Can Texas make a public school building a protected historic landmark and stop the district from demolishing it?

Texas AG Opinion JM-958: Historic Landmark Status on School Land

Plain-English summary

Texas protects historic and archeological sites through the Antiquities Code, run by the State Antiquities Committee. When the committee designates a building as a state archeological landmark, the building effectively becomes state property for preservation purposes, and no one can alter or demolish it without a committee permit. That works cleanly for a battlefield or an old fort. It gets complicated when the building belongs to a school district that needs to tear it down and put up a new school. The committee's chairman asked the Attorney General seven questions about how far its power reaches over school property, and the answers mostly came back "it depends on the facts."

The heart of the tension is money. Under the Texas Constitution, school taxes and school lands are held in trust for educating children. If the committee forces a district to keep and maintain an old building it can no longer use as a school, or blocks the district from demolishing it and replacing it, that can pull dedicated school resources away from education. The Attorney General concluded that both designating a school building as a landmark and denying a demolition permit could, on the right facts, be an unconstitutional diversion of school funds or property. But he would not say it always is. Sometimes a designation changes nothing about how the district uses its resources. The only honest answer is a case-by-case one, and any permit denial has to be backed by real evidence, not just the committee's preference. That was the lesson of the leading case, Texas Antiquities Committee v. Dallas County Community College District, where the Texas Supreme Court set aside the committee's refusal to let a college demolish three buildings because the refusal was not supported by substantial evidence.

The chairman also floated a reading of that Dallas County case: that as long as non-trust funds are available, the committee's landmark and its intrinsic value cannot be disturbed unless the building is shown unsuitable for education. The Attorney General did not accept that framing. He read the case more simply, as turning on the absence of substantial evidence for the committee's specific decision, and again pointed to case-by-case adjudication rather than a bright-line rule.

On the constitutional-taking question, the answer was cleaner: no. Article I, section 17 of the Texas Constitution bars taking or damaging property without compensation, but courts have generally applied that protection to private property. When the property at issue is public, one public body's use can yield to another public use if the legislature has authorized it and certain conditions are met. The committee has statutory authority to designate school buildings and to grant or deny demolition permits, so exercising those powers lawfully does not amount to an uncompensated taking. (It is different for private property: the opinion noted that designating a privately owned building as a landmark, or refusing a demolition permit for it, can trigger the compensation requirement, as in a case where the City of Austin restricted a private hotel.)

The last question was whether the whole permit scheme is unconstitutional because it lets the committee grant or deny permits with no real standard, just whatever it thinks is in the "best interest of the State of Texas." A vague delegation with a criminal penalty attached is a serious problem, and an invalid administrative order cannot be enforced by criminal punishment. But the Attorney General concluded the standard survives. When the Antiquities Code was written, "best interest of the State" made sense read against the code's stated purpose of preserving historic resources. Since then the legislature amended the code to require the committee to weigh the fiscal impact on a political subdivision and to account for competing public interests, and the "best interest" language is broad enough to carry those added considerations. The committee can adopt rules that spell out how it balances preservation against a school district's need to control its own property. So section 191.054 does not fall for lack of standards, and prosecutions under the penalty provisions are not categorically barred, though whether any particular permit denial or prosecution is valid still has to be judged case by case.

Currency note

This opinion was issued in 1988. 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.

The Antiquities Code in chapter 191 of the Natural Resources Code has been amended since 1988, and the Administrative Procedure and Texas Register Act (article 6252-13a, V.T.C.S.) was later recodified into the Government Code. The state historic preservation functions have also been reorganized, with the Texas Historical Commission taking a central role. The constitutional principles about dedicated school funds (article VII, sections 3 and 6) and takings (article I, section 17) remain the general framework, but the specific statutes, standards, and procedures have changed. Anyone dealing with landmark designation of public property or a demolition permit dispute today should consult the current Natural Resources Code and the rules of the relevant preservation agency rather than the 1988 provisions here.

Who this opinion affected (as of 1988)

The State Antiquities Committee: The opinion told the committee its landmark and permit powers over school buildings are real but constrained, that permit denials need substantial evidence, and that it should adopt rules balancing preservation against a district's needs.

Independent school districts: The opinion recognized that a landmark designation or permit denial can, on the facts, unconstitutionally divert dedicated school resources, giving districts a basis to challenge such actions.

Owners of historic public buildings generally: The opinion clarified that public property lacks the private-property takings protection but is subject to the constitutional limits on diverting funds dedicated to a particular purpose.

Common questions

Can the Antiquities Committee stop a school district from tearing down an old building?
Sometimes. It can designate the building a state archeological landmark and require a permit to demolish it, but denying that permit could unconstitutionally divert dedicated school resources depending on the facts, and any denial must be supported by substantial evidence.

Is refusing a demolition permit to a school an unconstitutional taking?
No. Article I, section 17 of the Texas Constitution generally protects private property. Public property may yield to another public use where the legislature has authorized it, so a lawful permit denial to a school district is not an uncompensated taking.

What about a privately owned historic building?
That is different. The opinion noted that designating private property as a landmark or denying a demolition permit for it can trigger the constitutional requirement of adequate compensation.

Is the committee's "best interest of the State" permit standard too vague?
The Attorney General concluded it is not. Read together with the Antiquities Code's purpose clause and later amendments requiring consideration of fiscal impact and the interests of political subdivisions, the standard adequately guides the committee, so section 191.054 is not void for lack of standards.

Background and statutory framework

The committee is created by section 191.011 of the Natural Resources Code, and its powers and duties are set out in the Antiquities Code, sections 191.001 through 191.174. It must determine the site of and designate landmarks as provided in Subchapter D (section 191.051(b)(2)). Section 191.092(a) provides that sites, objects, buildings, and locations of historical, archeological, scientific, or educational interest on land belonging to the state or a political subdivision are state archeological landmarks and eligible for designation, and section 191.092(b) sets out when a structure has historical interest. Before designation, a building must be listed on the National Register of Historic Places (section 191.092(c); see 16 U.S.C. section 470(a)), and the committee must consider any and all fiscal impact on local political subdivisions (section 191.092(d), (e)). A landmark is the sole property of the state and may not be removed, altered, damaged, or destroyed without a committee contract or permit (section 191.093). This has produced conflict between the committee's preservation role and a district's interest in using or replacing its buildings (see Attorney General Opinion JM-104 (1983); Texas Antiquities Committee v. Dallas County Community College District, 554 S.W.2d 924 (Tex. 1977); Board of Regents v. Walker County Historical Commission, 608 S.W.2d 252 (Tex. Civ. App. - Houston [14th Dist.] 1980, no writ)).

In the Dallas County case, the Texas Supreme Court set aside an order of the committee denying a community college district a permit to demolish three buildings. The court divided on reasoning and result: a plurality of four justices found the predecessor statute (former section 6 of article 6145-9, V.T.C.S.) unconstitutionally vague and unconstitutionally applied, and the denial unsupported by substantial evidence; the chief justice concurred solely on substantial evidence; four justices dissented. The plurality found that the buildings could not be restored except by spending an unreasonable amount of money and even then could not be made usable for educational purposes, and that restoration would require diverting public funds held in trust for the school district. Answering the committee's argument that a political subdivision has no property rights protectable against the committee, the plurality observed that a state agency cannot divest property and contract rights in violation of specific constitutional provisions (Love v. City of Dallas, 40 S.W.2d 20 (Tex. 1931); Milam County v. Bateman, 54 Tex. 153 (1880)).

On the first two questions, article VII, section 3, of the constitution requires certain tax revenues to support the public free schools, and article VII, section 6, provides that lands granted to counties for educational purposes are held as a trust for the benefit of public schools. In Milam County v. Bateman, the court stated that the state may not arbitrarily take school land from the county and give it to private parties; in Love v. City of Dallas, the court found a violation of article VII, section 3, in legislation requiring a school district to spend its funds educating non-residents, because school funds and properties held in trust could not be devoted to other purposes (see also City of El Paso v. El Paso Community College District, 729 S.W.2d 296 (Tex. 1986), recognizing an exception under article VIII, section 1-g(b)). The Attorney General concluded that a designation might change nothing about the district's use of dedicated funds, but on some facts an SAL designation could effect a diversion, for example by requiring the district to maintain a building no longer usable for education, so the answer depends on the particular facts and cannot be resolved in an opinion. Whether a permit denial causes such a diversion likewise depends on the facts; the Dallas County court indicated a constitutional question would not have arisen had non-school-money funds been available.

On the third question, the Attorney General disagreed with the committee's characterization of the decision, noting that five justices agreed the particular determination was not supported by substantial evidence (554 S.W.2d at 931 (concurring opinion)), and that similar or different evidence could bear on other exercises of the permit power, to be judged case by case (see Attorney General Opinion H-620 (1975)). The fourth question was answered by the preceding discussion. On the fifth, the committee is subject to the Administrative Procedure and Texas Register Act (article 6252-13a, V.T.C.S.) and section 191.021(a); a permit proceeding is a contested case, and parties have notice, an opportunity for hearing, and a right to judicial review after exhausting administrative remedies (article 6252-13a, sections 13, 19; see Attorney General Opinion MW-378 (1981)).

On the sixth question, article I, section 17, provides that no person's property shall be taken, damaged, or destroyed for public use without adequate compensation. In Southern National Bank of Houston v. City of Austin, 582 S.W.2d 229 (Tex. Civ. App. - Tyler 1979, writ ref'd n.r.e.), involving historic-landmark zoning of a privately owned hotel, the court held the city had damaged the property for public use without compensation. But article I, section 17, generally applies to private property (State v. Steck Co., 236 S.W.2d 866, 869 (Tex. Civ. App. - Austin 1951, writ ref'd)). Public property may be taken for another public use where there is express or implied legislative authority, where the additional use will not materially interfere with the existing use, or where the subsequent taking is for a public purpose of greater importance that cannot be accomplished another practical way (Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex. 1973); Snellen v. Brazoria County, 224 S.W.2d 305 (Tex. Civ. App. - Galveston 1949, writ ref'd n.r.e.)). Because the committee has statutory authority to designate school buildings and to grant or deny demolition permits, exercising those powers in compliance with law does not damage or take property without compensation.

On the seventh question, section 191.171 establishes a criminal penalty (a misdemeanor punishable by a fine of $50 to $1,000, confinement up to 30 days, or both) for violations of chapter 191. Violations of administrative rules and orders may be punishable by a legislatively established penalty (United States v. Gordon, 580 F.2d 827 (5th Cir. 1978); Harrington v. Railroad Commission, 375 S.W.2d 892 (Tex. 1964); Tuttle v. Wood, 35 S.W.2d 1061 (Tex. Civ. App. - San Antonio 1931, writ ref'd)), but an invalid administrative order may not be enforced by a criminal penalty. When the legislature delegates rulemaking authority, it must prescribe adequate standards to guide the agency's discretion (Texas Antiquities Committee v. Dallas County Community College District, supra; Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978); Tex. Const. art. II, section 1; art. III, section 1). Section 191.054 authorizes permits that in the committee's opinion are in the best interest of the State of Texas. That standard, adopted with the Antiquities Code in 1969 (Acts 1969, 61st Leg., 2d C.S., ch. 2), was originally read together with the code's purpose clause (section 191.002) to require permit decisions serving the state's interest in historical preservation, against the backdrop of the state's effort to reclaim artifacts from a sunken Spanish galleon. The "best interest" language has not changed, but the code has been amended to require the committee to consider fiscal impact and the interests of political subdivisions, and to authorize demolition permits for previously designated landmarks. The standard is broad enough to incorporate those modified legislative intentions, and the committee may adopt rules amplifying it to weigh preservation against a subdivision's need to control its resources. Accordingly, section 191.054 does not fall for lack of standards, and prosecutions under the penalty provisions are not per se impermissible, though the validity of any particular permit denial or prosecution must be determined case by case in an appropriate forum.

Citations

Constitutional and statutory authority:

• Section 191.054, Natural Resources Code (permit authority; "best interest of the State of Texas" standard)
• Section 191.092, Natural Resources Code (designation of state archeological landmarks; National Register and fiscal-impact prerequisites)
• Section 191.093, Natural Resources Code (landmark is state property; permit required to alter or demolish)
• Section 191.171, Natural Resources Code (criminal penalty for violations)
• Article 7, section 3, Texas Constitution (tax revenues to support public free schools)
• Article 7, section 6, Texas Constitution (county education lands held in trust for public schools)
• Article 1, section 17, Texas Constitution (no taking or damaging of property without compensation)
• Article 6252-13a, V.T.C.S. (Administrative Procedure and Texas Register Act; contested cases and judicial review)

Cases:

• Texas Antiquities Committee v. Dallas County Community College District, 554 S.W.2d 924 (Tex. 1977) (leading case; permit denial set aside for lack of substantial evidence; delegation standards)
• Love v. City of Dallas, 40 S.W.2d 20 (Tex. 1931) (school funds held in trust may not be diverted; article VII, section 3)
• City of El Paso v. El Paso Community College District, 729 S.W.2d 296 (Tex. 1986) (article VIII, section 1-g(b) exception)
• Board of Regents v. Walker County Historical Commission, 608 S.W.2d 252 (Tex. Civ. App. - Houston [14th Dist.] 1980, no writ) (SAL designation and the permit requirement)
• Southern National Bank of Houston v. City of Austin, 582 S.W.2d 229 (Tex. Civ. App. - Tyler 1979, writ ref'd n.r.e.) (landmark restriction on private hotel damaged property without compensation)
• Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex. 1973) (when public property may be taken for another public use)
• Snellen v. Brazoria County, 224 S.W.2d 305 (Tex. Civ. App. - Galveston 1949, writ ref'd n.r.e.) (public-to-public takings)
• State v. Steck Co., 236 S.W.2d 866 (Tex. Civ. App. - Austin 1951, writ ref'd) (article I, section 17 applies to private property)
• United States v. Gordon, 580 F.2d 827 (5th Cir. 1978) (penalties for rule and order violations)
• Harrington v. Railroad Commission, 375 S.W.2d 892 (Tex. 1964) (legislatively established penalties for order violations)
• Tuttle v. Wood, 35 S.W.2d 1061 (Tex. Civ. App. - San Antonio 1931, writ ref'd) (penalty for violation of administrative order)
• Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) (delegation requires adequate standards)

Prior Attorney General opinions referenced: H-250 (1974); H-620 (1975); H-961 (1977); MW-378 (1981); JM-104 (1983); JM-729 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-958
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0958.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

September 28, 1988

Mr. T. R. Fehrenbach
Chairman
Texas Antiquities Committee
P.O. Box 12276
Austin, Texas 78711

Opinion No. JM-958

Re: Jurisdiction of the State Antiquities Committee over property held by an independent school district (RQ-1404)

Dear Mr. Fehrenbach:

On behalf of the Texas Antiquities Committee you request advice on the authority of the committee to designate school district buildings as state archeological landmarks. Your questions arise because of legal challenges to the committee's attempts to exercise its statutory authority over school district property. See Texas Antiquities Committee v. Dallas County Community College District, 554 S.W.2d 924 (Tex. 1977). We will review the committee's statutory authority and relevant case law before turning to your specific questions.

The committee is created by section 191.011 of the Natural Resources Code, and its powers and duties are set out in the Antiquities Code of Texas, sections 191.001 through 191.174 of that code. See Nat. Res. Code section 191.001. It "shall . . . determine the site of and designate landmarks . . . as provided in Subchapter D" of chapter 191 of the Natural Resources Code. Nat. Res. Code section 191.051(b)(2). Subchapter D provides that:

[s]ites, objects, buildings, artifacts, implements, and locations of historical, archeological, 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 archeological landmarks and are eligible for designation.

Nat. Res. Code section 191.092(a). A structure or building has historical interest if it:

(1) was the site of an event that has significance in the history of the United States or the State of Texas;

(2) was significantly associated with the life of a famous person;

(3) was significantly associated with an event that symbolizes an important principle or ideal;

(4) represents a distinctive architectural type and has value as an example of a period, style, or construction technique; or

(5) is important as part of the heritage of a religious organization, ethnic group, or local society.

Nat. Res. Code section 191.092(b).

Before the committee may designate a structure or building as a state archeological landmark, it must be listed on the National Register of Historic Places. Nat. Res. Code section 191.092(c); see 16 U.S.C. section 470(a). The committee is required to adopt rules establishing criteria for such designations and must consider "any and all fiscal impact on local political subdivisions" before it may designate as a state archeological landmark a building or structure owned by a political subdivision. Nat. Res. Code section 191.092(d), (e).

Landmarks designated under section 191.092 of the code "are the sole property of the State of Texas and may not be removed, altered, damaged, [or] destroyed . . . without a contract with or permit from the committee." Id. section 191.093. This provision has been the focus of conflicts between the committee's role in preserving the historical value of state archeological landmarks owned by school districts, see Attorney General Opinion JM-104 (1983), and the school district's interest in using, altering, or replacing its buildings to carry out its educational purposes. See Texas Antiquities Committee v. Dallas County Community College District, supra; Board of Regents v. Walker County Historical Commission, 608 S.W.2d 252 (Tex. Civ. App. - Houston [14th Dist.] 1980, no writ) (building located on land administered by Board of Regents of the Texas State University System).

Texas Antiquities Committee v. Dallas County Community College District is the leading case on the authority of the Antiquities Committee, and some of your questions are specifically based on it. In the Dallas County case, the Texas Supreme Court set aside an order of the Antiquities Committee denying the Dallas County Community College District a permit to demolish three buildings. The court was divided on both the reasoning and result of this case. An opinion of four judges ruled in favor of the community college district on the ground that a provision of the Antiquities Code was both unconstitutional and unconstitutionally applied, and that the permit denial was not supported by substantial evidence. The chief justice concurred on the basis of the substantial evidence rule and declined to reach any constitutional question. Four judges dissented.

The prevailing opinion of four judges determined that former section 6 of article 6145-9, V.T.C.S., the predecessor to section 191.092(a) of the Natural Resources Code, was unconstitutionally vague and lacked sufficient standards governing the delegation of legislative authority. The predecessor statute declared buildings and locations of historical, archeological, scientific, or educational interest located on lands of political subdivisions to be State Archeological Landmarks. The Antiquities Committee contended only that the Dallas buildings were "of historical interest." Neither the statute nor any rule gave this description more specificity or predictability, and the law did not include the explicit standards necessary to prevent arbitrary and discriminatory enforcement. 554 S.W.2d 924, at 928.

The same opinion also found the Texas Antiquities Act, formerly article 6145-9, V.T.C.S., unconstitutional as applied to the community college buildings because no substantial evidence supported the action of the Antiquities Committee. 554 S.W.2d 924, at 928. The evidence was such that reasonable minds could not have reached the conclusion that the committee must have reached. Restoration of the buildings would require the diversion of public funds held in trust to benefit people in the school district. In addition, the buildings could not be restored except by spending an unreasonable amount of money, and even costly rebuilding would not make them usable for educational purposes. 554 S.W.2d 924, at 929.

In answer to the argument of the Antiquities Committee that a political subdivision has no contract or property rights protectable against the committee's powers, the opinion pointed out that a state agency could not divest property and contract rights in violation of specific constitutional provisions. Love v. City of Dallas, 40 S.W.2d 20 (Tex. 1931); Milam County v. Bateman, 54 Tex. 153 (1880).

We turn to your seven questions.

You first ask whether the committee's designation of a public school building as a state archeological landmark (SAL) would divert dedicated educational funds or property to non-educational purposes in violation of article VII, sections 3 and 6, of the Texas Constitution.

You ask as your second question whether the committee's denial of a school district's request for a permit to demolish a designated building would divert educational funds or property to non-educational purposes in violation of article VII, sections 3 and 6, of the Texas Constitution.

Article VII, section 3, of the constitution requires that certain tax revenues shall be used to support the "public free schools." See Attorney General Opinion H-961 (1977). Article VII, section 6, provides that lands granted to the counties for educational purposes are the property of the counties, with title thereto vested in the counties. The lands and proceeds generated by the sale thereof are to be held by the counties "as a trust for the benefit of public schools therein." See Attorney General Opinion JM-729 (1987).

The prevailing opinion in Texas Antiquities Committee v. Dallas County Community College District, in saying that constitutional prohibitions would restrain one state agency from divesting vested property and contract rights of another agency of the state, cited and discussed Love v. City of Dallas, supra, and Milam County v. Bateman, supra, cases relying on article VII, sections 3 and 6, respectively. In Milam County v. Bateman, the court stated that the state may not arbitrarily take school land from the county and give it to private parties. Milam County, 54 Tex. 153, at 166. In Love v. City of Dallas, the Supreme Court found violative of article VII, section 3, legislation which required a school district to use its funds to educate persons who did not reside in the district. The school funds and properties were held in trust by the city, school district, county, or other statutory agency to be used for the benefit of the school children of the community and the legislature could not devote them to any other purpose. Love, 40 S.W.2d 20, at 26. See also City of El Paso v. El Paso Community College District, 729 S.W.2d 296 (Tex. 1986) (providing that article VIII, section 1-g(b), of Texas Constitution creates exception from article VII, section 3 prohibition against school tax funds being used for non-educational purposes).

We turn to your first question. The designation of a school building as an SAL serves to retain the status quo and to subject the building to the committee's jurisdiction and to the permit requirement in section 191.093 of the Natural Resources Code. See Board of Regents v. Walker County Historical Commission, 608 S.W.2d 252 (Tex. Civ. App. - Houston [14th Dist.] 1980, no writ); Attorney General Opinion MW-378 (1981). Thus, it is certainly possible that the designation of a building would not change the district's use of dedicated educational funds or property. We cannot, however, rule out the possibility that on the facts of some cases the SAL designation will have the effect of making such a diversion, for example, by requiring the school to maintain a building that can no longer be used for educational purposes.

The answer to your second question will depend on the facts of the particular situation, and it cannot be answered in an Attorney General Opinion. The court in Texas Antiquities Committee v. Dallas County Community College District indicated that a constitutional question would not have arisen if funds other than public school money had been available. 554 S.W.2d 924, at 928. Moreover, on the facts of that case, the buildings could not have been made usable for educational purposes. Different facts presumably could yield a different conclusion.

Your third question is as follows:

Is the Committee's reading of the Dallas County case correct in that where funds not subject to the "public trust" are available, the SAL designation and ownership of the building's intrinsic value may not be disturbed absent a showing of unsuitability for educational purposes?

The Antiquities Committee had not designated any of the three buildings at issue in the Dallas County case as state archeological landmarks. 554 S.W.2d 924, at 926. Before the Supreme Court issued its opinions in that case, this office read the statute itself to designate certain publicly-owned properties as state archeological landmarks. See Attorney General Opinions H-620 (1975); H-250 (1974). Since the Dallas County case concerned the denial of a demolition permit, we will answer your question in terms of the committee's denying a permit to demolish a building.

We do not agree with your characterization of the supreme court's decision. Five judges agreed that "this particular determination of the Antiquities Committee is not supported by substantial evidence." 554 S.W.2d 924, at 931 (concurring opinion). This was the basis of the majority decision. The committee acted arbitrarily and without a sound basis with respect to the Dallas buildings, as shown by the reasons set out in the first opinion. In addition to evidence on the issues you mention, the court cited evidence that the buildings could be restored only by complete reconstruction from the foundation up at a cost greater than new construction and that the outside walls might collapse if reconstruction were undertaken. Similar evidence, as well as facts not before the court in the Dallas County case, could be relevant to other exercises of the committee's permit power over SAL-designated school district buildings. As this office stated in Attorney General Opinion H-620 (1975), a site may be "of such slight historic interest and of such little utility" that denial of a permit would be an unreasonable and arbitrary exercise of the committee's power. Whether other actions with respect to school buildings are supported by substantial evidence must be determined on a case-by-case basis by an adjudicator with power to make fact-findings, and cannot be determined in an attorney general opinion.

Your fourth question is as follows:

If the answer to one, two and/or three is no, then to what extent, if any, may the Committee constitutionally and statutorily subject public school properties to its jurisdiction?

To the extent that this question can be answered in the abstract, it has been answered in the discussion preceding your questions and the discussion of your first three questions.

Your fifth question is as follows:

If a public school district allows a SAL designation of one of its properties, has the school district waived its right to assert the diversion principle in future proceedings (e.g., demolition permit proceedings)?

The Antiquities Committee is subject to the Administrative Procedure and Texas Register Act, article 6252-13a, V.T.C.S., and the Natural Resources Code, section 191.021(a). A "contested case" under that Act includes a proceeding in which an agency decides whether or not to issue a permit. See V.T.C.S. 6252-13a, section 3(2), (3). Your request letter in fact states that the committee deals with requests for demolition of SALs as contested cases under the Administrative Procedure and Texas Register Act. See also Attorney General Opinion MW-378 (1981) (committee's decision in permit application cases will be tested under the substantial evidence rule). The Administrative Procedure and Texas Register Act gives parties to a contested case notice and an opportunity for hearing as well as a right to judicial review after exhaustion of administrative remedies. V.T.C.S. art. 6252-13a, sections 13, 19.

You next ask whether the committee's denial of a demolition permit to a public school district constitutes an unconstitutional taking of property without compensation. Article I, section 17, of the Texas Constitution provides in part:

No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . . . .

In Southern National Bank of Houston v. City of Austin, 582 S.W.2d 229 (Tex. Civ. App. - Tyler 1979, writ ref'd n.r.e.), a case involving zoning of a privately-owned hotel as a historic landmark, the court held that the city imposed a servitude on property when it restricted the owners from reconstructing, altering, removing, or demolishing the building without a permit. Since the city made no provision for any compensation to the owners, the court held that there had been a "damaging" of the property for public use without adequate compensation in violation of article I, section 17, of the constitution. Id. at 238. Thus, designation of private property as a state archeological landmark or denial of a demolition permit for private property may invoke the requirement for adequate compensation in article I, section 17.

Article I, section 17, has generally been read, however, as applying to the taking, damaging, or destruction of private property. See, e.g., State v. Steck Co., 236 S.W.2d 866, 869 (Tex. Civ. App. - Austin 1951, writ ref'd). Public property may be taken for another public use if there is express or implied legislative authority to do so, if the additional public use will not materially interfere with the existing use, or if the subsequent taking is for a public purpose of greater importance which cannot be accomplished in any other practical way. Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex. 1973); Snellen v. Brazoria County, 224 S.W.2d 305 (Tex. Civ. App. - Galveston 1949, writ ref'd n.r.e.). The committee has statutory authority to designate school buildings as SALs and to grant or deny demolition permits to the school district. If it exercises these powers in compliance with all applicable provisions of law, it will not damage or take property without compensation in violation of article I, section 17, of the Texas Constitution. Although it has been argued as a policy matter that governmental bodies should receive compensation when their property is taken, this view has not been adopted in Texas. See J. M. Payne, Intergovernmental Condemnation as a Problem in Public Finance, 61 Tex. Law Rev. 949 (1983).

Your last question is as follows:

There being no regulatory standards concerning the approval or denial of permits, are the penal provisions of the Code unconstitutional on their face since the legislature has delegated discretionary authority in this area without statutory standards?

Section 191.171 of the Natural Resources Code establishes a criminal penalty for violations of the provisions of chapter 191 of the code. It states in part:

(a) A person violating any of the provisions of this chapter is guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than $50 and not more than $1,000, by confinement in jail for not more than 30 days, or by both.

Nat. Res. Code section 191.171(a).

The Natural Resources Code provides that landmarks established under section 191.091 of the code may not be removed, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit from the committee. Nat. Res. Code section 191.093. See also Nat. Res. Code section 191.095. The committee "shall . . . consider the requests for and issue the permits provided for" in section 191.054 of the Natural Resources Code. Nat. Res. Code section 191.051(b)(4). Section 191.054 provides in part:

(a) The committee may issue a permit to other state agencies or political subdivisions or to qualified private institutions, companies, or individuals, for the survey and discovery, excavation, demolition, or restoration of or the conduct of scientific or educational studies at, in, or on landmarks, or for the discovery of eligible landmarks on public land if it is [in the best interest of the State of Texas].

(b) Restoration shall be defined as any rehabilitation of a landmark excepting normal maintenance or alterations to nonpublic interior spaces. (Emphasis added.)

Nat. Res. Code section 191.054.

Violations of administrative rules and orders may be punishable by a legislatively-established penalty. United States v. Gordon, 580 F.2d 827 (5th Cir. 1978); Harrington v. Railroad Commission, 375 S.W.2d 892 (Tex. 1964); Tuttle v. Wood, 35 S.W.2d 1061 (Tex. Civ. App. - San Antonio 1931, writ ref'd). Section 191.171 of the Natural Resources Code establishes such a penalty.

An invalid administrative order may not, however, be enforced by a criminal penalty. Your last question thus raises the issue of whether section 191.054 is invalid because it lacks regulatory standards concerning the approval or denial of permits.

When the legislature delegates to an agency the authority to adopt rules and orders, it must prescribe adequate standards to guide the discretion it confers. Texas Antiquities Committee v. Dallas County Community College District, supra; Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978); Tex. Const. art. II, section 1; art. III, section 1. The Antiquities Committee has been delegated legislative authority to grant permits, subject to the standard that, in the opinion of the committee, the permit is in "the best interest of the State of Texas." Nat. Res. Code section 191.054. We must therefore determine whether the quoted language provides a sufficient legislative standard to control the committee's exercise of discretion and to guard against arbitrary and unfair decisions on permit applications.

The standard, "in the best interest of the State of Texas," was included in the predecessor of section 191.054 when the Antiquities Code was adopted in 1969. Acts 1969, 61st Leg., 2d C.S., ch. 2, section 10, at 101. As adopted, the permit provision authorized the committee to issue permits to state agencies, institutions, and qualified private parties for the taking, salvaging, excavation, restoring, or conducting of scientific or educational studies at, in, or on State Archeological Landmarks as in the opinion of the Antiquities Committee would be in the best interest of the State of Texas.

This provision did not originally appear to contemplate the alteration or demolition of a public building which had been designated as a State Archeological Landmark. It was more relevant to activities such as salvaging or restoration that were consistent with the purpose of historical preservation set out in the code:

It is the public policy and in the public interest of the State of Texas to locate, protect, and preserve all sites, objects, buildings, pre-twentieth century shipwrecks, and locations of historical, archeological, educational, or scientific interest . . . .

Nat. Res. Code section 191.002. Thus, in the context of the original Antiquities Code, the cited standard could be read together with the purpose clause to require the committee's permit decisions to serve the state's best interest relative to historical preservation. (See generally cases from other states construing "best interest" language in related contexts.)

Moreover, the adoption of the Antiquities Code was precipitated by the state's efforts to reclaim 16th century artifacts removed by a salvage company from a Spanish galleon which sank off the shore of Texas. The emergency clause of the bill adopting the code stated in part:

The fact that irreparable damage and harm is rapidly being done to the archeological and historical heritage of the State of Texas and its citizens, and that historical and archeological sites, and treasures on public lands are without adequate legal protection and supervision and are being destroyed and damaged without lawful authority, create an emergency . . . .

Acts 1969, 61st Leg., 2d C.S., ch. 2, section 23, at 103.

Thus, the "best interest" standard was adopted by a legislature anxious to stop private interests from damaging the state's archeological and historical resources and imposed a duty on the committee to make permit decisions that would serve the state's interests in such resources.

The "best interest" language has not changed, while other provisions of the Antiquities Code have been amended to acknowledge that other important public interests exist in the governmental functions carried out by political subdivisions. The committee must now consider "any and all fiscal impact" on a local political subdivision before designating a building or structure which it owns as a state archeological landmark. Nat. Res. Code section 191.092(e). See also Nat. Res. Code section 191.021(b) (procedure for considering educational purpose of higher education buildings in SAL designation). Moreover, now that section 191.054 expressly authorizes the committee to issue a demolition permit for a building previously designated as a state archeological landmark, the committee presumably has a duty to consider the applicant's reasons why such a building should be demolished and not preserved. The "best interest" standard, as originally understood, provides the committee little guidance when it has to reconcile the state's interest in historical preservation with a political subdivision's competing interest in controlling the use of its real property to carry out its own legislatively-imposed responsibilities.

In Texas Antiquities Committee v. Dallas County Community College District, the prevailing opinion of the supreme court included the following discussion of standards that should accompany the legislature's delegations of powers to state agencies:

Depending upon the nature of the power, the agency, and the subject matter, varying degrees of specific standards have been required in testing the reasonable breadth of statutes. 1 Sutherland, Statutory Construction, section 4.05 (4th ed. 1975); Jordan v. State Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (1960). Sound reasons support the rule that some reasonable standard is essential to the constitutionality of statutory delegations of powers to state boards and commissions. . . . We adhere to the settled principle that statutory delegations of power may not be accomplished by language so broad and vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application."

554 S.W.2d at 927-28. The same opinion of the court considered the argument that administrative standards in the form of published rules could be substituted for statutory standards. 554 S.W.2d at 928. The opinion stated that in the present case no standard or criteria by statute or rule provided safeguards for the affected parties.

As the Antiquities Code has been amended to deal with the legal questions that arose in the Dallas County case, the legislative intent underlying the code has changed to acknowledge that public interests other than historical preservation may be relevant in particular permit application cases. The "best interest" standard is stated in language broad enough to incorporate the modifications in the legislative intent brought about by amendments to the Antiquities Code (an amendment and the old law must be construed as a harmonious whole). Relying on the argument raised in the Dallas County case, we believe the committee may adopt rules which amplify the "best interest" standard to give weight to the public interest of political subdivisions in controlling their resources as necessary to perform their constitutionally and legislatively imposed duties. The "best interest of the State of Texas" in a particular case could reasonably be an interest arrived at by weighing the public interest in preserving archeological resources against other important public interests served by the governmental entities which have custody of archeological resources.

Accordingly, we do not believe that section 191.054 must fall for lack of regulatory standards or that prosecutions under section 191.174 for violation of the permit requirements are impermissible. Whether any permit denial is a valid agency action and whether any individual is guilty of a violation under section 191.174 must be determined on a case-by-case basis in an appropriate forum.

SUMMARY

Designation by the State Antiquities Committee of a school building as a state archeological landmark could divert dedicated education funds or property to non-educational purposes in violation of article VII, sections 3 and 6, of the Texas Constitution, depending on the facts of the particular case. Whether the committee's denial of a school district's request for a permit to demolish a designated building would cause such a diversion of educational resources would have to be decided on a case-by-case basis, considering the facts of each particular situation, and subject to review by the courts for substantial evidence to support the committee's decision. The committee's decisions in permit application cases are contested cases under the Administrative Procedure and Texas Register Act and the applicants for permits have a right under that statute for judicial review of the committee's decision.

The committee's denial of a demolition permit to a school district does not constitute an unconstitutional taking of property without compensation in violation of article I, section 17, of the Texas Constitution.

Section 191.054 of the Natural Resources Code, which authorizes the committee to issue a demolition permit for state archeological landmarks if "it is the opinion of the committee that the permit is in the best interest of the State of Texas," is not invalid for lack of standards to guide the committee's exercise of delegated legislative power. The "best interest" standard may be made more specific by reading it in reference to other provisions of the Antiquities Code which evidence the legislature's intent for exercise of the committee's permit power.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General