Attorney General Opinion JM-0394

P JIM MAlTOX Attorney General Supreme Court Bullding P. 0. BOX 12548 Austin, TX. 78711. 2543 51214752501 Telex 9101874.1387 Telecopier 512/475G?SS 714 Jackson, Suite 700 Dallas. TX. 752024509 214!742@44 0824 Alberta Ave.. Suite 160 El Paso, TX. 799052793 91515333484 1001 Texas. Suite 700 Houston, TX. 77002.3111 71312215888 808 Broadway, Suite 312 Lubbock, TX. 79401.3479 8081747.5238 4309 N. Tenth, Suite B McAllen, TX. 78501.1885 51218824547 200 MaIn Plaza, suite 400 San Antonio, TX. 782052797 512R25.4191 An Equal Opportunltyl Afflrmatlve Action Employer The Attorney General of Texas Declnaber 19, 1985 Mr. Ralph Lovenflc!ld Chairman Board of Regents TSTI System P. 0. Box 1308 Waco, Texas 767K Opinion No. JM-394 Re: Whether Texas State Techn Institute may acquire land the city of Harlingen under cer circumstances Dear Mr. Lowenf ie1.d;: You requested an opinion relating to the acquisition of land the city of Harlingen by the state for use by Texas State Techn Institute [hereinsfter TSTI] in vocational and technical education You advise US that, in 1968, the city of Rarlingen adopte ordinance calling Zen election of the voters to approve or disapp authority of the city commission to convey all or part of appr mately 118 acres zw "determined advisable by the city commission, time to time," for the restrictive purpose of establishing operating a vocat:lonal and technical training institute and w reversion of the title in the event of a breach of the restrict Earllngen, Ordimlca No. 68-11 (May 16, 1968). In 1968, the vot approved such a c,anveyance of the land and improvements in the d cribed area, which constitutes a total of 118.6 acres at the Harli Industrial Air Park (formerly the United States government's Harli Air Force Base). Also in 1968, the city of Harlingen conv approximately 22 acres to the Lover Rio Grande Valley Develop Council for the e:3tablishment of a vocational skills training cen Aftar the legisla,ture created TSTI in 1969 with a board of reg authorized to accc!rlt, in the name of the state, the conveyance of and facilities in Cameron County and Potter County, the 22 acres w transferred to the state for use by TSTI. See Acts 1969, 61st Le ch. 179, at 515. TSTI continuously has occusd, developed, and u the property as provided by chapter 135 of the Texas Education C Since the original conveyance, 'the city from time to time transferred to the state of Texas other tracts of land from original 118 acres for the continued growth and development of vocational and technical school operated there by TSTI. You ask the mllowing: 1. 1:s the election vhich was held on the 11th day of June, 1968, as set forth in the Ordinance identified as 68-11, valid in the following respectr;: Mr. Ralph Lowenfield - Page 2 (JM-394) a. Does it define the adequate considera- tion for the c,ity of Rarlingen to transfer the property to the state of Texas? b. Is this an offer to any legal entity, including the state of Texas, which, once accepted by the erection of buildings and the training of students in compliance with the ordinance, corstitutes an offer and acceptance and binding contract? c. Are the subsequent transfers of fee simple, of the title to the state of Texas of tracts of land within the area described in the Ordinance (6lkll). a ratification of the Ordinance? d. Is the Ordinance (68-11). approved by the voters of Rarlingen, still in full force and effect and binding upon the present and future city ctmsrlssions? e. Does th,e city of Rarlingen hold the title to the remaining property yet to be conveyed to.the state of Texas in tmst for and in behalf of the state of Texas? f. Does the city of Flarliugen, in order to rescind the Ordinance approved by the voters In 1968, requim an election called for the purpose of rescinding the vote? Are ary future conveyances subject to the'provisions of article 542lc-12, V.T.C.S., or can the ps.rties continue to rely upon the previously approved Ordinance? 2. Does Texas estate Technical Institute as an agency of the state of Texas have the authority of eminent domain :Ln the counties identified in chapter 135 of the Education Code wherein it specifies its authority to acquire title to property? 3. May the city of Rarlingen donate and convey a tract of land to the state of Texas for use in building and operating a state vocational and technical inatitu,te? p. 1803 Mr. Ralph Lowenfield - Page 3 (JM-394) 4. If the cl.t:y may make a donation to the state of Texas. once public hearings are held under the provisj,an of article 54214, V.T.C.S., is it then binding csn. future city officials? These questions are so intizrtwined with issues of fact that we cannot properly address them here in a comprehensive manner. Rawever, we will attempt to offer some general guidance regarding the strictly legal issues involved. Th: information provided here is not intended to affirm the validity of any particular contract. The value of the benefits to the city, whether such benefits furnish adequate consider- ation for the transaction, and whether such benefits would be deemed to be not less than the fair market value of the property in question, are fact questions that we cannot answer. The city of Harlingen, as a home rule city, has all the power not denied to it by the constitution and statutes of the state. However, the charter of a home rule city and ordinances passed pursuant to its charter authority cannot contain provisions inconsistent with the Texas Constitution or nenere.1 laws of the state. Tex. Const. art. XI. 55; V.T.C.S. art. 1165; City of Nassau Bay v. City of Webster, 600 S.W.2d 905, 910 (Tex. I%: App. - Bouston [lst Dist.] 1980). writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex. 1980); Royer v. RitK 531 S.W.2d 448, 450 (Tex. Civ. APP. - Beaumont 1975, writ ref'd n.r.e) and cases cited therein; Attorney-General Opinion M-1232 (1972). Wbei the legislature enacts a statute in conflict with a prior city ordinance, the city ordialnce is rendered ineffective except as to certain vested rights. See Deacon v. City of Euless, 405 S.W.Zd 59, ",;v.'T;;* 1_'6;;;s,g++$4;~f iy;.',4y* 'I'd ,gz; v. City of Euless, the Ilexas Supreme Court pointed out that the Legislature cannot, by retmactive legislation applicable to municipal corporations, destroy or impair vested rights which persons have acquired in their relationships with the municipal corporations, but municipal corporations do not acquire vested rights against the state. 405 S.W.2d at 62. Subsequent to the adoption of the city ordinance in 1968, the legislature enacted a limitation on the power of cities to sell land owned by a city. Article 5421c-12, V.T.C.S., originally enacted in 1969, is a general law gcveming the conveyance of land owned by a political subdivision of the state, whether the land is sold or exchanged for other land, Article 5421c-12 presently provides, in pertinent part, that Section 1. N,J land owned by a political sub- division of the State of Texas may be sold or exchanged for oth'er land without first publishing in a newspaper of general circulation in the county where the land Is located or in an p. 1804 Mr. Ralph Lowenfield - Page 4 (x-l-394) adjoining county, if there is no such newspaper, a notice that the land is to be offered for sale or exchange to the g'aneral 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 su'bmitted. . . . Sec. 2. Bid procedures and publication re- quirements as set forth in Section 1 of this Act shall not be applicable in the sale or disposal of real property in:erests belonging to a political subdivision in the following circumstances: (1) narrow st.rips of land, or land so shaped or so small as to be incapable of being used independently as zoned or under applicable sub- division or other development control ordinances, in which went such land may be sold to the abutting property owner or owners in proportion to their abutting cunership, such division between owners to be made in an equitable manner: (2) streets or alleys, whether owned in fee or used by easement,, in which event such land or interest may be sold to the abutting owner or owners in proportfon to their abutting ownership, such division between owners to be made in an equitable manner; (3) all types, of easements where the abutting property owner 0:: owners also own the underlying fee simple title, in which event such land or interest may be sold to the abutting property owner or owners in proportion to their abutting ownership, such division between owners to be made in an equitable nanner; (4) any land or interest therein which was originally acquked for the purpose of streets, rights-of-way or easements which the political subdivision chooses to trade or exchange as con- sideration for other land acquired for streets, rights-of-way or easements, including transactions which may be partly for cash and partly by trade or exchange; (5) land owned by a political subdivision which it desirer; to have developed by contract with an independent foundation; or p. 1805 Mr. Ralph Loweufleld - Pago 5 (JM-394) (6) any interest in land that is conveyed by a political subdiv,ision to a governmental entity having the power of eminent domain. . . . . Sec. 4. Any conveyance, sale or trade made under the exemptl.cms set forth in Section 2, shall never be for leac: than the fair market value of the land or inxrest being conveyed, sold, or traded, as detenained by an appraisal obtained by the political sabdivision, which shall be con- clusive of the fair market value thereof. V.T.C.S. art. 5421c-12 (set: Acts 1985, 69th Leg., ch. 367, at 2667 for amended 52). -_ Whether the city of Aarlingen and the state of Texas entered into a binding contract in 1968 - and the terms of such a contract, if any - involve complex questions of fact and interpretations of the city's charter and ordinance. We are not equipped to answer such questions in the opinion process. Hbwever , the ability of the state and an agency of the state to enxr into a contract is not unlimited. The Texas Constitution is sileat as to the length of the term for which a contract may be made by ,:he state, but the state nay not enter a contractual relationship that imposes on it an obligation for a period in excess of two years. Article VIII, section 6 of the Texas Constitution provides that oo appropriation nay be made for a period longer than two years. Axicle III, section 49 prohibits the state from creating debts and pr'events contracting on the basis of antici- pated revenues. The state nay enter into an indefinite or long-term binding contract involving, the expenditure of appropriated funds if payment is conditioned or. the availability of appropriated funds. See Attorney General Opinion MW-70 (1979). One session of the legislature cannot bind subsequent sessions or mandate the continued existence of TSTI or its biennial funding. The consideration for and duration of a contract, if any, between the city and the state would be limited to the period during which the legislature continues the operation and funding of t:re Harlingen facility of TSTI. See City of Big Spring V. Board of Ccurtrol, 389 S.W.2d 523 (Tex. Cx App. - Austin 1965), e, 404 !3.W.2d 810 (Tex. 1966) (relating to the validity and terns of a written contract between a city and the state whereby the city furnishes water to a hospital established and operated by the state at the city). The Texas courts have held that numerous statutes prescribing procedures and restrictions on the sale and conveyance of land by political subdivisions are uot applicable when the grantee is another governmental agency having the power of eminent domain over the property involved. Governing bodies with the power of eminent domain p. 1806 Mr. Ralph Lowenfield - Page 6 (JM-394) do not need the cousent of en electorate to obtain property they need for public purposes. Political subdivisions having the power of eminent domain may avoid condemnation proceedings when they agree among themselves as to the paramount public use of land owned by ona of them. See Kingsvllle Independent School District v. Crenshaw, 252 S.W.2d 102nTex. Cl". App.:- San Antonio 1943, writ ref'd) (adopting in full the opinion In KJ.ngsville Independent School District v. Crenshaw, 164 S.W.2d 49 (Tex. Civ. App. - San Antonio 1942, writ ref'd 'm; El Paso County v. Cit of El Paso, 357 S.W.2d 783 (Tex. Civ. APP. "+%ZiZZolton v. City of Waco, 447 - El Paso 1962, no writ . S.W.2d 718 (Tex. Cl". App. .- Waco 1969, writ ref'd n.r.e.); Attorney General Opinions H-1256 (1978); H-108 (1973); H-93 (1973). We conclude, however!, that TSTI does not have the power of eminent domain. The right of eminent domain is the inherent power of the sovereign to take proylarty for public use and welfare, provided adequate compensation is made. See Maberry v. Pedernales Electric Cooperative, Inc., 493 S.V.2d 268-. Civ. App. - Austin 1973, writ ref'd n.r.e.). An aaencv o,r oolitical subdivision of the state has only the power of em&t domain expressly conferred on it by the legislature. See Hall v. \Iilbarger County. 37 S.W.2d 1041 (Tex. Civ. APP. - Amarill~931), aff';i, 55 S.W.2d 797 (Tex. Come'n App. 1932). Section 135.02(c) of the Taras Education Code provides only that the board of TSTI "may accept or acquire by purchase" land and~facilities in three named counties. No statutory provision of which we are aware grants authority to the board of TSTI to acquire property by condemnation. The Sixty-ninth Leg:tslature amended section 2 of article 5421c-12, V.T.C.S., to exempt from the bid procedures and publication requirements of that act "sny interest in land that is conveyed by a political subdivision to o governmental entity having the power of eminent domain." Acts 19815, 69th Leg., ch. 367, at 2668. The facts presented to us indicate that none of the exemptions in section 2 are applicable to the land in question. Section 4 of article 5421c-12 still provides, however, that a conveyance exempt from bid procedures and notice requirements shall not be made for consideration that is less than the fair marks% value of the land or interest being conveyed. Your questions suggezat a need to comply with article 5421q, V.T.C.S. Section 26.001 of the Texas Parks and Wildlife Code (formerly V.T.C.S. art. 1;4.21q) requires notice and a hearing and certain findings before :Land designated or utilized as a "park, recreation area, scientifi: area, wildlife refuge, or historic site" may be disposed of by a muuicipality or other governmental entities. Section 26.001 does not ap?:Ly to the property about which you inquire since that property has not to our knowledge been designated for any of those purposes. See Al:t:orney General Opinions R-108 (1973); E-93 (1973); M-788 (1971). Chapter 26 of the Parks and Wildlife Code, p. 1807 . Mr. Ralph Lowenfield - Page 7 (JM-394) entitled Protection of Public Parks and Recreational Lands, does not define the term "park," bui: we do not believe the term is intended to apply to the Harlingen Industrial Air Park. SUMMARY Article 5+21c-:l2, V.T.C.S., enacted after an ordinance of the city of Harlingen authorized the conveyance of 113 acres for use as a vocational training school and after the conveyance of 22 acres from that tract, limits the power of cities to sell land owna by cities. Subsequent to its original conveyance, the land was transferred to the state for usc by Texas State Technical Insti- tute. Whether the city and TSTI entered a binding contractual relationship prior to article 5421c-12 and, if so, the terms of the contract, involve fact questions aat3 interpretations of the city's charter and ordj,nances that this agency is not equipped to answzc in the opinion process. TSTI has not bean granted the power of eminent domain. The property in question is not subject to the requirements of section 26.001, Texas Parks and Wildlife Code. JACK HIGHTOWER First Assistant Attorney General MARY KELLER Executive Assistant Attorney General ROBERT GRAY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Nancy Sutton Assistant Attorney General Very truly your I 4 1 JIM MATTOX Attorney General of Texas p. 1808