Untitled Texas Attorney General Opinion

GREG A B B O T T

July 26,2007

The Honorable Jose R. Rodriguez Opinion No. GA-0558

El Paso County Attorney

500 East San Antonio, Room 503 Re: Whether a home-rule municipality may lease

El Paso, Texas 79901 or sell a portion of an existing city park to a

school district (RQ-0566-GA)

Dear Mr. Rodriguez:

On behalf of the Ysleta Independent School District (the "District"), you ask several

questions about a home-rule municipality's authority to lease or sell a portion of an existing city park

to a school district.' You explain that the District currently seeks to secure real property on which

to construct new schools in the City of El Paso (the "City"), but it has been unable to acquire useable

land. See Request Letter, supra note 1, at 2. After study, the District is "contemplating securing the

use of city [parkland] through a long[-]term lease or conveyance from the City . . . for construction

of a school." Id. You further explain that the proposal would provide the District

with much needed real property in a strategic location, at what could

be a nominal cost. The City . . . , in turn, benefits from this

arrangement by allowing its citizens secure access [to] and use of

certain facilities located within the school campus at no added

expense to the municipal taxpayer. Both the City . . . and [the

District] have considered the potential benefits of this arrangement

and would like to move forward with securing this land and

construction of school facilities. . . . There does not appear to be any

deed restrictions on the [City's] authority to convey the land or on the

use of the [parkland].

Id. ;see also id. at 3 (explaining that the land was conveyed in fee simple to the City as the result of

the subdivision-platting process and "cannot be subject to any reservations, restrictions, or

easements").

'See Letter from Honorable Jose R. Rodriguez, El Paso County Attorney, to Honorable Greg Abbott, Attorney

General of Texas, at 1 (Jan. 29,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)

[hereinafter Request Letter].

The Honorable Josi R. Rodriguez - Page 2 (GA-0558)

Based on these facts, you ask four questions:

1. Does a home[-]rule municipality have the authority to enter into

a long[-]term lease with an independent school district,

covering a portion of an existing city park, and to include in the

instrument the right of the school district to renew the lease for

an indefinite period (exceeding 40 years) at the end of the

primary term without conducting an election or publishing

notice and taking bids?

2. Does a home[-]rule municipality have the authority to convey

fee simple title to a portion of an existing city park to an

independent school district without conducting an election or

publishing notice and taking bids as might be required in the

event of sale to a private party?

3. If the answer to either 1 or 2 above is in the affirmative, what

steps are required of the home[-]rule municipality and the

independent school district to [effect] the conveyance or lease

of city [parkland] to an independent school district for the

purpose of [constructing] a public school?

4. If the answer to number 1 above is in the affirmative, would the

independent school district have the authority to expend school

district funds for the purpose of constructing a school building

and related facilities upon the leased property?

Id. at 1.

I. Relevant Statutes

As a home-rule municipality, the City "possess[es] the full power of self government and

look[s] to the Legislature not for grants of power, but only for limitations on [its] power." Dallas

Merch. 's & Concessionaire 's Ass 'n v. City of Dallas, 852 S.W.2d 489,490-9 1 (Tex. 1993) (citing

MJR's Fare of Dallas v. City of Dallas, 792 S.W.2d 569, 573 (Tex. App.-Dallas 1990, writ

denied)). In our opinion, four statutes have the potential to limit the City's home-rule authority with

respect to the issue you raise: (1) Local Government Code section 253.001; (2) Local Government

Code section 272.001; (3) Local Government Code section 272.005; and (4) Parks and Wildlife

Code chapter 26. We will lay out the relevant provisions in turn.

First, section 253 .OO 1 ofthe Local Government Code authorizes a municipal governing body

to "sell and convey land or an interest in land that the municipality owns, holds, or claims as a public

. . . park." TEX.LOC.GOV'TCODEANN.tj 253.001(a) (Vernon 2005). The municipality generally

may not sell parkland unless the sale is approved by a majority of those voting in an election

The Honorable Jose R. Rodriguez - Page 3 (GA-0558)

considering the issue. See id. $ 253.001(b); see also id. $ 253.001(e), ( f ) , (i) (listing conveyances

that are not subject to election requirements). And parkland that is approved for sale may be sold

"by public auction or by sealed bid." Id. $ 253.008(a).2 Section 253.001 does not apply to a lease

of land, nor does it apply to a municipality's conveyance of parkland to an entity that has the power

of eminent domain, such as a school district. See Walker v. City of Georgetown, 86 S.W.3d 249,

257-58 (Tex. App.-Austin 2002, pet. denied) (finding that section 253.001 does not apply to the

lease of land); Bolton v. City of Waco, 447 S.W.2d 71 8,720 (Tex. Civ. App.-Waco 1969, writ ref d

n.r.e.) (finding that section 253 .OO 1 does not apply to a conveyance to an entity with eminent-domain

powers); accord City ofSan Antonio v. Congregation of Sisters of Charity, 360 S.W.2d 580,582-83

(Tex. Civ. App.-Waco 1962, writ ref d n.r.e.); El Paso County v. City ofEl Paso, 357 S.W.2d 783,

786-87 (Tex. Civ. App.-El Paso 1962, no writ); see also TEX.EDUC.CODEANN. $ 11.155(a)

(Vernon 2006) (authorizing a school district to exercise eminent-domain powers). Section 253.001

thus is not relevant to any of the issues you raise.

Second, section 272.00 1 regulates a political subdivision's sale or exchange of real property,

but it does not apply to a lease. See TEX.LOC. GOV'TCODEANN.$ 272.001 (Vernon 2005); Walker,

86 S.W.3d at 258-60 (finding that section 272.001 does not apply to the lease of land). A

municipality is a political subdivision of the state. See City of Galveston v. State, 217 S.W.3d 466,

473-74 (Tex. 2007); see also Bowling v. City of El Paso, 525 S.W.2d 539, 540-41 (Tex. Civ.

App.-El Paso 1975, writ ref d n.r.e.) (applying section 272.001's statutory predecessor, article

542 1c- 12 ofthe Revised Civil Statutes, to land owned by a municipality). Under section 272.001 (b),

a real property interest conveyed to a governmental entity with eminent-domain powers, such as a

school district, is subject to one requirement: It "may not be conveyed, sold, or exchanged for less

than the fair market value of the land or interest unless the conveyance, sale, or exchange is with one

or more abutting property owners who own the underlying fee simple." TEX.LOC.GOV'TCODE

ANN.5 272.001(b) (Vernon 2005); see also id. (setting out the process by which fair market value

is to be determined); TEX.EDUC.CODEANN.5 11.155(a) (Vernon 2006).

Third, another provision in chapter 272, which the Legislature recently adopted, expressly

applies only to leases of real property between political subdivisions. See Act of May 14,2007,80th

Leg., R.S., H.B. 261 8, $ 1 (to be codified at TEX.LOC.GOV'TCODEANN.$272.005); see also H.J.

OF TEX.,80th Leg., R.S. 2580-8 1 (2007) (reporting the bill's passage in the House on third reading);

S.J. OFTEX.,80th Leg., R.S. 1984 (2007) (reporting the bill's passage in the Senate on third reading).

The new provision, which will be codified at section 272.005, permits a political subdivision to

promote its public purpose by leasing property to another political subdivision in certain

circumstances:

(a) To promote a public purpose of the political subdivision,

a political subdivision may:

2While chapter 253 contains other provisions relating to the sale or lease of municipal real property, none apply

here. See, e.g., TEX.LOC.GOV'TCODEANN. §§253.006 (Vernon 2005) ("Lease of Municipal Hospital or Swimming

Pool"), 253.009 ("Conveyance ofAdjoining Property to Municipal Development Corporation"), 253.0 1 1 ("Conveyance

to Nonprofit Corporation for Public Use").

The Honorable Jose R. Rodriguez - Page 4 (GA-0558)

(1) lease property owned by the political subdivision to

another political subdivision . . . ;

(b) In acting under Subsection (a), the political subdivision:

(1) shall determine the terms of the lease . . . so as to

promote and maintain the public purpose;

(2) may provide for the lease of the property . . . at less

than fair market value; and

(3) is not required to comply with any competitive

purchasing procedure or any notice and publication requirement

imposed by this chapter or other law.

Act of May 14,2007,80th Leg., R.S., H.B. 2618,s 1 (to be codified at TEX.LOC.GOV'TCODEANN.

$272.005); see also TEX.CONST.art. 111,s 52(a). Section 272.005 took effect immediately upon the

Governor's approval. See H.J. of Tex., 80th Leg., R.S. 6652 (2007). As we have indicated, a

municipality is a political subdivision of the state. See City of Galveston, 217 S.W.3d at 473-74.

A school district also is a political subdivision of the state. See City of Seagoville v. Lytle, No.

05-06-01016-CV, 2007 WL 1696213, at *4 (Tex. App.-Dallas June 13,2007, no pet. h.); Watts v.

Double Oak Indep. Sch. Dist., 377 S.W.2d 779, 780 (Tex. Civ. App.-Fort Worth 1964, no writ).

Fourth, chapter 26 of the Parks and Wildlife Code protects public parks and recreational

lands by regulating the use or taking of parkland, among other proper tie^.^ See generally TEX.

PARKS& WILD.CODEANN.ch. 26 (Vernon 2002). Under section 26.00 1(a), a municipality may not

approve the use or taking of parkland until the municipality has made certain determinations:

A . . . municipality of this state may not approve any program

or project that requires the use or taking of any public land designated

and used prior to the arrangement of the program or project as a park

. . . , unless the . . . municipality, acting through its duly authorized

governing body or officer, determines that:

(1) there is no feasible and prudent alternative to the use

or taking of such land; and

(2) the program or project includes all reasonable

planning to minimize harm to the land, as a park . . . ,resulting from

the use or taking.

'Certain lands are not subject to chapter 26, but the facts you provide suggest that none of the exclusions apply

here. See TEX.PARKS& WILD.CODEANN. Cj 26.004 (Vernon 2002); Request Letter, supra note 1, at 2-5.

The Honorable Jose R. Rodriguez - Page 5 (GA-0558)

Id. 5 26.001(a). The municipal governing body may make the required determinations only after

publishing notice and holding a hearing "as required by this chapter." Id. 5 26.001(b); see also id.

5 26.001(c) (requiring the governing body or officer to consider "clearly enunciated local

preferences"); id. 5 26.002 (articulating notice requirement^).^

11. Analysis

For purposes of analysis, we separate your questions by reference to the underlying

transaction, i.e., lease or sale. We begin by analyzing a home-rule municipality's authority to lease

parkland to a school district and a school district's authority to enter such a lease. We do not in this

opinion consider whether the City's charter or code of ordinances restricts the City's lease or sale

of parkland to the D i ~ t r i c t . ~

A. The lease of parkland

1. A home-rule municipality's authority

The City is authorized to lease its property in accordance with statutory limitations. See

Dallas Merch. 's, 852 S.W.2d at 490-91 (citing MJR S Fare, 792 S.W.2d at 573). Two of the

statutes, Local Government Code section 272.005 and Parks and Wildlife Code chapter 26, may

apply to the proposed lease.

Under section 272.005 of the Local Government Code, the City may lease the property to the

District-a political subdivision-for less than fair market value and without complying with any

4 Y o cite

~ section 306.038 of the Local Government Code, located in a chapter authorizing a home-rule

municipality with a population of more than 40,000, such as the City, to create a board to acquire, improve, equip,

maintain, finance, or operate municipal parks. See TEX.LOC.GOV'TCODEANN.55 306.001, .011 (Vernon 2005);

UNITEDSTATES CENSUS BUREAU,2000 CENSUSOF POPULATION: POPULATION FINDER (population of El Paso, Texas is

563,662), available at http:llquickfacts.census.gov/qfd/states/48/4824000.h~1 (last visited July 24, 2007). Section

306.038(b) authorizes a parks board to

enter into a contract, lease, or agreement with any person relating to the

management, operation, or maintenance of any . . . land[] or property of any other

nature under the management and control of the board. Such a lease or agreement

for the use of board properties by others may not exceed a term of 40 years.

TEX.LOC. GOV'TCODEANN. 5 306.038(b) (Vernon 2005). Section 306.038(b) on its face applies only to leases

executed by a parks board. It does not apply to a home-rule municipality's authority to enter a lease relating to city-

owned parkland, and you ask about only a home-rule municipality's authority in this regard. We do not consider in this

opinion whether section 306.038(b) could be read to authorize a park board established under chapter 306 to lease

property for the construction of a school building.

'YOUask whether, if the City's charter restricts "the City's authority to convey city [parkland], . . . these

restrictions [would] be applicable to a lease or conveyance from the City to an independent school district." Request

Letter, supra note 1, at 4-5. This office does not construe city charters. See Tex. Att'y Gen. Op. Nos. GA-0530 (2007)

at 6; GA-0449 (2006) at 1.

The Honorable Jose R. Rodriguez - Page 6 (GA-0558)

competitive purchasing procedure nor with statutory notice and publication requirements if the City

first "determine[s] the terms of the lease . . . so as to promote and maintain the [City's] public

purpose."6 Act of May 14,2007,80th Leg., R.S., H.B. 261 8 , s 1 (to be codified at TEX.LOC. GOV'T

CODEANN. 5 272.005(b)). But see infra pp. 6-7 (discussing section 272.005(b)'s effect on Parks

and Wildlife Code chapter 26's notice requirements). Whether the terms of a particular lease

promote and maintain a municipal public purpose is a question of fact that cannot be determined in

an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact

are not appropriate to the opinion process.").

In addition, the City must comply with Parks and Wildlife Code chapter 26 if the lease will

require a use or taking of parkland. Section 26.00 1 expressly applies to "anyprogram orproject that

requires the use or taking o f ' parkland and thus encompasses a lease. TEX.PARKS& WILD. CODE

ANN.5 26.001(a) (Vernon 2002) (emphasis added). As the Fort Worth court of appeals determined

ii 1990, section 26.001 "does not come into play where the project is of the same type or character

as the use sought to be protected and the land is capable of being employed for that use after

implementation of the project even as before." Persons v. City of Fort Worth, 790 S.W.2d 865,874

(Tex. App.-Fort Worth 1990, no pet.). Thus, for example, the Fort Worth court concluded that

section 26.001 does not apply to the transfer of city parkland to the city zoo. See id. at 876. Neither

this office nor any court has considered whether the transfer of parkland to a school district for

purposes of constructing school facilities "is of the same type or character" or, conversely, requires

the use or taking of parkland. Id. at 874. Whether a particular conveyance of parkland is subject to

section 26.001 is a fact question that cannot be resolved in the opinion process. See Tex. Att'y Gen.

Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."). If

it is a use or taking, section 26.001 requires the City to consider whether any "feasible and prudent

alternative to the use or taking of [the] land" exists and whether "the program or project includes all

reasonable planning to minimize harm to the land, as a park . . . , resulting from the use or taking."

TEX.PARKS& WILD. CODEANN. 5 26.001 (a) (Vernon 2002); see id. 5 26.00 1(b).

Because newly enacted Local Government Code section 272.005(b)(3) expressly abrogates

statutory notice and publication requirements outside of chapter 272, we must consider whether, if

both Local Government Code section 272.005 and Parks and Wildlife Code chapter 26 apply, the

City must comply with chapter 26's notice requirements. See Act of May 14, 2007, 80th Leg.,

R.S., H.B. 2618, 5 1 (to be codified at TEX.LOC.GOV'TCODEANN. 5 272.005(b)(3)). Section

6With respect to the necessity of a public purpose, section 272.005(a) implicitly recognizes that article 111,

section 52(a) of the Texas Constitution limits expenditures of public funds. Under article 111, section 52(a), the

Legislature may not authorize a county, city, town, or political subdivision of the State to lend credit or grant public

funds. See TEX.CONST.art. 111, 4 52(a); Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp.

Comm'n, 74 S.W.3d 377, 384 (Tex. 2002). A political subdivision may, consistently with article 111, section 52(a),

transfer hnds to another political subdivision, but only if the funds are used for a purpose for which the granting political

subdivision is authorized to expend money. See Harris County Flood Control Dist, v. Mann, 140 S.W.2d 1098, 1104

(Tex. 1940) (applying article 111, section 52(a) to an intergovernmental transfer of funds); State ex rel. Grimes County

Taxpayers Ass'n v. Tex. Mun. Power Agency, 565 S.W.2d 258, 265 (Tex. Civ. App.-Houston [lst Dist.] 1978, writ

dism'd). The expenditure of municipal funds for school district purposes generally does not serve a municipal purpose

and is not within a municipality's scope of authority. See Tex. Att'y Gen. Op. No. GA-0069 (2003) at 6 (quoting Tex.

Att'y Gen. Op. No. JM-1255 (1990) at 7).

The Honorable JosC R. Rodriguez - Page 7 (GA-0558)

272.005(b)(3) does not define the phrase "notice and publication requirement." Id. While section

272.005's apparent purpose is to enable political subdivisions to lease property owned by another

political subdivision without submitting to statutory competitive procurement requirements, section

272.005(b)(3) on its face does not limit itself to notice and publication requirements that are tied to

competitive procurement requirements. See HOUSERESEARCH ORG.,BILLANALYSIS,Tex. H.B.

261 8,80th Leg., R.S. (2007) at 1-2; see also HOUSECOMM.ON COUNTYAFFAIRS,BLL ANALYSIS,

Tex. H.B. 261 8,80th Leg., R.S. (2007) (stating that the bill would "allow counties to lease county-

owned property to local, state[,] and federal government entities without the need for competitive

bidding"). In our opinion, section 272.005(b)(3) refers to "notice and publication requirement[sIm

like those found in competitive procurement statutes requiring a political subdivision to publish

notice of a proposed transaction in a newspaper of general circulation published in the area. Act of

May 14, 2007, 80th Leg., R.S., H.B. 261 8, $ 1 (to be codified at TEX.LOC.GOV'T CODEANN.

$ 272.005(b)(3)); see, e.g., TEX.LOC.GOV'TCODEANN.$ 252.041(a) (Vernon 2005) (notice and

publication requirement relating to a municipality's competitive sealed bidding procedure); id.

$ 262.025(a) (County Purchasing Act competitive bidding notice and publication requirements); cJ:

TEX.GOV'TCODEANN. $5 2051.041-.053 (Vernon 2000 & Supp. 2006) (providing for notice by

publication in a newspaper where a specific statute does not specify the manner of the publication).

We do not construe section 272.005(b)(3) to apply to notice requirements that do not involve

publication. See, e.g., TEX.GOV'TCODEANN.$55 1.041 (Vernon 2004) (requiring the governmental

body to notify the public of subjects to be discussed at a meeting).

Parks and Wildlife Code chapter 26 requires a political subdivision that is considering

conveying parkland to provide two types of notice: (1) written notice "to the person, organization,

department, or agency that has supervision of the land proposed to be used or taken"; and (2) notice

to the public published in a qualifying newspaper of general circulation. TEX.PARKS& WILD.CODE

ANN. $ 26.002(a), (c) (Vernon 2002). As we have construed section 272.005(b)(3), it abrogates

chapter 26's requirement that the political subdivision notify the public of the contemplated taking

of parkland by publication in a qualifying newspaper of general circulation. See id.$ 26.002(c). On

the other hand, section 272.005(b)(3) does not affect chapter 26's requirement that the political

subdivision provide written notice to the entity that supervises the parkland. See id. $ 26.002(a).

Similarly, section 272.005(b)(3) does not abrogate chapter 26's hearing requirement, nor the

requirement that the City determine that no "feasible and prudent alternative to the use or taking of

[the] land" exists and that "the program or project includes all reasonable planning to minimize harm

to the land, as a park, . . . resulting from the use or taking." Id. $ 26.001 (a) (Vernon 2002); see id.

$ 26.001(b) ("finding required by Subsection (a) . . . may be made only after notice and a hearing").

In sum, the City may lease parkland to the District in compliance with Local Government

Code section 272.005 and Parks and Wildlife Code chapter 26. If the lease complies with Local

Government Code section 272.005, the City is not subject to chapter 26's requirement that the public

receive notice in a qualifying newspaper of general circulation. We turn next to the school district's

authority to enter the lease.

The Honorable Jose R. Rodriguez - Page 8 (GA-0558)

2. A school district's authority

A school district's board of trustees is expressly authorized to acquire real and personal

property and to "govern and oversee the management" of the district's public schools. TEX.EDUC.

CODEANN.5 11.151(a)-(b) (Vernon 2006). A board of trustees also has express statutory authority

to expend school district funds to acquire "school buildings and sites by leasing" and to accomplish

"other purposes necessary in the conduct of the public schools." Id. 5 45.105(c). Based upon these

statutes, this office suggested in 2005 that a school district is authorized to lease land for school

district purposes. See Tex. Att'y Gen. Op. No. GA-0321 (2005) at 2-3.

A school district may not, however, enter a lease that commits future revenues unless

specifically authorized by law. A school district's annual budget must "cover[] all . . . proposed

expenditures . . . for the following fiscal year," and the approval of an expenditure exceeding the

budgeted amount is a criminal offense. TEX.EDUC.CODEANN.$5 44.002(a), .052 (Vernon 2006).

In 1968 the Texas Supreme Court recognized "the rule that a contract calling for expenditures in

excess of current year funds creates a deficiency debt which is beyond the authority of the trustees

of a school district." Nat'l Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690,693 (Tex.

1968). A school district may avoid creating a deficiency debt if the lease "retains" to the school

district's board of trustees "the continuing right to terminate at the expiration of each budget period

of the local government during the term of the contract"; is conditioned "on a best efforts attempt

by the [school district's board] to obtain and appropriate funds for payment of the contract"; or

"contains both the continuing right to terminate and the best efforts conditions." TEX.LOC.GOV'T

CODEANN.5 271.903(a) (Vernon 2005); see also id. 5 271.903(b) (defining "local government" to

include a school district). So long as the lease does not commit the District's future revenues, the

District may enter a long-term lease with a right to renew for an indefinite period.

Finally, with respect to the proposed lease, you ask about the District's authority to expend

school district funds to construct a school and related facilities on leased property. See Request

Letter, supra note 1, at 1. As this office recently has noted, a school district has express statutory

authority to construct school buildings, and no statutory provision limits "a school district to

constructing school district buildings on land owned by the school district in fee simple." Tex. Att'y

Gen. Op. No. GA-0321 (2005) at 3 (citing TEX. EDUC.CODEANN. 55 44.031-.041, 45.105(c)

(Vernon 1996 & Supp. 2004-05)). Consequently, a school district may construct school facilities

on leased property if the school district determines: (1) that the expenditure serves a school district

purpose; (2) that the expenditure is adequately controlled to ensure that the school's purpose is

accomplished; and (3) that the school district will receive a return benefit from the expenditure. See

id. ; accord Tex. Att'y Gen. Op. No. GA-0076 (2003) at 6-7; see also TEX.CONST.art. 111, 5 52(a)

(prohibiting the expenditure of public funds for private purposes).

B. The sale of parkland

Your remaining questions pertain to the City's authority to sell parkland to the District. See

Request Letter, supra note 1, at 1 (questions 2-4).

The Honorable Jose R. Rodriguez - Page 9 (GA-0558)

Section 272.001(b) of the Local Government Code expressly prohibits a sale to a

governmental entity with eminent-domain powers "for less than the fair market value of the land or

interest unless the conveyance [or] sale . . . is with . . . abutting property owners who own the

underlying fee simple." TEX.LOC.GOV'TCODEANN.5 272.001(b) (Vernon 2005). You have not

indicated that the District is an abutting property owner that owns the underlying fee simple. See

generally Request Letter, supra note 1. Accordingly, the City may not sell the property to the

District for less than its fair market value.

And the City must comply with chapter 26 of the Parks and Wildlife Code-including the

notice and publication requirements-if the sale "requires the use or taking o f ' parkland. TEX.

PARKS& WED. CODEANN.4 26.00 1(a) (Vernon 2002); see supra p. 6 (outlining determinations and

procedures required by chapter 26). Section 272.005 of the Local Government Code expressly

applies to a lease of public land, not a sale, and thus would not affect the City's notice and

publication obligations. See Act of May 14, 2007, 80th Leg., R.S., H.B. 261 8, 5 1 (to be codified

at TEX.LOC.GOV'TCODEANN.5 272.005). If the City complies with and makes the determinations

required by section 26.001(a), it may sell parkland to the District.

The Honorable Josi R. Rodriguez - Page 10 (GA-0558)

S U M M A R Y

A home-rule municipality may lease parkland to an

independent school district if the lease will serve a public purpose of

the municipality in compliance with Local Government Code section

272.005. If the lease requires the use or taking of parkland, the

municipality must hold a hearing and make the determinations

required by Texas Parks and Wildlife Code chapter 26. With respect

to a lease of public land, Local Government Code section

272.005(b)(3) abrogates the requirement in Parks and Wildlife Code

chapter 26 that the municipality notify the public of the school

district's proposed use or taking of parkland by publishing notice in

a qualifying newspaper of general circulation.

A school district may not enter a lease that commits future

revenues, but a school district may enter a long-term lease that allows

the school district's board of trustees to terminate the lease at the end

of each budget period or is conditioned on the school board's best

efforts to obtain and appropriate sufficient funds for the contract, or

both. The school district may construct a school and related facilities

on the leased property.

A home-rule municipality may sell parkland to an independent

school district for no less than fair market value. The municipality

must comply with Parks and Wildlife Code chapter 26, including its

notice and publication requirements, if the sale requires the use or

taking of parkland.

Very truly yours,

Attorney &a1 of Texas

KENT C. SULLIVAN

First Assistant Attorney General

NANCY S. FULLER

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee