Case Information

*1 The Attorney General of Texas December 29, 1983 JIM MATTOX

Attorney General Fred Wendorf, PhD. Opinion No. JM-104

Supreme Court Building Chairman P. 0. BOX 12543 Austin, TX. 7871% 2543 Texas Antiquities Re: Effect of designation as a 512/4Y5-2501 P. 0. Box 12276, Capitol Station landmark Telex 9101874-1387 Austin, Texas Telecopier SW475.020~

Dear Dr. Wendorf: 714 Jackson, Suite 700 Dallas, TX. 75202.4508

You ask clarification the effect the designation of real property owned by a political subdivision to be a state landmark under the Antiquities Code, chapter 191 of the Natural Resources Code. You wish 4824 Alberta Ave., Suite 160 to know whether designation of a El Paso. TX. 799052793 specific piece owned by an independent school 9151533-3434 district the execution and delivery of a deed to the Texas Committee. P x)1 Texas, Suite 700 Section 191.092(a) states Houston. TX. 77002-3111

713/223&S5

sites, objects, buildings, artifacts, Implements, 808 Broadway, Suite 312 scientific, or educational interest, including Lubbock, TX. 79401-3479 those pertaining to prehistoric and historical SOS/747-5233 American Indians or aboriginal campsites, dwell- and habitation sites, artifacts h3.9, 4309 N. Tenth, Suite B implements of culture, as well as archaeological McAllen, TX. 785Ol.tSS5 sites of every character that are located in, on, 5121682-4547 or under the surface of anv land belonaine I State of Texas or to any county, or 200 Main Plaza, Suite 400 state are San Antonio, TX. 78205.2797 landmarks. (Emphasis added). 51W225-4191 Section 191.093 provides

An Equal Opportunity/

Affirmative Action Employer landmarks under . . 191.092 of this code are the

sole of the State of Texas and may not be taken, altered, damaged, destroyed, salvaged, excavated without a contract with or permit from the committee. (Emphasis added).

Section 191.002 declares it to be

Dr. Fred Wendorf - Page 2 (~~-104) . . of the State of Texas to

the public policy . locate, protect, and all . . . buildings . . and educational, scientific

interest . . . Section 191.051(b)(S) reiterates it is the responsibility of the Antiquities Committee to “protect and preserve the archaeological resources of Texas.” We do not address any constitutional question regarding the declaration that municipal property is the sole property of the state of Texas.

You state the Texas Antiquities Committee interprets these provisions as limiting its jurisdiction over properties as landmarks to the protection and preservation value as such. We agree with your these provisions. is well recognized that the legislature may exercise

over property belonging to the state of Texas or to any county, of the state, subject only to constitutional restraints. Greene v. Robison, 8 S.W.Zd 655, 659 (Tex., 1928); Houston v. Gonzales Independent School District, 229 S.W. 467, 468 (Tex. 1921); Reese v. Cobb, 135 S.W. 220, 224 (Tex. Civ. App. - 1911, no writ) ; Weekes v. Galveston, 51 S.W. 544, 546-547

1899, writ ref’d). constitutional limitations on the legislature’s control owned by municipal quasi-municipal corporations, such as school districts, were defined in Love v. City of Dallas, 40 S.W.2d 20, 27 (Tex. 1931), where it was said the public interest in municipal acquired for its benefit did not prevent legislature from controlling or disposing of property without the consent of the local governmental body so long as such was not done in contravention of the trust. See also City of Victoria v. Victoria County, 101 S.W. 190, 193 (Tex. 1907); Texas Committee v. Dallas County Community College District, S.W.2d 924, 930-931.

The Antiquities Committee view its governing statute it to protect and preserve the value of state archaeological landmarks while the deed of ownership remains with the municipal corporation holding in trust for the public is consonant with this principle. You advise us that designation of about five hundred state landmarks since 1977 has never involved transferring ownership state. Thus, committee’s administrative of the ambiguous sections supports the conclusion that such property is appropriately

retained by the municipal corporation while becomes responsible the preservation its value landmark. Roy v. Schneider. 221 S.W. 880. 885 (Tex. *3 - Page 3, (JM-104) 1920); Stanford V. Butler, 181 S.W.2d 269, 273-274 (Tex. 1944). originally passed in 1969, was amended in 1981 Code, we believe that it may be

without major change. Consequently, presumed that the Antiquities Committee's interpretation of the code Calvert v. Houston Lighting I% Power meets with legislative approval. Co., 369 S.W.2d 502, 509-510 (Tex. Civ. App. - Austin 1963, writ ref'd z.e.); Railroad Commission of Texas v. Texas & New Orleans Railroad Co., 42 S.W.2d 1091, 1097-98 - Austin 1931, writ ref'd). follows Code does not require

transfer designated

landmark or remove from the management, use, and control of cities, counties, 'subdivisions by which they are held for public use and benefit. However, committee's custodial supersedes other management and usage rights to the extent latter would conflict or interfere with the committee's legislatively mandated duty protect a landmark's "archaeological" value. Therefore, we conclude the conrmittee's of 191.092(a) and 191.093 is a reasonable construction of these statutes absent contrary legislative action and any evidence that such construction is erroneous or unsound. Shaw v. Strong, S.W.2d 276 (Tex: 1936); Koy v. Schneider, 221 S.W. 880 (Tex. 1920).

SUMMARY Where sections and 191.093 Natural Resources Code have been uniformly construed by those charged with their enforcement to mean that no transfer of deed is required when real property owned by a county, or other is a landmark, this is deemed effective absent legislative action contrary or evidence the construction given is erroneous or unsound.

Attorney General of Texas TOM GREEN

First Assistant Attorney General

DAVID R. RICHARDS

Executive Assistant Attorney General *4 - Page 4 (JM-104)

Prepared by Colin Carl

Assistant Attorney General

APPROVRD:

OPINION COMMITTEE

Rick Gilpin, Chairman

Jon Bibls

Colin Carl

Susan Garrison

Jim Moellinger

Nancy Sutton