Opinion No.
Background
- TSU owns three Olivewood Cemetery parcels: two are cemetery lands with graves, one abuts the cemetery.
- The Descendents of Olivewood seeks to restore the cemetery and obtain TSU property as part of a project.
- The Corporation proposes exchanging TSU parcels for historical papers or for access rights to the cemetery; appraisal values cemetery lands at zero and adjacent property at $11,250.
- Question presented: can TSU convey for exchange or gift (1) for papers, (2) for access, or (3) as a public-purpose gift?
- TSU has authority under Tex. Educ. Code § 106.35(a) to acquire and convey land; real property is state property.
- Constitutional limits require that gratuitous transfers (Art. III, §§ 51-52) not occur; transfers may be allowed if supported by adequate consideration or serve an authorized public purpose with safeguards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Art. III, §§ 51-52 prohibit gratuitous transfers of TSU property to a private entity? | Hughey argues against gratuitous transfer to private interests. | Abbott's opinion notes prohibition on gratuitous disposition; exchange or gift must fit exceptions. | Gratuitous transfers are prohibited; exchanges or gifts require authorized purpose or adequate consideration. |
| Can exchange for historical papers constitute adequate consideration for TSU property? | Papers could be valuable consideration supporting an exchange. | Whether papers have adequate value is a fact question for TSU's board. | Adequacy of consideration is a factual question for the governing board; exchange may be permissible if papers are adequate consideration. |
| Can exchange for access rights to the cemetery constitute adequate consideration for TSU property? | Access rights could serve as consideration. | Rights must be adequate and not already possessed by grantee; still factual and board-determined. | Adequacy of access rights is a fact question for the governing board; may support conveyance if adequate. |
| May TSU gift the parcels to the private Corporation if it serves a public purpose with safeguards? | Public purpose grant could avoid prohibition. | Gifts must serve an authorized University purpose and include controls; not a blanket public grant. | TSU may not grant by gift to a private entity unless it serves an authorized University public purpose with appropriate safeguards. |
Key Cases Cited
- Pasadena Police Officers Ass'n v. City of Pasadena, 497 S.W.2d 388 (Tex. Civ. App.-Houston [1st Dist.] 1973) (gratuitous transfer of property rights violated Art. III, §§ 51-52)
- Walker v. City of Georgetown, 86 S.W.3d 249 (Tex. App.-Austin 2002) (consideration for property conveyance avoids gratuity; value depends on context)
- City of Austin v. Austin City Cemetery Ass'n, 73 S.W. 525 (Tex. 1903) (permission to use property as cemetery can constitute acceptable consideration)
- Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995) (public purpose requirement for grants of public funds or property)
- Rhoads Drilling Co. v. Allred, 70 S.W.2d 576 (Tex. 1934) (prohibition on gratuitous disposition of state property and contract rights)
- Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. 1928) (limitations on gratuitous grant of public funds or property)
- Walsh v. Univ. of Tex., 169 S.W.2d 993 (Tex. Civ. App.-El Paso 1942) (university property is state property; university lacks independent existence)