Did designating school-district or other local-government land as a Texas state archaeological landmark require the owner to deed the property to the state?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-104: Deeds for State Archaeological Landmarks
Plain-English summary
JM-104 concluded that when property owned by a city, county, school district, or other political subdivision was designated a state archaeological landmark, the Antiquities Code did not require the local owner to transfer the deed to Texas. The property also remained under the local body's management, use, and control.
"It follows that the Antiquities Code does not require a deed transfer of real property designated as a state archaeological landmark or remove it from the management, use, and control of cities, counties, or political subdivisions by which they are held for public use and benefit."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
Landmark designation still gave the Texas Antiquities Committee authority to preserve the property's archaeological value. That custodial authority displaced local management or use rights to the extent of an actual conflict.
"However, the committee's custodial authority supersedes other management and usage rights to the extent that the latter would conflict or interfere with the committee's legislatively mandated duty to protect and preserve a landmark's 'archaeological' value."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
The opinion accepted the committee's longstanding administrative construction of the statute. It noted that roughly five hundred landmarks designated since 1977 had not involved deeds transferring ownership to the state.
"You advise us that designation of about five hundred state archaeological landmarks since 1977 has never involved a deed transferring ownership to the state."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Did the Antiquities Code say public archaeological landmarks were state property?
Yes. Section 191.093 said covered landmarks were the state's sole property and could not be taken, altered, damaged, destroyed, salvaged, or excavated without a committee contract or permit. JM-104 read that provision as granting preservation control, not requiring transfer of the local owner's deed.
"[L]andmarks under . . . 191.092 of this code are the sole property of the State of Texas and may not be taken, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit from the committee."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf"The Antiquities Committee view that its governing statute requires it to protect and preserve the value of state archaeological landmarks while the deed of ownership remains with the municipal corporation holding it in trust for the public is consonant with this principle."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
What property qualified under section 191.092(a)?
The section covered sites, objects, buildings, artifacts, implements, and locations of historical, archaeological, scientific, or educational interest on land belonging to Texas or a political subdivision.
"[S]ites, objects, buildings, artifacts, implements, and locations of historical, archaeological, scientific, or educational interest . . . that are located in, on, or under the surface of any land belonging to the State of Texas or to any county, city, or political subdivision of the state are state archaeological landmarks."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
Could the Antiquities Committee control how locally owned landmark property was used?
Only as necessary to perform its statutory preservation duty, according to JM-104. Local management remained in place except where it conflicted with protection of the landmark's archaeological value.
"[S]uch property is appropriately retained by the municipal corporation while the Antiquities Committee becomes responsible for the preservation of its value as a state archaeological landmark."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf"[T]he committee's custodial authority supersedes other management and usage rights to the extent that the latter would conflict or interfere with the committee's legislatively mandated duty to protect and preserve a landmark's 'archaeological' value."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
Did the opinion decide whether declaring local property to be state property was constitutional?
No. JM-104 expressly declined that constitutional issue.
"We do not address any constitutional question regarding the declaration that municipal property is the sole property of the state of Texas."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
Background and legal framework
The request concerned property owned by an independent school district and asked whether landmark designation required a deed to the Texas Antiquities Committee.
"You wish to know whether designation of a specific piece of real property owned by an independent school district requires the execution and delivery of a deed to the Texas Antiquities Committee."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
The Antiquities Code stated a public policy of locating, protecting, and preserving places of historical, archaeological, educational, or scientific interest. It also assigned the committee responsibility for protecting and preserving Texas archaeological resources.
"Section 191.002 declares it to be the public policy . . . of the State of Texas to locate, protect, and preserve all . . . buildings . . . and locations of historical, archaeological, educational, or scientific interest."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf"Section 191.051(b)(5) reiterates that it is the responsibility of the Antiquities Committee to 'protect and preserve the archaeological resources of Texas.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
Holding
"Where sections 191.092(a) and 191.093 of the Natural Resources Code have been uniformly construed by those charged with their enforcement to mean that no transfer of deed is required when real property owned by a county, city, or other political subdivision is designated a state archaeological landmark, this construction is deemed effective absent legislative action to the contrary or evidence that the construction given is erroneous or unsound."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0104
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0104.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
December 29, 1983
Fred Wendorf, Ph.D.
Chairman
Texas Antiquities Committee
P. O. Box 12276, Capitol Station
Austin, Texas 78711
Opinion No. JM-104
Re: Effect of designation as a state archaeological landmark
Dear Dr. Wendorf:
You ask for clarification of the effect of the designation of real property owned by a political subdivision to be a state archaeological landmark under the Antiquities Code, chapter 191 of the Natural Resources Code. You wish to know whether designation of a specific piece of real property owned by an independent school district requires the execution and delivery of a deed to the Texas Antiquities Committee.
Section 191.092(a) states that
sites, objects, buildings, artifacts, implements, and locations of historical, archaeological, scientific, or educational interest, including those pertaining to prehistoric and historical American Indians or aboriginal campsites, dwellings, and habitation sites, their artifacts and implements of culture, as well as archaeological sites of every character that are located in, on, or under the surface of any land belonging to the State of Texas or to any county, city, or political subdivision of the state are state archaeological landmarks. (Emphasis added).
Section 191.093 provides that
landmarks under . . . 191.092 of this code are the sole property of the State of Texas and may not be taken, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit from the committee. (Emphasis added).
Section 191.002 declares it to be
the public policy . . . of the State of Texas to locate, protect, and preserve all . . . buildings . . . and locations of historical, archaeological, educational, or scientific interest. . . .
Section 191.051(b)(5) reiterates that it is the responsibility of the Antiquities Committee to "protect and preserve the archaeological resources of Texas." We do not address any constitutional question regarding the declaration that municipal property is the sole property of the state of Texas.
You state that the Texas Antiquities Committee interprets these provisions as limiting its jurisdiction over properties designated as state archaeological landmarks to the protection and preservation of their value as such. We agree with your interpretation of these provisions.
It is well recognized that the legislature may exercise authority over property belonging to the state of Texas or to any county, city, or political subdivision of the state, subject only to constitutional restraints. Greene v. Robison, 8 S.W.2d 655, 659 (Tex. 1928); Houston v. Gonzales Independent School District, 229 S.W. 467, 468 (Tex. 1921); Reese v. Cobb, 135 S.W. 220, 224 (Tex. Civ. App. 1911, no writ); Weekes v. Galveston, 51 S.W. 544, 546-547 (Tex. Civ. App. 1899, writ ref'd). The constitutional limitations on the legislature's control of property owned by municipal and quasi-municipal corporations, such as school districts, were defined in Love v. City of Dallas, 40 S.W.2d 20, 27 (Tex. 1931), where it was said that the public interest in municipal property acquired for its benefit did not prevent the legislature from controlling or disposing of property without the consent of the local governmental body so long as such was not done in contravention of the trust. See also City of Victoria v. Victoria County, 101 S.W. 190, 193 (Tex. 1907); Texas Antiquities Committee v. Dallas County Community College District, 554 S.W.2d 924, 930-931 (Tex. 1977).
The Antiquities Committee view that its governing statute requires it to protect and preserve the value of state archaeological landmarks while the deed of ownership remains with the municipal corporation holding it in trust for the public is consonant with this principle. You advise us that designation of about five hundred state archaeological landmarks since 1977 has never involved a deed transferring ownership to the state. Thus, the committee's administrative construction of the ambiguous sections 191.092(a) and 191.093 supports the conclusion that such property is appropriately retained by the municipal corporation while the Antiquities Committee becomes responsible for the preservation of its value as a state archaeological landmark. Koy v. Schneider, 221 S.W. 880, 885 (Tex. 1920); Stanford v. Butler, 181 S.W.2d 269, 273-274 (Tex. 1944). The Antiquities Code, originally passed in 1969, was amended in 1981 without major change. Consequently, we believe that it may be presumed that the Antiquities Committee's interpretation of the code meets with legislative approval. Calvert v. Houston Lighting & Power Co., 369 S.W.2d 502, 509-510 (Tex. Civ. App. - Austin 1963, writ ref'd n.r.e.); Railroad Commission of Texas v. Texas & New Orleans Railroad Co., 42 S.W.2d 1091, 1097-98 (Tex. Civ. App. - Austin 1931, writ ref'd).
It follows that the Antiquities Code does not require a deed transfer of real property designated as a state archaeological landmark or remove it from the management, use, and control of cities, counties, or political subdivisions by which they are held for public use and benefit. However, the committee's custodial authority supersedes other management and usage rights to the extent that the latter would conflict or interfere with the committee's legislatively mandated duty to protect and preserve a landmark's "archaeological" value. Therefore, we conclude that the committee's interpretation of 191.092(a) and 191.093 is a reasonable construction of these statutes absent contrary legislative action and any evidence that such construction is erroneous or unsound. Shaw v. Strong, 96 S.W.2d 276 (Tex. 1936); Koy v. Schneider, 221 S.W. 880 (Tex. 1920).
SUMMARY
Where sections 191.092(a) and 191.093 of the Natural Resources Code have been uniformly construed by those charged with their enforcement to mean that no transfer of deed is required when real property owned by a county, city, or other political subdivision is designated a state archaeological landmark, this construction is deemed effective absent legislative action to the contrary or evidence that the construction given is erroneous or unsound.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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