                         June 23, 1958


General Dallas J. Matthews               Opinion No. ~~-460
Director, Texas National Guard
    Armory Board                         Re::The ~authority of
Austin, Texas                                the Texas National
                                             Guard Armory Board
                                             to eell'property
                                             located at Waoo and
Dear General Matthews:                       lioueton,Texas.
            Ina recent opinion request of this offloe ycu
state the following:
            "The Texas National Guard Armory Board
       owns two tracts of land which~lt Is desirous
       of offering for publio sale to the highest
       bidder.
            "One of these traots of land is looated
       in Houston, Harris County, Texas, on Post Oak
       Road. This tract of approximately ten aares, is
       unimproved and was acquired by the Board in 1938
       (19471) by oonveyanQe from the Houston Cavalry
       Club. The oopy of the deed to this property is
       enolosed for your convenience. At the time of its
       acquisition, the Armory Board intended to construct
       thereon faoilities Par use of a unit of the Texas
       National Guard. However, it subsequently developed
       that the property was not suitable for such use and
       It has remained vacant for several years. At no
       time since Its acquisition has there been any lien
       or debt against this tract of land. Through the
       years it has inoreased In value due to the growth
       of the City of Houston and is presently appraised
       at something in excess of $100,000.
            "The seoond piece of property with whloh the
       Board is concerned IS known as the Grand Lodge Bulld-
       ing In downtown Waco, Texas. This property consists
       of a lot and a two-story building which was aoqulred
                                                               c




Qeneral Dallas J. Matthews, page 2 (~~-460)

       from the Grand Lodge of Texas by deed, a copy
       of which is enclosed. You will note that there
       was a deferred consideration secured by a deed
       of trust lien against the premises. The debt
       was paid off in 1956, and the lien against the
       property was released at that time. A oopy of
       the release is also enclosed herewith for your
       convenience.
            "Both of the properties above referred to
       are now surplus to and in excess of the needs
       of the Texas National Cuard Armory Board, which
       desires to sell them to the highest bidder for
       cash andapply the proceeds of the sale to the
       construction of other armories throughout the
       State. In this connection, your attention is
       respectfully invited to Article 5890b, V.C.S.,
       the statute which created and empowered the
       Armory Board, and specifically to Section 2(f). . .
            "Also pertinent to this inquiry is Section
       3 of Article 589Ob, with reference to transfer
       of property by the Board to the State of Texas.
            "In addition, we would appreciate your view
       as to the procedure to be followed in effecting
       such sale if you conclude that It Is authorized."
            Section 1 of Article 589Ob, V.C.S., creates the
Texas National Guard Armory Board.
            Section 2 of said Artlole makes it the duty of the
Texas National Guard Armory Board to
            11
             . . . have charge of the acquisition, con-
       struction, rental, control, maintenance and opera-
       tion of all Texas National Guard Armories. . ."
            This duty of the Board is likewise expressed in
the emergency clause of the 1937 and 1939 amendments to Article
589Ob, V.C.S.
            Acts 45th Leg., R.S., p. 740,     ch. 366,   Section 3
reads in part as follows:
            "The fact that it is essential that the exlst-
       ing law relative to Texas National Guard Armories
       be amended so as to authorize and permit the is-
       suance of seouritles to obtain funds for construc-
       tion and acquisition of one or more Armories and
General Dallas J. Matthews, Page 3 (wk'-460)

        thereby take advantage of the favorable oppor-
        tunity existing at this time for the securing
        of funds for the purposes contemplated by this
        Act, . . .' (?Xmphaeisadded.)
             The second Act, Section 3 reads In part as fol-
lows:
             "The fact that It Is essential that the
        existing law relative to Texas National Guard
        armories be amended so as to authorize and per-
        mit the immediate Issuance of seouritles to ob-
        tain funds for construction and acquisition of
        armories and thereby take advantage of grants
        and loans from the Federal Government and Others
        for armory purposes, creates an emergenoy. . .'
        (Emphasis added.)
            Considering the above quoted portion of Section
2 and the above quoted portions of the emergenoy clauses to
Acts 1937 and 1939 we see that the primary purpose for the
creation of the National Guard Armory Board was to provide
a method for obtaining armories for the Texas National Guard.
In furtherance of this aim the Legislature by the provlslons
of Section 2 has delegated to the National Guard Armory Board
"all the powers necessary and convenient for the accomplish-
ment of such duty including but without being limited to the
following express powers". Section 2 of Article 589Ob then
sets out in lettered paragraphs (a) through (i) a number of
express powers which may be utilized by the Board to achieve
and accomplish Its primary purpose and duty, I.e., the ac-
quisition of National Guard Armories. One of the enumerated
express owers contained in Section 2 is that found in Sec-
tion 2(fP which reads in part:
              "To acquire, by gift or by purchase, for
        use 2.~building sites or for any other purposes
        deemed by said Board to be necessary or desirable
        in connection with or for use of units of the
        Texas National Guard, property of any and every
        description, whether real, personal or mixed, in-
        cluding, but without limitation on the foregoing
        leasehold estates in real property, and hold, main-
        tain, sub-lease, convey and exchange such property,
        in whole or in Dart. and/or to oledze the rents.
        issues and profits thereof in whole-or in part;.
        . . .11
            SeCtiOn 2(g) lik8WiSe authorizes the conveyance
and exchange of property owned by the Board In the following
language:
General Dallas J. Matthews, page 4 (~~-460)

            "To construot buildings on any of Its
       real property, whether held in fee simple or
       otherwise, and to furnish and equip the same
       and to hold, manage and maintain all of said
       property and to lease to the State of Texas,
       in the same manner as hereinafter provided
       with respect to other property, the buildings,
       and the sites thereon situated, which it may
       construct at Camps Mabry, Hulen and Wolters,
       and to lease and sub-lease conve and exohange,
       In whole or in part, all 0; its pb*erty(g,
       located in either of said camps, . . .
       phasis added.)
             By the provisions of Seotlon 2(h) the Legislature
has authorized the Board to borrow money and to issue and sell
bond debentures and other evidences of Indebtedness with the
purpose of acquiring sites for armories and for the construc-
~tion of armories, aaid indebtedness to be secured by pledge
of the rents, issues and profits of the property held by the
Board.
            Clearly the Legislature has delegated to the Texas
National Guard Armory Board the authority to acquire, control,
incumber, exchange, and convey property in furtherance of Its
primary duty to obtain armories for the Texas National Guard;
however, the Legislature has provided by Section 3 of Article
5890b that when the indebtedness against any of the property
so obtained by the Board for armory purposes is extinguished,
the Hoard's delegated authority and control over such property
terminates and thenceforth is invested directly in the Legis-
lature. Section 3 reads as follows:
            "As and when any of the property owned by
       the Board shall be fully paid for, free of all
       liens, and all debts and other obligations ln-
       curred in connection with the aoquisition or
       construction of suoh property have been fully
       paid, the Board shall donate, transfer and con-
       vey such property, by appropriate instruments
       of transfer and conveyance, to the State of Texas,
       and such instruments of transfer and conveyance
       shall be kept in the custody of the Addutant Gene-
       ral's Department."
            At first glance Section 3 appears to be incompatible
with Section 2(f) and 2(g). However, the three sections are eas-
ily harmonized. As pointed out above the primary function of
the National Guard Armory Board is to provide armories for the
Texas National Guard. In furtherance of this function the Board
is authorized by Seotlon 2(f) to acquire by gift or purchase
General Dallas J. Matthews, page 5 (~~-460)


real property. Undoubtedly many times a situation may arise
wherein the property so acquired is not directly suited for
an armory.site and Is never utilized as such by a Texas Natlon-
al Guard unit. And undoubtedly situationa will arise where
property'is suited for armory purposes at the time of acqulsi-
tion but oeases to be so suited by the time armory oonstruo-
tion can be flnanoed and commenced. By Seotlon 2(f) the Legis-
lature has contemplated suoh ocauranoes and has provided for
the conveyance and exohange by the Board of auoh unsuitable
property, in order that the Board might proceed with its para-
mount or primary function, i.e., the acquisition and construa-
tion of armories for the Texas National Guard.
            However, we believe it is quite plain that by
the provisions of Seotlon 3 the Legislature intended to ob-
tain direct control of the armories acquired or construoted
by the National Guard Armory Board and utilized by Texas
National Guard units once the armories were free and clear
of the incumbrances of acquisition and construction. This oon-
struotion of Sections 2(f), 2(g) and 3 gives recognition to
all three sections and likewise fulfills the expressed pur-
pose of Article 589Ob.
            In the instant case the tract of land located in
Harris County was acquired by the Board for the purpose of
constructing facilities  for a Texas National Guard unit but
before this property could be developed by the Board and put
to such a use by a Texas National Quard unitit became un-
suitable for such purpose. We believe the Legislature had
.tiiis
     type of situation in mind when it provided under Section
I;   that the National Guard Armory Board might "convey and
exchange such property". Therefore, we inform you that the
,Te.xas
      Katlonal Guard Armory %ard is authorized to sell the
property looated in Harris County, Texas, as authorized by
Section i-!(f)of Article 589Ob, V.C.S.

            In a conference with the attorneys for the National
Guard Armory Board we obtained further information concerning
t.heproperty in Waco, Texas. This property was acquired for and
used as an armory by a Texas National Guard unit and was so
used at the time of the retirement of the debt of acquisition
against the property in 1956. We believe that the Waco proper-
ty falls directly under the provisions of Section 3 of Article
j&Ob and that this property is now under the direct control
of the Legislature. We therefore inform you that the Texas
National Guard Armory Board is not authorized to sell the
property described In your opinion request located in Waco,
McLennan County, Texas.
            You have also asked the procedure to be followed
in effecting suah sale if we conclude that a sale is authorized.
General Dallas J. Matthews, page 6 (~~-460)

            While we believe Section 2(f) authorizes the Board
to sell property such as that looated in Harris County, no
method or procedure of sale Is set forth by the Legislature in
Article 5890b. We believe under this circumstance, the Legls-
lature has left the procedure to be followed for suah a sale
within the discretion of the Board. However, the Legislature
has provided procedures for the sale of real property by other
State departments, instrumentalities, and agencies. In this
respect we alte to you as a guide the prooedure set forth for
the disposition of realty at public sale by oounties in Article
1577, V.C.S., and for dls oaltlon of public free school land
as set forth in Article 5t21c-3, V.C.S.
                           SUMMARY
             The tract of land free of all liens and ln-
        cumbranaes of approximately 10 acres on Post Oak
        Road, Houston, Harris County, Texas, acquired by
        the Texas National Guard Armory Board for armory
        purposes but never utilized as such by a Texas
        National Guard unit may be sold at public sale by
        the Texas National Guard Armory Board.
             The real property aaquired by the Texas Na-
        tional Guard Armory Board whloh is free of all liens
        and incumbrances, located in Waco, McLennan County,
        Texas, known as the Grand Lodge Building and uti-
        lized as an armory by a Texas National Guard unit
        is not subject to sale by the Texas National Guard
        Armory Board but its disposition is under the direct
        control of the Legislature of the State of Texas.
                                 Very truly yours,
                                  WILL WILSON
                                  Attorney General of Texas


                                       Milton Richardson
                                       Assistant
MR:bh
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
                                     REVIEWED FOR THE ATTORNEY
  L.P. Lollar                        GENERAL BY:
  Richard B. Stone                             W.V. Geppert
