds, recreation 

centers, athletic fields, swimming pools, and other parks and recreational 

facilities located on property now owned or subsequently acquired by either 

of the governmental units. Article ,6081t, V. T. C.S. The courts will not 

interfere with the exercise of the board’s authority unless a clear abuse of 

power and discretion is made to appear. Kissick v. Garland Independent 

School District, 330 S. W. 2d 708 (Tex. Civ.App., Dallas, 1959, err. ref.). 

In our ~opinion, the El Campo Independent School District may enter 

into an agreement with the City of El Campo whereby the District obtains 

the right to require the construction of and to use recreational facilities to 

be constructed by the city to the district’s specifications, in consideration 

of the district’s transferring title to the land to the city for use as a public 

park. Compare Attorney General Opinion M-1195 (1972). Section 20.50, 

Texas Education Code, would limit the contract period to 75 years, but 

Article 6081t author&es similar contracts between governmental units for 

indefinite periods of time. Since the Education Code states the board of 

trustees of an independent school district shall have the powers and duties 

p. 429 
The Honorable J. W. Edgar, page 3 (H-93) 

described in the Code, in addition to any other powers and duties granted 

or imposed by law(s23. 25), the contract may be for an indefinite period 

pursuant to the provisions of Article 6081t. 

No violation of Article 3 5 52 of the Constitution is involved because 

there is a quid pro quo. Neither governmental unit is making a grant or 

a loan of its credit to the other. See San Antonio River Authority v. 

Shepperd, 299 S. W. Zd 920 (Tex. 1957). 

You also ask if the school district must accept competitive bids 

on the sale of the land or the contract for the construction and use of recreational facilities to be used by the district. 

“All contracts proposed to be made by any 

Texas public school board for the construction, 

maintenance, repair or renovation of any building 

. . . shall be submitted to competitive bidding 

when said contracts involve $1,000 or more. ” 

Section 21.901(b) Texas Education Code. 

Similarly, the Legislature has generally required that: 

“No land owned by a political subdivision of 

the State of Texas may be sold or exchanged for 

other land without first publishing in a newspaper 

of general circulationin the county where the land 

is located i . . a notice that the land is to be 

offered for sale or exchange to the general public, 

its description, its location and the procedures 

under which sealed bids to purchase the land or 

offers to trade for the land may be submitted. ” 

Article 5421c-12. V. T. C.S., as amended in H.B. 

40, 63rd Leg., 1973. 

Articles 54219 and 1019, V. T. C. S., requiri special procedures 

before land designated or utilized as a public park, recreation area, etc., 

may be disposed of by a political subdivision of the state, and are not 

applicable to the situation you present since the “surplus land” you wish 

p. 430 
The Honorable J. W. Edgar, page 4 (H-93) 

to convey has not (to our knowledge) been designated for any of the special 

purposes to which those articles apply. 

In our opinion, state law does not require competitive bidding in 

your situation. Although the transaction may fairly be characterized as a 

“sale” of land or as a contract exceeding $1,000 for the construction of 

facilities used by the District, it is most reasonably characterized as an 

agreement reached between two political subdivisions, each having the 

power of eminent domain and condemnation, respecting the paramount 

public use of land owned by one of them. The contract for the construction 

of facilities by the city for the district’s use is only incidental to and consideration for the transfer of land to the city for the paramount public 

purpose of providing adequate park facilities to.city residents. 

The Legislature has expressly authorized home rule cities to condemn both private and ,public property. Article 1175(15), V. T. C. S., grants 

to home rule cities: 

“power ,to appropriate private property for public 

purposes whenever the governing authorities deem 

,it necessary. . . . The power of eminent domain 

hereby conferred shall include the right. . . to 

condemn public property for such purposes. ” 

(emphasis added) 

Our courts have held that political subdivisions having the power of 

eminent domain and condemnation may avoid those expensive proceedings 

when they agree.among themselves as to the paramount public use of land 

owned by one of them. Kingsville Independent School Dist. v. Crenshaw. 

164 S. W. 2d 49 (Tex. Civ. App., San Antonio, 1942, err. ref.) ; El Paso 

County v. City of El Paso, 357 S. W. 2d 783 (Tex. Civ.App., El Paso, 1962, 

no writ): City of Tyler v. Smith County, 246 S. W. 2d 601, (Tex. 1952). 

The court in El Paso County v. City of El Paso, supra., noting that 

Articles 1577 and 6078a set out notice and competitive bidding procedures 

for the sale of county land, said: 

p. 431 
The Honorable J. W. Edgar, page 5 (H-93) 

“We think the statutes herein referred to do 

apply wherever a political subdivision, subject to 

such statutes, desires to dispose of any of its public 

land to an individual or private agency, but not where 

such political subdivision with power of eminent 

domain and condemnation chooses to deal with its 

opposite number and reach an agreement as to the 

change of public use, rather than to resort to the 

expensive and tedious medium of litigating the entire 

matter through the courts. . . .” (357 S. W. 2d at 787) 

We believe the statutes requiring competitive bidding procedures 

when land is sold by a political subdivision of the state do not apply to 

a situation in which one political subdivision is negotiating with another 

about the paramount public use of public land in an effort to avoid condemnation proceedirigs. 

It is therefore our opinion that the agreement you wish to enter 

into with the City of El Campo is within the permissible contractual 

powers of the school district and t-nay be completed without the necessity 

of competitive bids and without cash consideration. 

SUMMARY 

An independent school district is vested with 

the power of contracting with a city for construction 

and use of recreational facilities to be used by the 

district and in exchange therefor may convey title 

to surplus school land to the city if both agree that 

the paramount public use of the land would be its 

use as a public park for the benefit of all the residents. 

-Very truly yours, 

Attorney General of Texas 

p. 432 
The Honorable J. W. Edgar, page 6 (H-93) 

Opinion Committee 

p. 433