P




                                   The Attorney        General of Texas
                                                 Declnaber
                                                         19, 1985
    JIM MAlTOX
    Attorney General
                                   Mr. Ralph Lovenflc!ld             OpinionNo. JM-394
                                   Chairman
    Supreme Court Bullding         Board of Regents                  Re: Whether Texas State Technical
    P. 0. BOX 12548                TSTI System                       Institute may acquire land from
    Austin, TX. 78711. 2543        P. 0. Box 1308                    the city of Harlingenunder certain
    51214752501                    Waco, Texas 767K                  circumstances
    Telex 9101874.1387
    Telecopier 512/475G?SS
                                   Dear Mr. Lowenfie1.d;:
    714 Jackson, Suite 700              You requestedan opinion relatingto the acquisitionof land from
    Dallas. TX. 752024509          the city of Harlingen by the state for use by Texas State Technical
    214!742@44
                                   Institute [hereinsfterTSTI] in vocationaland technicaleducation.

    0824 Alberta Ave.. Suite 160        You advise US that, in 1968, the city of Rarlingen adopted
    El Paso, TX. 799052793         ordinance calling Zenelection of the voters to approve or disapprove
    91515333484                    authority of the city commissionto convey all or part of approxi-
                                   mately 118 acres zw "determinedadvisableby the city commission,from
    1001 Texas. Suite 700          time to time," for the restrictive purpose of establishing
    Houston, TX. 77002.3111        operating a vocat:lonaland technical training institute and with
    71312215888                    reversion of the title in the event of a breach of the restriction.
                                   Earllngen, Ordimlca No. 68-11 (May 16, 1968). In 1968, the voters
                                   approved such a c,anveyance  of the land and improvementsin the des-
    808 Broadway, Suite 312
    Lubbock, TX. 79401.3479
                                   cribed area, which constitutesa total of 118.6 acres at the Harlingen
    8081747.5238                   IndustrialAir Park (formerlythe United States government'sHarlingen
                                   Air Force Base). Also in 1968, the city of Harlingen conveyed
                                   approximately22 acres to the Lover Rio Grande Valley Development
    4309 N. Tenth, Suite B
    McAllen, TX. 78501.1885
                                   Council for the e:3tablishment of a vocationalskills training center.
    51218824547                    Aftar the legisla,ture  created TSTI in 1969 with a board of regents
                                   authorizedto accc!rlt, in the name of the state, the conveyanceof land
                                   and facilitiesin Cameron County and Potter County, the 22 acres were
    200 MaIn Plaza, suite 400      transferredto the state for use by TSTI. See Acts 1969, 61st Leg.,
    San Antonio, TX. 782052797
                                   ch. 179, at 515. TSTI continuouslyhas occusd, developed,and used
    512R25.4191
                                   the property as provided by chapter 135 of the Texas Education Code.
                                   Since the original conveyance,'the city from time to time
    An Equal Opportunltyl          transferred to the state of Texas other tracts of land from
    Afflrmatlve Action Employer    original 118 acres for the continued growth and developmentof
                                   vocationaland technicalschool operatedthere by TSTI.

                                       You ask the mllowing:

                                                1. 1:sthe electionvhich 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,ityof 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,corstitutesan 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 describedin 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
            conveyedto.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 Ordinanceapprovedby the voters In
            1968, requim an election called for the
            purpose of rescindingthe vote?

                  Are ary future conveyances subject to
            the'provisionsof article 542lc-12, V.T.C.S.,
            or can the ps.rtiescontinue to rely upon the
            previouslyapprovedOrdinance?

            2. Does Texas estateTechnical Instituteas an
         agency of the state of Texas have the authorityof
         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 Rarlingendonate and convey
         a tract of land to the state of Texas for use in
         building and operating a state vocational and
         technicalinatitu,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,anof article 54214, V.T.C.S.,is
           it then binding csn.
                              future city officials?

These questionsare so intizrtwined with issues of fact that we cannot
properly address them here in a comprehensivemanner. Rawever, we
will attempt to offer some general guidance regarding the strictly
legal issues involved. Th: informationprovidedhere is not intended
to affirm the validity of any particularcontract. The value of the
benefits to the city, whether such benefits furnishadequate 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 questionsthat we cannot answer.

     The city of Harlingen,as a home rule city, has all the power not
denied to it by the constitutionand statutesof the state. However,
the charter of a home rule city and ordinancespassed pursuant to its
charter authority cannot contain provisions inconsistentwith the
Texas Constitutionor 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  OpinionM-1232 (1972). Wbei
the  legislature enacts a statute in conflict with a prior city
ordinance, the city ordialnce is rendered ineffectiveexcept 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 IlexasSupreme Court pointed out that the
Legislaturecannot,by retmactive legislationapplicableto municipal
corporations, destroy or impair vested rights which persons have
acquired in their relationshipswith the municipal corporations,but
municipal corporationsdo not acquirevested rights against the state.
405 S.W.2d at 62.

     Subsequent to the adoption of the city ordinance in 1968, the
legislatureenacted a limitationon 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 conveyanceof 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
pertinentpart, that

               Section 1. N,J land owned by a political sub-
            division of the State of Texas may be sold or
            exchanged for oth'erland 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)




         adjoiningcounty, if there is no such newspaper,a
         notice that the land is to be offered for sale or
         exchange to the g'aneralpublic, its description,
         its locationand the proceduresunder 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-
         quirementsas set forth in Section 1 of this Act
         shall not be applicablein the sale or disposalof
         real property in:erestsbelonging to a political
         subdivisionin the followingcircumstances:

            (1) narrow st.ripsof land, or land so shaped
         or so small as to be incapable of being used
         independentlyas zoned or under applicable sub-
         division or other developmentcontrol ordinances,
         in which went such land may be sold to the
         abuttingproperty owner or owners in proportionto
         their abutting cunership, such division between
         owners to be made in an equitablemanner:

            (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 proportfonto their abutting ownership,
         such division between owners to be made in an
         equitablemanner;

            (3) all types,of easementswhere 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 divisionbetween owners to be made
         in an equitablenanner;

            (4) any land or interest therein which was
         originally acquked for the purpose of streets,
         rights-of-way or easements which the political
         subdivisionchooses to trade or exchange as con-
         sideration for other land acquired for streets,
         rights-of-wayor easements,includingtransactions
         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 independentfoundation;or



                               p. 1805
Mr. Ralph Loweufleld- Pago 5 (JM-394)




            (6) any interestin land that is conveyedby a
         political subdiv,isionto a governmental entity
         having the power of eminentdomain.

            . .   . .

            Sec. 4. Any conveyance, sale or trade made
         under the exemptl.cmsset 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 detenainedby an appraisal obtainedby
         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 Aarlingenand the state of Texas entered into
a binding contractin 1968 - and the terms of such a contract,if any
- involve complexquestionsof 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 Constitutionis sileat as to the length of the term for which a
contract may be made by ,:hestate, but the state nay not enter a
contractualrelationshipthat imposes on it an obligationfor a period
in excess of two years. Article VIII, section 6 of the Texas
Constitutionprovides that oo appropriationnay be made for a period
longer than two years. Axicle III, section 49 prohibits the state
from creating debts and pr'eventscontractingon the basis of antici-
pated revenues. The state nay enter into an indefiniteor long-term
binding contract involving,the expenditureof appropriatedfunds if
payment is conditioned or. the availability of appropriated funds.
See Attorney General Opinion MW-70 (1979). One session of the
legislaturecannot bind subsequentsessions or mandate the continued
existenceof TSTI or its biennial funding. The considerationfor and
duration of a contract,if any, between the city and the state would
be limited to the period during which the legislaturecontinues the
operationand funding of t:reHarlingen facilityof TSTI. See City of
Big Spring V. Board of Ccurtrol,389 S.W.2d 523 (Tex. Cx       App. -
Austin 1965), e,       404 !3.W.2d810 (Tex. 1966) (relating to the
validity and terns of a written contractbetween a city and the state
whereby the city furnishes water to a hospital established and
operatedby the state at the city).

    The Texas courts have held that numerous statutes prescribing
procedures and restrictionson the sale and conveyance of land by
political subdivisionsare uot applicablewhen the grantee is another
governmental agency having the power of eminent domain over the
property involved. Governingbodies with the power of eminent domain


                              p. 1806
Mr. Ralph Lowenfield- Page 6 (JM-394)




do not need the cousent of en electorateto obtain property they need
for public purposes. Political subdivisionshaving the power of
eminent domain may avoid condemnation proceedings when they agree
among themselvesas to the paramountpublic use of land owned by ona
of them. See KingsvllleIndependentSchool Districtv. Crenshaw,252
S.W.2d 102nTex. Cl". App.:- San Antonio 1943, writ ref'd) (adopting
in full the opinion In KJ.ngsvilleIndependent 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. - El                  "+%ZiZZolton
          Paso 1962, no writ  .                 v. City of Waco, 447
S.W.2d 718 (Tex. Cl". App. .-Waco 1969, writ ref'd n.r.e.); Attorney
General OpinionsH-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 inherentpower of
the sovereign to take proylartyfor public use and welfare, provided
adequate compensationis 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,roolitical subdivisionof 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 statutoryprovisionof which we are aware
grants authority to the board of TSTI to acquire property by
condemnation.

     The Sixty-ninth Leg:tslatureamended section 2 of article
5421c-12,V.T.C.S., to exempt from the bid proceduresand publication
requirementsof that act "sny interest in land that is conveyedby a
political subdivision to o governmentalentity having the power of
eminent domain." Acts 19815,69th Leg., ch. 367, at 2668. The facts
presentedto us indicate that none of the exemptionsin section 2 are
applicable to the land in question. Section 4 of article 5421c-12
still provides,however, that a conveyanceexempt from bid procedures
and notice requirementsshall not be made for considerationthat is
less than the fair marks% value of the land or interest being
conveyed.

     Your questions suggezata 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 :Landdesignated or utilized as a "park,
recreationarea, scientifi:area, wildlife refuge, or historic site"
may be disposed of by a muuicipalityor other governmentalentities.
Section 26.001 does not ap?:Lyto the property about which you inquire
since that property has not to our knowledgebeen designatedfor any
of those purposes. See Al:t:orneyGeneral 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 Protectionof Public Parks and RecreationalLands, does not
    define the term "park," bui:we do not believe the term is intendedto
    apply to the HarlingenIndustrialAir Park.

                                 SUMMARY

                Article 5+21c-:l2,V.T.C.S., enacted after an
             ordinanceof the city of Harlingen authorizedthe
             conveyanceof 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. Subsequentto its
             original conveyance,the land was transferredto
             the state for usc by Texas State TechnicalInsti-
             tute. Whether the city and TSTI entered a binding
             contractualrelationshipprior to article 5421c-12
             and, if so, the terms of the contract, involve
             fact questions aat3interpretationsof the city's
             charter and ordj,nancesthat 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
             requirementsof section 26.001, Texas Parks and
             Wildlife Code.

                                             VeryItruly your4 1



                                             JIM    MATTOX
                                             AttorneyGeneral of Texas

    JACK HIGHTOWER
    First AssistantAttorneyGeneral

    MARY KELLER
    ExecutiveAssistantAttorney General

    ROBERT GRAY
    SpecialAssistantAttorneyGeneral

    RICK GILPIN
    Chairman,Opinion Committee

    Preparedby Nancy Sutton
    AssistantAttorney General




                                   p. 1808
