Can a Texas community college district get federal surplus land for a park or recreation use?

Plain-English summary

Texas Southmost College District had a piece of land in its sights. Roughly 18.76 acres next to the district's existing property — already improved with a soccer field, a baseball field, and a recreation center — was available from the federal government through the Federal Lands to Parks Program, which lets the Secretary of the Interior transfer surplus federal real property to a state or its political subdivisions for use as a public park or recreation area. The district wanted to acquire the land and use it for recreation by both students and the surrounding community, and State Senator Eddie Lucio, Jr. asked the AG whether state law allowed both the acquisition and that designated use.

The AG first confirmed eligibility and authority to acquire. A public junior college district is a political subdivision of the state — indeed, a "school district" within the meaning of the constitution — and so is eligible to receive land under the federal program. On the question of authority, the AG traced the Education Code: while the Higher Education Coordinating Board has general control of public junior colleges, all authority not vested in the Board or the Texas Education Agency is retained locally by each district, and a junior college district's governing board is governed by the general law for independent school districts where applicable. The trustees of an independent school district have the exclusive power to govern the district's schools and are expressly authorized to acquire and hold real and personal property, with no provision prohibiting acquisition from the federal government. So the district could generally acquire the land through the program.

On the question of use, the AG turned to the rules for property conveyed or donated for the public schools, which vests such property in the trustees, who may use it for a purpose the donor designates (consistent with the schools' lawful purposes) or, if the donor designates none, for any legal purpose. The catch the AG emphasized: the use must serve a lawful purpose of the district, and to the extent public funds are used to acquire the land, the district must follow the statutory and constitutional rules on public funds. Texas courts have long recognized that boards of trustees have broad discretion to manage school property, subject to court review only for abuse, and an Education Code provision directs boards to establish working relationships with other public entities to make effective use of community resources. Allowing the public to use the district's park land and recreational facilities when the district does not need them appeared to the AG to further that goal — but the AG stressed it was for the district itself to determine, in the first instance, whether designating the land for public recreational use serves a public purpose of the district. Subject to that, the AG concluded no state law prohibits the district from acquiring the land and designating it for public recreational use.

Currency note

This opinion was issued in 2019. 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.

What the opinion meant for those who asked

Junior college district boards of trustees: At the time of the opinion, the AG read the Education Code to give the trustees express authority to acquire and hold real property, including land from the federal government, with no state-law bar to acquiring through the Federal Lands to Parks Program.

Districts planning public recreational use: The opinion explained that property conveyed for the public schools may be used for a designated purpose consistent with the schools' lawful purposes or, absent a designation, any legal purpose, but the use must serve a public purpose of the district — a determination the AG left to the district in the first instance.

Communities sharing school recreation facilities: The AG noted that letting the public use district park land and recreation facilities when not needed by the district appeared to further the statutory goal of making effective use of community resources, consistent with cases recognizing broad board discretion over school property.

Common questions

Can a Texas community college district acquire federal surplus land?
The AG concluded it generally can. A public junior college district is a political subdivision eligible under the Federal Lands to Parks Program, and Education Code provisions give its trustees express authority to acquire and hold real property, with nothing barring acquisition from the federal government.

Can the district use the land as a public park or recreation area?
The AG explained no state law prohibits it, provided the use serves a public purpose of the district and complies with the terms of the transfer. Property conveyed for the public schools may be used for a designated purpose consistent with the schools' lawful purposes, or any legal purpose if the donor designates none.

Who decides whether the recreational use serves a public purpose?
The AG said it is for the district to determine in the first instance whether designating the land for public recreational use serves a public purpose of the district.

Can the public use the district's recreation facilities?
The AG noted that allowing the public to use district park land and facilities when not needed by the district appeared to further the Education Code's direction to make effective use of community resources, citing a case upholding a district's decision to let a booster club use its baseball field as serving a public purpose.

Are there limits if the district spends public money on the land?
Yes. The AG noted that to the extent the district uses public funds to acquire the land, it must comply with the statutory and constitutional requirements governing the use of public funds.

Background and statutory framework

The request concerned the Texas Southmost College District's plan to acquire about 18.76 acres through the Federal Lands to Parks Program (40 U.S.C. § 550(b)(2)(C), (e)(2)), which authorizes transfer of surplus federal property to a state or political subdivision for use as a public park or recreation area. The AG determined the district is eligible because a public junior college district is declared a school district within the meaning of article VII, section 3 of the Texas Constitution (Tex. Educ. Code § 130.122(f)) and is a political subdivision (Wasson Interests, Ltd. v. City of Jacksonville).

On acquisition authority, the AG explained that the Higher Education Coordinating Board has general control of public junior colleges (Tex. Educ. Code § 130.001(a)), but authority not vested in the Board or the Texas Education Agency is retained locally (§ 130.002), and a junior college district's board is governed by the general law for independent school districts where applicable (§ 130.084(a)). Trustees of an independent school district have the exclusive power to govern the district's schools (§ 11.151(b)) and may acquire and hold real and personal property (§ 11.151(a)), with no provision barring acquisition from the federal government (and the Board's authority to accept federal donations under §§ 61.067, .068 is not exclusive). On use, property conveyed or donated for the public schools vests in the trustees (§ 11.156(a)) and may be used for a donor-designated purpose consistent with the schools' lawful purposes or, absent designation, any legal purpose (§ 11.156(b)); the use must serve a lawful district purpose (Love v. City of Dallas), and use of public funds must comply with applicable requirements (Tex. Att'y Gen. Op. No. KP-0204 (2018)). Texas courts afford boards broad discretion over school property, reviewable only for abuse (Kami v. Camp; Nacogdoches Indep. Sch. Dist. v. Adams), and section 11.1511(b) directs boards to establish working relationships with other public entities to make effective use of community resources; allowing public use of park land and facilities appeared to further that goal (Royse Indep. Sch. Dist. v. Reinhardt). The AG concluded the public-purpose determination is for the district in the first instance (§ 11.156(b)), and that no state law prohibits the district from acquiring the land and designating it for public recreational use if the use serves a public purpose of the district.

Citations

Statutory and constitutional provisions:

• 40 U.S.C. § 550(b)(2)(C), (e)(2)
• Tex. Educ. Code § 11.151(a); § 11.151(b); § 11.156; § 11.156(a); § 11.156(b); § 11.1511(b); § 130.001(a); § 130.002; § 130.084(a); § 130.122(f); §§ 61.067, .068
• Tex. Const. art. VII, § 3

Cases and Attorney General opinions:

• Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429-30 (Tex. 2016)
• Love v. City of Dallas, 40 S.W.2d 20, 26 (Tex. 1931)
• Kami v. Camp, 78 S.W.2d 1046, 1047 (Tex. Civ. App.-San Antonio 1935, writ dism'd)
• Nacogdoches Indep. Sch. Dist. v. Adams, 36 S.W.2d 567, 569 (Tex. Civ. App.-Beaumont 1931, no writ)
• Royse Indep. Sch. Dist. v. Reinhardt, 159 S.W. 1010, 1011 (Tex. Civ. App.-Dallas 1913, writ ref'd)
• Tex. Att'y Gen. Op. No. KP-0204 (2018)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0236
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0236.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 22, 2019

The Honorable Eddie Lucio, Jr. Opinion No. KP-0236
Chair, Committee on Intergovernmental
Relations Re: Whether the Texas Southmost College
Texas State Senate District may acquire and hold title to land
Post Office Box 12068 from the General Services Administration
Austin, Texas 78711-2068 through the Federal Lands to Parks Program
(RQ-0239-KP)

Dear Senator Lucio:

     You ask whether the board of trustees for the Texas Southmost College District ("District")

may acquire real property through the Federal Lands to Parks Program and whether it may
designate the land acquired for public recreational purposes. [1] The Federal Lands to Parks Program
authorizes the Secretary of the Interior to transfer to a state or political subdivision surplus real
property needed for use as a public park or recreation area. 40 U.S.C. § 550(b)(2)(C), (e)(2). As
a public junior college district, Texas Southmost College District is a political subdivision of the
State and is thereby eligible to receive land under the Federal Lands to Parks Program. See TEX.
EDUC. CODE § 130.122(f) ("Each junior college district ... is hereby declared to be, and constituted
as, a school district within the meaning of Article VII, Section 3, of the Texas Constitution.");
Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429-30 (Tex. 2016) (stating school
districts are political subdivisions). You explain that the District seeks to acquire 18.76 acres of
land adjacent to property currently owned by the District, and it plans to use that property for
recreational purposes, including using the property's preexisting soccer field, baseball field, and
recreation center for both school and community purposes. Request Letter at 1-2.

    You first ask whether the District is authorized to acquire real property through the Federal

Lands to Parks Program. Id. at 1. Answering your question requires analyzing the authority
granted to the District. The Higher Education Coordinating Board ("Board") exercises "general
control of the public junior colleges of Texas." TEX. EDUC. CODE § 130.001(a). All authority not
vested in the Board or the Texas Education Agency "is reserved and retained locally in each of the

    [1] See Letter from Honorable Eddie Lucio, Jr., Chair, Senate Comm. on Intergov'tl Relations, to Honorable

Ken Paxton, Tex. Att'y Gen. at 1 (July 23, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-
opinion-rqs ("Request Letter").

respective public junior college districts" or their governing boards. Id. § 130.002. [2] Furthermore,
the "governing board of a junior college district shall be governed ... by the general law governing
the establishment, management, and control of independent school districts insofar as the general
law is applicable." Id. § 130.084(a). In general, the trustees of an independent school district
"have the exclusive power and duty to govern and oversee the management of the public schools
of the district." Id. § 11.151(b). The Legislature expressly provided that the trustees of an
independent school district "may acquire and hold real and personal property." Id. § 11.151(a).
And no provision prohibits acquiring land from the federal government. Thus, the District may
generally acquire real property through the Federal Lands to Parks Program.

    You also ask whether state law prevents the District from designating the land acquired for

public recreational use. Request Letter at 1. Section 11.156 of the Education Code provides: "A
conveyance, devise, or bequest of property for the benefit of the public schools made by anyone
for any ... district, if not otherwise directed by the donor, vests the property in the ... board of
trustees ...." TEX. EDUC. CODE § 11.156(a). The District may use such property:

              (1) for any purpose designated by the donor that is in keeping with
              the lawful purposes of the schools for the benefit of which the
              donation was made; or

              (2) for any legal purpose if a specific purpose is not designated by
              the donor.

Id. § 11.156(b). Accordingly, while the District's use of any property acquired or received by its
trustees must comply with the terms of the transfer, the use must also serve a lawful purpose of
the District. See Love v. City of Dallas, 40 S.W.2d 20, 26 (Tex. 1931) ("[T]he school property ...
should vest in certain trustees or officers ... for the use and benefit of the public free schools in
such city or town." (quotation marks omitted)). Furthermore, to the extent the District uses public
funds to acquire the land in question, that District must comply with any statutory and
constitutional requirements regarding the use of public funds. See Tex. Att'y Gen. Op. No.
KP-0204 (2018) at 2.

    You tell us the District plans to designate the land it wishes to acquire through the Federal

Lands to Parks Program for recreational use by both the public and the Texas Southmost College
District community. See Request Letter at 2. Texas courts have concluded that a board of trustees
possesses broad discretion in managing school property, provided the board acts consistent with
statutory requirements. See Kami v. Camp, 78 S.W.2d 1046, 1047 (Tex. Civ. App.-San Antonio
1935, writ dism'd) ("[I]n all other matters within those powers [school boards] have supreme
control, subject to supervision by the courts ...."); Nacogdoches Indep. Sch. Dist. v. Adams, 36
S.W.2d 567, 569 (Tex. Civ. App.-Beaumont 1931, no writ) ("Beyond question, the trustees of
our public schools are vested with discretion in the management, control, and protection of the
school property committed to their care, and the courts should not review this discretion except

    [2] The Legislature gave the Board express authority to contract with and accept donations from "any agency

of the United States," but no provision in the Education Code suggests this authority is reserved exclusively for the
Board to the exclusion of individual junior college districts. TEX. EDUC. CODE §§ 61.067, .068.

upon a showing of abuse."). Additionally, section 11.1511 of the Education Code establishes the
specific powers and duties of a board of trustees of an independent school district and provides
that the board shall "seek to establish working relationships with other public entities to make
effective use of community resources and to serve the needs of public school students in the
community." TEX. EDUC. CODE § 11.1511(b). Allowing the public to use the District's park land
and recreational facilities when not needed by the District would appear to further this "effective
use of community resources." Id.; see Royse Indep. Sch. Dist. v. Reinhardt, 159 S.W. 1010, 1011
(Tex. Civ. App.-Dallas 1913, writ ref'd) (concluding a school district could allow a booster club
to use its baseball field and that doing so served a public purpose). However, it is for the District
to determine in the first instance whether designating land for recreational use by the public and
the District community serves a public purpose of the District. See TEX. EDUC. CODE § 11.156(b).
Thus, no state law prohibits the board of trustees for the Texas Southmost College District from
acquiring real property from the Federal Lands to Parks Program and designating it for public
recreational use, provided the use serves a public purpose of the District.

                                 SUMMARY

                  No state law prohibits the board of trustees for the Texas
          Southmost College District from acquiring property from the
          Federal Lands to Parks Program and designating the land for public
          recreational purposes if the use serves a public purpose of the
          District.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee