The opinion
April 26, 1951
Ron. Lerry 0. cox
Executive Director
Board for Texas State Hospitals
and Special Schools
Austin, Texas
Opinion Ho. V-1170
Re: Authority of the Board to
place permanent improve-
ments upon land held by the
State subject to mineral re-
servation and conditions
subsequent.
Dear Sir:
Your request for opinion reads in part as
followe:
“The State of Texas, acting by
and through the State Board of Control
while it WUB edmlnieterlngthe State
hospital esetem, acquired title to eev-
era1 yqccee of real estate which were
conveyed to the State of Texas nith re-
strictions as to use. One tract of land
which was conveyed to the State was Camp
“,~I;I~ which consists of 2,369 acres
. At the present time this Board
maintains and operates a tuberculosis
sanatorium on the property. On July 28,
1948, the War Assets Administratorcon-
veyed by deed, without warranty, to the
State of Texas the 2,369 acres of land.
The deed contained the following con-
ditions eubaequent:
Hon. Larry 0. Cox - Page 2 - V-1170
"1. The Federal Governmentretaln-
ed all mineral rights.
"2. That for a period of twenty-
five years from the date of
the .lnetrumentthe State will
not resell or lease the prop-
erty without first obtaining
the written approval of the War.
Assets Administration.
“3. During 'nationalemergencies "'
the Federal Government Is en-
titled to full unrestricted,
use, ,controland possession
of the property, 'orany part
thereof, Including additions
or Improvementsmade by the
,Stete
., of Texas.
..'
“4. :+he property Is to be used
for a.tuberculosishospital
and eanatorfum,and no other
purpose, for a period of twenty-
five years,
II
. . .
"We have a very similar situation
existing at the Weaver H. Baker Memorial
TuberculoefsSanatorium at Mission, Texas.
This Installationwas once Moore Air Field,
and the grantors of the real property were
the cities of Edfnburg, Mission and &Allen.
The date of the +ed Is November 5, 1947.
The mineral rights are retained by the
grantors, and the conditions subsequentare
exactly the same except that they expire at
the end of a ten year period instead of a
twenty-fiveyear period.
"In addltlon to the two above mentlon-
ed Installations,this Board Is operating
.
325
Hon. Larry 0. Cox - Page 3 - V-1170
and maintaining the Victory Air Field
at Vernon, Texas. There la only one re-
striction ln the deed to the Vernon
property. This property was conveyed
to the State of Texas by the City of
Vernon so long as the property la used
for a publtc State purpose.”
After making the foregoing statement, you re-
quest our opinion as to whether your Board has authority
to place permaneht Improvementson tracts of land which
have been conveyed to the State subject to the reserva-
tions and conditionssubsequent described In your letter.
The authority of a State agency to acquire
real estate, the title to which neceeeerIly vests In the
State, Is dependent upon the will of the State expressed
through Its legislature. The authorizing legIelatlon
Involved here la set forth In Senate Bill 147, Acts
50th Leg., 1947, ch.44, p.58 (Art.3251a,V.C.S.) which
provides:
“Section 1. The State Board of Con-
trol is hereby authorized to negotiate for
and to acquire from the United States Govern-
ment, or any agency thereof, or from any
source whatsoever, by gift, purchase, or
lease-hold, for and on behalf of the State
of Texas, for use in the state eleemoeynary
service, and In the establishmentof state
tuberculosissanatoriums,any lands: bulld-
Qw, and facilitieswithin the State of
Texas, and any personal properties wherever
located, and to take title thereto for and
in the name of the State of Texas.
“Sec.2. The fact that the State of
Texas can acquire surplus property, both
real and personal, from the United States
Government,and Its several agencies, and
can acquire such property by gift from pa-
triotic and public spirited titles, coun-
ties, and individualcitizen%, and can ac-
quire such properties by purchase at nominal
. I
.
Hon. Larry 0. Cox - Page 4 - V-1170
cost, for use In the state eleemoeynary
service to the great Improvementof pub-
lic health and the advancement of public
educatiod, and can, by acquiring such
property establishgreatly needed tube&
culoele sanatoriums,and the fact that
tuberculosisIs a co%miunlcable and ln-
fectloue disease prevalent In South Texas
and In East Texas, constitutinga menace
to the general health and welfare of all.
the people pf the state, creates an emer-
gencg. . .
The East Texas State TuberculosisSanatorium
occupies the Camp Fannln property and was created by
Acts 50th Leg., 1947, ch.344, eec.16, p.679 (Art.3254d,
V.C.S.). This Act was amended by Acts 51et Leg.,R.S.
1949, ch.207, p.389, but the only change was to ellm-
lnate the restrictionof sanatorium use to white per-
eons. The Act ~,ofthe 50th Legislatureprovides:
“There 1% hereby created the lEaat
Texas State TuberculosisSanatorium’for
tubercularwhite person%. As the Board
of Control Is able to %ecure sufficient
buildings and equipment to establish such
tuberculosissanatorium, the said Board
la hereby authorizedand directed to re-
condition and re-model %ame as may be
necessary -toestablish a Sanatorium for
white pqreone only, to be known and deelg-
nated as the ‘East Texas State Tubercu-
losis Sanatorium’.I’
The Weaver H. Baker Memorial Tuberculosis
Sanatorium occupies Moore Field end was created by
Acts 50th Leg., 1947,ch.330,p.607,wherein It is pro-
vided:
“There Is hereby appropriatedfor
the fiscal year ending August 31, 1948,
the sum of Five Hundred Fifty Thousand
($550,000.00)Dollar% for the conver-
sion and securing of title to Moore Field
Hon. Larry 0. Cox - Page 5 - V-1170
near Mission, Texas, In accordance with
Senate Bill No. 147, Acts of Regular See-
‘alon, 50th Legislature, 1947; and eetab-
llahlng the Weaver H. Baker Memorial Tu- '.
berculoele Sanatorium. In the event.
Moore Field cannot be secured the Board
of Control shall have authority to ee-
tablleh said Sanatorium at such other
place as the Board of Control may direct.
For the fiscal year ending August 31,
1949 the unexpended balance of Five Hun-
dred Fifty Thousand ($550,000.00)Dollars
Is reappropriated for conversion. For the
fiscal year ending August 31, 1948,~there,
1% appropriated the sum of Three Hundred
Ten Thousand ($310,000.00)Dollars to the
Weaver H. Baker Memorial TuberculosisSana-
torium for salaries, operation,support,
maintenance, general lmprovemente,re-
pairs and contingent expenses. For the
fiscal year ending August 31, 1949, there
Is appropriated Six Hundred Thousand
($~OO,OOO.OO)Dollars for %alarles, opera-
tion, support, maintenance,general lm-
provements, repairs and contingentex-
penses. . .'
The Victory Air Field was accepted by the 51st
Le lelature (Acts 51et Leg., R.S.l$Q,ch.553,sec.25,p.
108 5) under this language:
"The Board Is hereby authorized
to accept from the City of Vernon the
buildings and land formerly used as an
air field for the eetabllehmentof a
State Hospital."
The nature or extent of the title to be ac-
quired by a State agency Is dependent upon the In-
tention of the Legislature. If the authorizingAct
provides for the acquisition of "full fee simple
title", or "good and merchantabletitle", or u%es
328
Hon. Larry 0. Cox - Page 6 - V-1170
other language which may tend to show a particular
Intent with respect to the type of title to be ec-
qulred, then title should be acquired accordingly.
The authorizing legIelatlonhere simply states that
the Board Is authorizedto “negotiatefor” end ac-
quire “by gift, purchase, or leasehold, . . . any
land%, buildings, and facllltlee . . . and to take
title thereto for and In the name of the State of
Texas.” The emergency clause la predicated In part
upon the fact that the State “can acquire surplus
property, both real and personal, from the United
States . . .’ at a nominal coat. The provleIone of
this Act are quite broad and, to our minds, have the
effect of delegating to the Board the authority to
negotiate for, end within its discretion acquire,
the beet title obtainable. We call attention to the
fact that the Act anticipatedecquleltlonof surplus
,propertleefrom the United States at a time when the
Federal Governmentwas making all conveyance%of
these properties subject to the same reservations
i and conditions as those set forth In the deeds to
the State. Doubtless, the Legislaturehad knowledge
of this practice and drew the Act as broad as It did
with this In mind.
In an opinion by this office dated Febru-
ary 19, 1936, addressed to Hon. T. 0. Walton, Preel-
dent of A. & M. College (Att’y Gen. Opa.,Book 370,
p.319), It Is stated:
I,. . . Insofar as acquIeltlonby
sale Is concerned,the Legislature,lneo-
far as this writer has been able to dle-
cover, has never made any apeclflc regu-
lation. The Legislaturehas merely provl-
ded that the Board of Directors shall have
the power to purchase land. The only re-
striction being that the conveyancesshall
be ~approvedby the Attorney General as to
form. From a study of the foregoing artl-
clee, the legislativeIntention to leave
the manner of acquiring lands, Including
the matter of mineral reservationby the
grantor within the broad discretion of the
Hon. Larry 0. Cox - Page 7 - VL1170 s
Board of::DIrecbore,
la quite dlearto
the writer. Therefore, It Is the opln-
Ion of this writer, end you are accord-
ingly advised that the'Boerd of Directors
of the AgriculturaldcMechanical College
of Texas does haye,',thelegal.authorItyto
acquire lands.for use as~experlmentalsta-
tlona,71th a,mIneraJ reservaflon to'the
grantor. However; It 1% euggeetdthat
the Board ehcu~dexercI%e it% .dlecretlon'
In this matter wlth‘a ti,ewto the type of
land sought to be acquired, the use to
which,It 18 to be6%ubject,e~d,~,the permati
of the Improvement%to'be placed ~thereoni
the de%.lrabllIty,,'o.f
@tires cpdrol,'bf,~~t~~
Iahd'In case :of:future.mlneral:.dyv,eIop-'
merit,;
and other mattere',ofequal.Impcr-~
tande. ,Wlththi~%~~lnmind ~lt:le ,a matter
wholly within,the .dl%,cre-tlon,ofthe Bo.a,rd
whether It wlllYbe 'goodbusiness to ac-
quire any land where the grantor desires
to retain all or part of the minerals. . .I'
It has be~en.
held in County School Trustees of
'UpehurCounty,~v.Free',134 S.W.2d 935 (Tex.Clv.App.,lggl,
error ref.w.o.m.~),that school trustees may exclude the
mineral estate from a condemnationsuit and acquire only
the surface,,even though the statute provides for con-
demnation of the fee simple title.
In our opinion, the Board of Control acquired
titles which it could legally acquire. Therefore, as to
the tract% of land here Involved, there Is nothing In-
herent In the titles by reason of the reservatloneend
conditionswhich would prevent their use for permanent
Improvementswithin the sound dl%cretlon of your Board,
and subject to proper appropriationsbelng made there-
for by the Legislature.
Your request does not present the question of
the legislative intent with respect to permanent con-
struction on the above mentioned tracts of land as re-
flected by the various appropriationbills enacted subse-
quent to the date such land was acquired by the State.ThIs
330
Hon. Larry 0. Cox - Page 8 - V-1170
Is a matter upon which we exprecreno opinion.
SUMMARY
Under an Act authorizinga State
agency to acquire title to surplus prop-
erties of the United States and others
through gift, purchase, or leasehold,
such agency Is authorizedwithin Its
sound discretion to accept title subject
to a mineral reservationand certain con-
ditions subsequent. Consequently,the
reeervatlonand conditionsdo not In
themselvesprevent erection of permanent
Improvement%on lands thus held. The ad-
vI%abllIty of making such ImprovementsIs
a matter within the discretion of the
Board, subject.to legislativeapproprla-
tlon.
Yours very truly
PRICE DANIEL
Attorney-General
APPROVED:
Jesse P. Luton, Jr.
Reviewing-Assistant
Charles D. Mathews
First Assistant