Can a Texas city give land to the state for a public college, and can the college condemn land it needs?

Texas AG Opinion JM-394: State College Land & Eminent Domain

Plain-English summary

Back in 1968 the city of Harlingen held an election and its voters approved handing over roughly 118 acres of the old Harlingen Air Force Base to the state for a vocational and technical training school. The legislature created Texas State Technical Institute (TSTI) the next year, and over time the city transferred tracts of that land to the state for TSTI's use. Years later the chairman of the TSTI board of regents asked the Attorney General a cluster of questions about how the arrangement worked: was the 1968 election a binding contract, could the city still rescind it, did TSTI have the power to condemn land, and could the city simply donate more land to the state. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

The Attorney General started by saying most of the questions could not be answered in the opinion process, because they turned on facts and on interpreting the city's charter and ordinance. Whether the 1968 vote created a binding contract, and on what terms, was a fact question. The AG did offer some legal guardrails. A home rule city cannot pass ordinances that conflict with state law, and when the legislature later passes a statute that conflicts with a city ordinance, the ordinance gives way except as to vested rights. Municipal corporations, though, do not hold vested rights against the state. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

On the land-sale rules, the AG explained that article 5421c-12, V.T.C.S., enacted in 1969, governs how a political subdivision sells or exchanges land, generally requiring published notice and sealed bids. The statute lists exemptions, including conveyances to a governmental entity that has eminent-domain power, but even an exempt conveyance cannot be made for less than the land's fair market value. The AG found none of the exemptions clearly applied to this land on the facts presented. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

The one clean legal answer was about condemnation. The AG concluded that TSTI does not have the power of eminent domain. An agency of the state has only the condemnation power the legislature expressly gives it, and section 135.02(c) of the Education Code lets the TSTI board "accept or acquire by purchase" land in three named counties but says nothing about taking property by condemnation. The AG also concluded the land was not subject to the notice-and-hearing requirements of section 26.001 of the Parks and Wildlife Code, because the property had never been designated as a park, recreation area, or similar protected land. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Article 5421c-12 and article 5421q have since been recodified into the Local Government Code and other codes, and Texas State Technical Institute was later reorganized as the Texas State Technical College System. Treat this page as historical context, not current legal advice, and verify current law before relying on any specific rule mentioned here.

Common questions

Did the state college have the power to condemn land it wanted?

No. The Attorney General concluded that TSTI had no power of eminent domain. A state agency can condemn property only when the legislature has expressly given it that authority, and the statute governing TSTI let its board accept or purchase land but never authorized condemnation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

Could the city sell or give the land to the state without an auction?

Sometimes. Article 5421c-12 normally required published notice and sealed bids, but it exempted certain conveyances, including one to a governmental body with eminent-domain power. Even an exempt conveyance, though, could not be for less than fair market value, and on the facts the AG did not find a clear exemption. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

Was the 1968 voter-approved deal a binding contract the city could not undo?

The Attorney General would not answer that. Whether the 1968 election created a binding contract, whether the consideration was adequate, and whether the city could rescind it were all fact questions that depended on the city's charter and ordinance, which the opinion process is not equipped to resolve. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

Can one legislature lock in a long-term contract that binds future ones?

Not really. The AG noted the state generally cannot obligate itself for more than two years, because no appropriation may run longer than two years and the constitution bars the state from contracting on anticipated revenue. A long-term contract is possible only if payment is conditioned on the availability of appropriated funds, and one legislature cannot force later ones to keep funding TSTI. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

Background and statutory framework

The request came from the chairman of the TSTI board of regents and grew out of a 1968 transaction. The city of Harlingen adopted Ordinance No. 68-11, called an election, and the voters authorized conveying about 118 acres of the former Harlingen Air Force Base for a vocational and technical training institute, subject to a reversion if the restriction was breached. After the legislature created TSTI in 1969 (Acts 1969, 61st Leg., ch. 179), tracts of that land moved to the state for TSTI's use under chapter 135 of the Education Code. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

On the municipal-power side, the AG relied on the rule that a home rule city has all power not denied by the constitution and statutes, but its ordinances cannot conflict with state law (Tex. Const. art. XI, §5; V.T.C.S. art. 1165; City of Nassau Bay v. City of Webster, 600 S.W.2d 905, 910 (Tex. Civ. App. - Houston [1st Dist.] 1980), writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex. 1980); Royer v. Ritter, 531 S.W.2d 448, 450 (Tex. Civ. App. - Beaumont 1975, writ ref'd n.r.e.)). When a later statute conflicts with an ordinance, the ordinance is ineffective except as to vested rights, but municipal corporations hold no vested rights against the state (Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966); City of Baytown v. Angel, 469 S.W.2d 923, 925 (Tex. Civ. App. - Houston [14th Dist.] 1971, writ ref'd n.r.e.)). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

The land-conveyance analysis turned on article 5421c-12, V.T.C.S., which the AG quoted at length: it bars a political subdivision from selling or exchanging land without published notice, lists exemptions in section 2 (including narrow strips, streets, easements, and conveyances to a governmental entity with eminent-domain power), and provides in section 4 that an exempt conveyance may never be for less than fair market value as set by appraisal. The Sixty-ninth Legislature had just amended section 2 to add the eminent-domain-entity exemption (Acts 1985, 69th Leg., ch. 367). On the contract-duration point, the AG cited the two-year limits in Article VIII, section 6 and Article III, section 49 of the Constitution and City of Big Spring v. Board of Control, 389 S.W.2d 523 (Tex. Civ. App. - Austin 1965), aff'd, 404 S.W.2d 810 (Tex. 1966). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

For eminent domain, the AG drew on the principle that the power is inherent in the sovereign and must be expressly conferred on an agency by the legislature (Maberry v. Pedernales Electric Cooperative, Inc., 493 S.W.2d 268 (Tex. Civ. App. - Austin 1973, writ ref'd n.r.e.); Hall v. Wilbarger County, 37 S.W.2d 1041 (Tex. Civ. App. - Amarillo 1931), aff'd, 55 S.W.2d 797 (Tex. Comm'n App. 1932)). Because section 135.02(c) of the Education Code only authorized the board to accept or purchase land, TSTI had no condemnation power. Finally, the AG concluded section 26.001 of the Parks and Wildlife Code (formerly V.T.C.S. art. 5421q) did not apply, since the property had never been designated as a park, recreation area, scientific area, wildlife refuge, or historic site. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

Citations and references

• Tex. Const. art. XI, §5; art. VIII, section 6; art. III, section 49
• V.T.C.S. art. 1165
• article 5421c-12, V.T.C.S. (see Acts 1985, 69th Leg., ch. 367); article 5421q, V.T.C.S.
• chapter 135 of the Texas Education Code; Section 135.02(c)
• Section 26.001 of the Texas Parks and Wildlife Code
• Acts 1969, 61st Leg., ch. 179
• City of Nassau Bay v. City of Webster, 600 S.W.2d 905, 910 (Tex. Civ. App. - Houston [1st Dist.] 1980), writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex. 1980)
• Royer v. Ritter, 531 S.W.2d 448, 450 (Tex. Civ. App. - Beaumont 1975, writ ref'd n.r.e.)
• Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966)
• City of Baytown v. Angel, 469 S.W.2d 923, 925 (Tex. Civ. App. - Houston [14th Dist.] 1971, writ ref'd n.r.e.)
• City of Big Spring v. Board of Control, 389 S.W.2d 523 (Tex. Civ. App. - Austin 1965), aff'd, 404 S.W.2d 810 (Tex. 1966)
• Kingsville Independent School District v. Crenshaw, 252 S.W.2d 1022 (Tex. Civ. App. - San Antonio 1943, writ ref'd); 164 S.W.2d 49 (Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.)
• El Paso County v. City of El Paso, 357 S.W.2d 783 (Tex. Civ. App. - El Paso 1962, no writ)
• Bolton v. City of Waco, 447 S.W.2d 718 (Tex. Civ. App. - Waco 1969, writ ref'd n.r.e.)
• Maberry v. Pedernales Electric Cooperative, Inc., 493 S.W.2d 268 (Tex. Civ. App. - Austin 1973, writ ref'd n.r.e.)
• Hall v. Wilbarger County, 37 S.W.2d 1041 (Tex. Civ. App. - Amarillo 1931), aff'd, 55 S.W.2d 797 (Tex. Comm'n App. 1932)
• Attorney General Opinions M-1232 (1972), MW-70 (1979), H-1256 (1978), H-108 (1973), H-93 (1973), M-788 (1971)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0394
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0394.pdf

Original opinion text

Transcribed from the scanned PDF by OCR. Character-level scanning errors have been cleaned; the wording, citations, and substance are reproduced as issued. Genuinely omitted material within the quoted statute is shown as the opinion's own ellipses.

The Attorney General of Texas

December 19, 1985

Mr. Ralph Lowenfield
Chairman
Board of Regents
TSTI System
P. O. Box 1308
Waco, Texas 76703

Opinion No. JM-394

Re: Whether Texas State Technical Institute may acquire land from the city of Harlingen under certain circumstances

Dear Mr. Lowenfield:

You requested an opinion relating to the acquisition of land from the city of Harlingen by the state for use by Texas State Technical Institute [hereinafter TSTI] in vocational and technical education.

You advise us that, in 1968, the city of Harlingen adopted an ordinance calling an election of the voters to approve or disapprove authority of the city commission to convey all or part of approximately 118 acres as "determined advisable by the city commission, from time to time," for the restrictive purpose of establishing and operating a vocational and technical training institute and with reversion of the title in the event of a breach of the restriction. Harlingen, Ordinance No. 68-11 (May 16, 1968). In 1968, the voters approved such a conveyance of the land and improvements in the described area, which constitutes a total of 118.6 acres at the Harlingen Industrial Air Park (formerly the United States government's Harlingen Air Force Base). Also in 1968, the city of Harlingen conveyed approximately 22 acres to the Lower Rio Grande Valley Development Council for the establishment of a vocational skills training center. After the legislature created TSTI in 1969 with a board of regents authorized to accept, in the name of the state, the conveyance of land and facilities in Cameron County and Potter County, the 22 acres were transferred to the state for use by TSTI. See Acts 1969, 61st Leg., ch. 179, at 515. TSTI continuously has occupied, developed, and used the property as provided by chapter 135 of the Texas Education Code. Since the original conveyance, the city from time to time transferred to the state of Texas other tracts of land from the original 118 acres for the continued growth and development of the vocational and technical school operated there by TSTI.

You ask the following:

1. Is the election which was held on the 11th day of June, 1968, as set forth in the Ordinance identified as 68-11, valid in the following respects:

a. Does it define the adequate consideration for the city of Harlingen 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, constitutes 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 (68-11), a ratification of the Ordinance?

d. Is the Ordinance (68-11), approved by the voters of Harlingen, still in full force and effect and binding upon the present and future city commissions?

e. Does the city of Harlingen hold the title to the remaining property yet to be conveyed to the state of Texas in trust for and in behalf of the state of Texas?

f. Does the city of Harlingen, in order to rescind the Ordinance approved by the voters in 1968, require an election called for the purpose of rescinding the vote?

g. Are any future conveyances subject to the provisions of article 5421c-12, V.T.C.S., or can the parties continue to rely upon the previously approved Ordinance?

2. Does Texas State Technical Institute as an agency of the state of Texas have the authority of eminent domain in 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 Harlingen donate and convey a tract of land to the state of Texas for use in building and operating a state vocational and technical institute?

4. If the city may make a donation to the state of Texas, once public hearings are held under the provision of article 5421q, V.T.C.S., is it then binding on future city officials?

These questions are so intertwined with issues of fact that we cannot properly address them here in a comprehensive manner. However, we will attempt to offer some general guidance regarding the strictly legal issues involved. The 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 consideration 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 general laws of the state. Tex. Const. art. XI, §5; V.T.C.S. art. 1165; City of Nassau Bay v. City of Webster, 600 S.W.2d 905, 910 (Tex. Civ. App. - Houston [1st Dist.] 1980), writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex. 1980); Royer v. Ritter, 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). When the legislature enacts a statute in conflict with a prior city ordinance, the city ordinance is rendered ineffective except as to certain vested rights. See Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966); City of Baytown v. Angel, 469 S.W.2d 923, 925 (Tex. Civ. App. - Houston [14th Dist.] 1971, writ ref'd n.r.e.). In Deacon v. City of Euless, the Texas Supreme Court pointed out that the Legislature cannot, by retroactive 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 governing 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. 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 circulation in the county where the land is located or in an adjoining county, if there is no such newspaper, 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. . . .

Sec. 2. Bid procedures and publication requirements as set forth in Section 1 of this Act shall not be applicable in the sale or disposal of real property interests belonging to a political subdivision in the following circumstances:

(1) narrow strips of land, or land so shaped or so small as to be incapable of being used independently as zoned or under applicable subdivision or other development control ordinances, in which event such land 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 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 proportion 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 or 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 manner;

(4) any land or interest therein which was originally acquired for the purpose of streets, rights-of-way or easements which the political subdivision chooses to trade or exchange as consideration 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 desires to have developed by contract with an independent foundation; or

(6) any interest in land that is conveyed by a political subdivision to a governmental entity having the power of eminent domain.

. . . .

Sec. 4. Any conveyance, sale or trade made under the exemptions set forth in Section 2, shall never be for less than the fair market value of the land or interest being conveyed, sold, or traded, as determined by an appraisal obtained by the political subdivision, which shall be conclusive of the fair market value thereof.

V.T.C.S. art. 5421c-12 (see Acts 1985, 69th Leg., ch. 367, at 2667 for amended §2).

Whether the city of Harlingen 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. However, the ability of the state and an agency of the state to enter into a contract is not unlimited. The Texas Constitution is silent as to the length of the term for which a contract may be made by the state, but the state may 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 no appropriation may be made for a period longer than two years. Article III, section 49 prohibits the state from creating debts and prevents contracting on the basis of anticipated revenues. The state may enter into an indefinite or long-term binding contract involving the expenditure of appropriated funds if payment is conditioned on 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 the Harlingen facility of TSTI. See City of Big Spring v. Board of Control, 389 S.W.2d 523 (Tex. Civ. App. - Austin 1965), aff'd, 404 S.W.2d 810 (Tex. 1966) (relating to the validity and terms 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 not 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 do not need the consent of an 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 one of them. See Kingsville Independent School District v. Crenshaw, 252 S.W.2d 1022 (Tex. Civ. App. - San Antonio 1943, writ ref'd) (adopting in full the opinion in Kingsville Independent School District v. Crenshaw, 164 S.W.2d 49 (Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.)); El Paso County v. City of El Paso, 357 S.W.2d 783 (Tex. Civ. App. - El Paso 1962, no writ). See also Bolton v. City of Waco, 447 S.W.2d 718 (Tex. Civ. 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 property for public use and welfare, provided adequate compensation is made. See Maberry v. Pedernales Electric Cooperative, Inc., 493 S.W.2d 268 (Tex. Civ. App. - Austin 1973, writ ref'd n.r.e.). An agency or political subdivision of the state has only the power of eminent domain expressly conferred on it by the legislature. See Hall v. Wilbarger County, 37 S.W.2d 1041 (Tex. Civ. App. - Amarillo 1931), aff'd, 55 S.W.2d 797 (Tex. Comm'n App. 1932). Section 135.02(c) of the Texas 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 Legislature amended section 2 of article 5421c-12, V.T.C.S., to exempt from the bid procedures and publication requirements of that act "any interest in land that is conveyed by a political subdivision to a governmental entity having the power of eminent domain." Acts 1985, 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 market value of the land or interest being conveyed.

Your questions suggest 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. 5421q) requires notice and a hearing and certain findings before land designated or utilized as a "park, recreation area, scientific area, wildlife refuge, or historic site" may be disposed of by a municipality or other governmental entities. Section 26.001 does not apply to the property about which you inquire since that property has not to our knowledge been designated for any of those purposes. See Attorney General Opinions H-108 (1973); H-93 (1973); M-788 (1971). Chapter 26 of the Parks and Wildlife Code, entitled Protection of Public Parks and Recreational Lands, does not define the term "park," but we do not believe the term is intended to apply to the Harlingen Industrial Air Park.

SUMMARY

Article 5421c-12, V.T.C.S., enacted after an ordinance of the city of Harlingen authorized the conveyance of 118 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 owned by cities. Subsequent to its original conveyance, the land was transferred to the state for use by Texas State Technical Institute. 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 and interpretations of the city's charter and ordinances that this agency is not equipped to answer in the opinion process. TSTI has not been 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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

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