# 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 ofEducation Texas Education Agency 201East Eleventh Street Austin, Texas 78701

Dear Dr. Edgar: Opinion No. H- 93 Re: May the El Campo school

district pursuant toan agreement with the City ofEl Campo, transfer title to school-owned surplus ,land, by negotiation for the considtration ofimprovements and usage -- without the necessity ofa cash con- ~sideration offered ata public bidding7 Your ,request for an opinion ofthis office asks whether the El Campo School District may ~transfer title to 30 acres of surplus land tothe City of El Campo without the necessity ofcompetitive 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 ofthe District may use at all times. The City is anxious to obtain the land and develop it as apart ofits master park system in El Campo. You state that the agreement, ifwithin the district’s authority, will be ofbenefit tothe school and the community. Trustees ofthe El Campo Independent School District are generally vested with wide powers of management and control of real and personal property ofthe district. Section 23.26 Texas Education Code. Subsection (c) ofthat section states that: “All rights and title to the school property of the district, whether real or personal, shall bevested inthe trustees and their succe.ssors in office.”

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

Ofcourse, as local public corporations, independent school districts through their boards oftrustees may only exercise powers expressly or impliedly granted to them by the Legislature. Love v. City ofDallas, 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, 121S.W. Zd1048 (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 ofthe schools ofthe 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 tobe 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 ofthe governmental units. Article ,6081t, V. T. C.S. The courts will not interfere with the exercise ofthe 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.). Inour ~opinion, the El Campo Independent School District may enter into an agreement with the City ofEl Campo whereby the District obtains the right to require the construction ofand to use recreational facilities to be constructed bythe city to the district’s specifications, in consideration ofthe district’s transferring title to the land to the city for use as apublic park. Compare Attorney General Opinion M-1195 (1972). Section 20.50, Texas Education Code, would limit the contract period to 75years, but Article 6081t author&es similar contracts between governmental units for indefinite periods oftime. Since the Education Code states the board of trustees ofan independent school district shall have the powers and duties

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

described in the Code, inaddition toany other powers and duties granted or imposed by law(s23. 25), the contract may befor an indefinite period pursuant to the provisions ofArticle 6081t. No violation ofArticle 3 552 ofthe Constitution is involved because there is a quid pro quo. Neither governmental unit is making a grant or a loan ofits credit tothe other. See SanAntonio River Authority v. Shepperd, 299 S.W. Zd920 (Tex. 1957). You also ask ifthe school district must accept competitive bids on the sale ofthe land or the contract for the construction anduse 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 ofany 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 apolitical subdivision of the State ofTexas may be sold or exchanged for other land without first publishing in a newspaper ofgeneral circulationin the county where the land is located i
. . a notice that the land is tobe offered for sale or exchange tothe 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 apublic park, recreation area, etc., may be disposed ofby a political subdivision ofthe state, and are not applicable tothe situation you present since the “surplus land” you wish

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

to convey has not (to our knowledge) been designated for any ofthe special purposes towhich those articles apply. Inour opinion, state law does not require competitive bidding in your situation. Although the transaction may fairly be characterized as a
“sale” ofland or as a contract exceeding $1,000 for the construction of facilities used bythe District, it is most reasonably characterized as an agreement reached between two political subdivisions, each having the power ofeminent domain and condemnation, respecting the paramount public use ofland owned by one ofthem. The contract for the construction offacilities by the city for the district’s use is only incidental toand consideration for the transfer ofland tothe city for the paramount public purpose ofproviding 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 tohome rule cities:

“power ,toappropriate private property for public purposes whenever the governing authorities deem ,it necessary. . . . The power ofeminent 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 ofland owned by one ofthem. Kingsville Independent School Dist. v. Crenshaw. 164S.W. 2d49 (Tex. Civ. App., SanAntonio, 1942, err. ref.) ;El Paso County v. City ofEl Paso, 357 S.W. 2d 783 (Tex. Civ.App., El Paso, 1962, nowrit): 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 ofcounty land, said:

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

“We think the statutes herein referred to do apply wherever apolitical subdivision, subject to such statutes, desires to dispose ofany ofits public land to an individual or private agency, butnotwhere such political subdivision with power ofeminent domain and condemnation chooses to deal with its opposite number and reach an agreement as tothe change ofpublic use, rather than to resort to the expensive and tedious medium oflitigating the entire matter through the courts. . . .” (357 S.W. 2dat 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 ofpublic land in an effort to avoid condemnation proceedirigs. Itis therefore our opinion that the agreement you wish to enter into with the City ofEl Campo is within the permissible contractual powers ofthe school district and t-naybe completed without the necessity ofcompetitive bids and without cash consideration. SUMMARY An independent school district is vested with the power ofcontracting 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 ofthe land would be its use as a public park for the benefit ofall the residents. -Very truly yours,

Attorney General ofTexas

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

Opinion Committee

p. 433