Case Information
The Attorney General of Texas October 22. 1981 MARK WHITE
Attorney General Telecopier 51214750296 Telex 91OiB74-1357
Supreme Court Bullding [51214752501] P. 0. Box 12546 Awtln. TX. 78711 Austin, Texas Fred Wendorf, Ph.D., Chairman P. 0. Box 12276, Capitol Station Texas Antiquities 78711 Committee of Sam Houston Woodland Home Opinion No. MW-378 Re: Contract in Huntsville for renovation
Dear Mr. Wendorf: 1607 MaIn St., Suite 1400 Dallas. TX. 75201 The Sam Houston Woodland Home in Huntsville, Texas, is 214l7428944 subject of your opinion request. This home is situated land
administered by the Board of Regents the Texas State University System. It is designated as a National Historic Landmark, listed 4524 Alberta Ave., Suite 160 in the National Register of Historic Places, and is a Recorded Texas El Paso, TX. 79905 Historic Landmark. On June 24. 1981, the Texas Antiquities Committee designated 1220 Dallas Ave.. Suite 202 Woodland Home as a State Archeological Landmark. We will assume that Houston. TX. 77002 this designation was effective to confer "landmark" status upon the 7131650-0965 home. The Board of Regents is concerned about the effect this designation upon a contract it entered into on May 23, 1980, 608 Broadway, Suite 312 extensive renovation the home. Much of the renovation work had Lubbock. TX. 79401 been completed when the designation was made. but more remains to be SCW747.5239 done. Your question is whether the Board of Regents must obtain a the Texas Antiquities Committee before this renovation 4309 N. Tenth, Suite B work can be completed. McAllen. TX. 78501 5lM2.4547 Sections 191.001, et seq., the Natural Resources Code
constitute Code of Texas. These provisions were 200 Main Plaza. Suite 400 San Antonio, TX. 79205 [51212254191] enacted they were contained in 1977. Acts 1977, 65th Leg.. in article 6145-9. V.T.C.S., ch. 871, at 2345. enacted in 1969. Formerly,
Several Antiquities Code provisions are relevant to your inquiry. Section 191.092 provides that:
An Equal OpportunityI Attinnative Action EmPlOW
Other sites, objects, buildings, artifacts, and locations historical, implements, archeological, scientific, or educational
interest, including those pertaining prehistoric and historical American Indians aboriginal campsites, dwellings, and habitation sites, their artifacts and implements of culture, Mr. Fred Wendorf - Page 2
as well as archeological sites of every character that are located in, on, or under the surface of any land belonging to the State of Texas or to any county. city, or political subdivision of state are state archeological landmarks and are sole property State of Texas. (Emphasis added).
Prior to the effective date of Senate Bill No. 659, section provided that:
Landmarks under Section 191.091 of this code
are the sole property the State of Texas and may not be taken, altered, damaged, destroyed, salvaged, or excavated without a contract with or from the committee. (Emphasis added). Section 191.094 provides in pertinent part that:
(a) Any site located on private land which determined by majority vote of the committee to be sufficient archeological, scientific, or historical significance scientific study, interest, or public representation aboriginal or historical past of Texas may be designated a state archeological landmark by the committee.
Section 191.095 provides that: archeological,
All sites items scientific, or historical interest private land the State of Texas in areas landmarks, as provided in Section 191.094 of this code, and landmarks under Section 191.092 of this code, may not be taken, altered, damaged, destroyed, salvaged, or excavated without a permit from the committee or in violation of the terms of the permit. (Emphasis added).
Senate Bill No. 659 became effective on August 31. 1981. It amended section 191.093 by adding the following underlined language:
Landmarks under Section or Section 191.092 of this code are the sole property of the State of Texas and may not be taken, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit committee. (Emphasis added).
Before reaching your question, we will address two threshold questions: (1) Prior to August 31. 1981, was the Texas Antiquities *3 Mr. Fred Wendorf - Page 3
a Committee authorized to require that a permit be obtained before section landmarks are altered? (2) May the committee require that a permit be obtained if it has not formally designated an item listed in section 191.092 as a “state archeological landmark”?
Texas Antiquities Committee v. Dallas County Community College District. 554 S.W.2d 924 (Tex. 1977). is pertinent to this inquiry. There, the college district sought to set aside an order the Antiquities Committee denying it a permit to demolish three buildings. The committee had never the buildings as state archeological landmarks. Nevertheless, it argued the college district had to obtain a permit before demolishing the buildings because they were listed in the National Register of Historic Sites and Buildings and were therefore of “historical interest” within 6, article 6145-9, V.T.C.S. That section then provided follows: buildings... of historical... interest...
All... located... on... lands belonging to the State of Texas or.. . any county, city, political subdivision state are.. State Archeological Landmarks and are the sole property of the State of Texas and all such sites or items on private lands withjn the State of Texas in areas that have been designated as a ‘State Archeological Landmark’ as hereinafter provided, may not be taken, altered, damaged... withcut a from.. . the Antiquities Committee. See §§191.092-191.095. -
Speaking four members of court, Justice Pope held 6 unconstitutional on its face and as applied in that case. With respect latter conclusion, he found no substantial evidence to support committee’s refusal to grant the permit. Justice Greenhill concurred, agreeing with the plurality substantial evidence point, but declining to reach the constitutional Justice Denton dissented. questions.
The portion of Justice Pope’s plurality opinion that concerns us is as follows:
The Antiquities Committee has not designated any three buildings at issue as State 3ical Landmarks, but the Connnittee has Archeolol denied the Collene District’s request to demolish the buildings based upon the buildings’ expedited inclusion the National Register of Historic Sites and Buildings. The Antiquities Code does not give Committee authority .over buildings in the National Register; instead, Code only gives the Committee authority over *4 Mr. Fred Wendorf - Page 4
buildings which the Committee has designated as a State Archeological Landmark. Since the Committee has not designated buildings as State Archeological Landmarks. the College District does not need the Conrmittee’s permission before demolishing the buildings.
554 S.W.Zd at 926. (Emphasis added).
The meaning this statement is clear: the Antiquities Committee has no jurisdiction over buildings which it has not designated as state archeological landmarks, and its permission is therefore not needed before such a building is altered. The question concerns legal significance of this statement. Although neither Justice Greenhill nor Justice Denton challenged it in their opinions, it technically reflects the views of only four members of the court. Moreover, if fact that the buildings were never designated as landmarks was dispositive the question of whether a permit was needed to demolish them, need not have reached court constitutional questions. It could have disposed of the case on that ground alone.
In our opinion, however, this statement resolves the question when the Antiquities Committee acquires jurisdiction of buildings, sites, and other items. First. the court of civil anneals relied on . . this statement in Board of Regents v. Walker County Historical Commission, 608 S.W.2d 252 (Tex. Civ. App. - Houston 114th Dist.1 it is the 1980, no writ), which involved the Woodland Home. Second, One only reasonable construction of the Antiquities Code provisions. can hardly be expected to know that a particular item is a “landmark,” and therefore subject to the permit requirement, until Antiquities Committee formally designates it as such.
The Woodland Home is a “building” located on land “belonging the State of Texas or to any county, city, or political subdivision” within 191.092. For the foregoing reasons, we conclude it became a “landmark” within Code on June 24, 1981.
We now consider to August 31, whether, prior 1981, Antiquities Committee’s permission was needed before 191.092 landmarks could be altered. Put another way. does Senate Bill No. 659 effect any change in the law in this area? Before August 31. section referred only to “landmarks under Section 191.091.” Section 191.095 provided, however, that: sites archeological,
All items scientific, or historical interest private land the State of Texas in areas landmarks, as provided in Section 191.094 of this code, and landmarks under Section this code, may not be... altered... P. 1276
Mr. Fred Wendorf - Page 5
without a permit from the committee.... (Emphasis added).
This section was derived from section 6. article 6145-9. supril. Section 6 was discussed in Attorney General Opinion H-250 (1974), which observed that although the “peculiar wording” the section might suggest that the “taken, altered, damaged,” etc.. clause applied only to landmarks on private lands, the legislature certainly must have intended to protect landmarks on public land “with same vigor. ” Attorney General Opinion H-250 concluded as follows:
In our opinion, then. 56 of the Antiquities Code requires that the permission
Committee be obtained form of a permit before any site of historical or archeological interest on public lands can be altered, damaged, destroyed, etc. (Emphasis added).
In our opinion, legislature merely ratified this conclusion when it enacted section 191.095 in 1977. The wording that section--particularly 191.092--clearly its reference section indicates that all 191.092 landmarks were intended to be subject to the pzit requirement. Senate Bill No. 659 does not enact new law, therefore, but only clarifies existing law.
The Antiquities Committee, therefore, was obliged to require that a permit be obtained prior to the alteration of a section landmark even before Senate Bill No. 659 became effective. The remaining question is whether the committee may now require the Board of Regents to obtain a permit before further renovation work is performed on the Woodland Home pursuant to the contract of May 23, 1980.
Section 191.093 now provides that section landmarks “may not be . ..altered . ..without a . ..permit from the committee.” The law is settled that unambiguous statutory language will he construed written. Ex parte Roloff, 510 S.W.Zd 913 (Tex. 1974). In our opinion, a straightforward reading and application this statute compels the conclusion that once a building is designated as a “state archeological landmark.” it may not be altered without a permit committee. We perceive no basis for concluding that legislature did not intend for the permit requirement to apply where, alterations were as here, contracted before a building is a landmark. On the contrary. given the state’s legitimate interest in preserving integrity landmarks, we believe legislature fully intended the permit requirement to apply in such instances.
It is suggested in an accompanying brief to conclude that the Board of Regents must obtain a permit before this renovation work is completed to raise constitutional questions under article I, 10 of the Federal Constitution and article I, section 16 of *6 (NW-378)
Mr. Fred Wendorf - Page 6 the Texas Constitution, which prohibit laws impairing the obligation of contracts. However. we are not here confronted with lenislatlon which has that effect. See, e.g.. Texas State Board of Barber Examiners v. Beaumont Barber College. Inc., 454 S.W.Zd 729 (Tex. 1970); Biddle v. Board of Adjustment, Village of Spring Valley, 316 S.W.2d 437 (Tex. Clv. App. - Houston 1958. writ ref’d n.r.e.l: see also review cases in- Attorney General- Letter Advisory No; 136 (1977). As we have observed, even though section 191.093 has now been amended to include landmarks. section 191.095 has existed in its present form since 1977, Accordingly, when the parties entered into the May 23. 1980, contract, law then provided that landmarks may not be altered without a permit from the committee. The parties must be presumed to have known that Woodland Home could at any time he designated as a landmark, thus triggering the permit requirement. See. e.g., Reid v. Gulf Oil Corporation, 323 S.W.2d 107 (Tex. Civ. App. - Beaumont 1959), affirmed, 337 S.W.2d 267 (Tex. 1960); Lange v. Schulte, 276 S.W.2d 889 (Tex. Civ. App. - Amarillo 1954, writ ref’d n.r.e.); 13 Tex. Jur. 2d Contracts $165 (parties to contract presumed to have known existing Our courts have law and to have contracted with reference it). held that the enforcement legislation in effect when a contract McKenna made does not Impair the obligations created by the contract. v. City of Galveston, 113 S.W.2d 606 (Tex. Civ. App. - Galveston 1938, writ dism’d) ; see also Romeike v. Houston Ind. School District, 368 S.W.2d 895 (Tex. Civ. App. - Waco 1963, no writ).
We therefore conclude that the Board of Regents must obtain a from the Texas Antiquities Committee before renovation work on the Woodland Home is completed, even though the work was contracted for before the home was designated a “landmark.” committee may not
It must be emphasized, however, arbitrarily refuse to grant a permit impose any requirements whatsoever as conditions precedent to the issuance of a permit. Texas Antiquities Committee v. Dallas County Community College District, supra, demonstrates that the committee’s decision will be tested under the substantial evidence rule. In making its decision, for example, the committee certainly could not overlook the fact that, based upon a restoration study made by an architectural firm, legislature appropriated funds for repairs and rehabilitation of the Woodland Home in 1979. General Appropriations Act, Acts 1979, 66th Leg., ch. 843, art. IV, 01, at 2844. In other words, the Woodland Home was a landmark after legislature had placed its stamp of approval on the restoration project currently in progress.
SUMMARY The Board of Regents the Texas State University System must obtain a permit Texas Antiquities Committee before completing renovation work on the Sam Houston Woodland Home *7 Mr. Fred Wendorf - Page 7 (Mb'-378)
in Huntsville which it contracted in May, 1980.
MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Eva Loutzenhiser
Jim Moellinger