Hon. Gordon K. Shearer       OpinionNo.   v-1558
Executive Secretary
Texas State Parks Board      Re:   Authority of the Texas
Austin, Texas                      State Parks Board to
                                   lease concessions in
                                   MacKenzie State Park to
                                   the City of Lubbock for
                                   a period of ninety-nine
Dear Sir:                          years.
          You have requested an opinion upon the follow-
ing problems:
          "(1) Does Senate Bill 19 amend Article
     6070a, insofar as limiting the granting of
     concession contracts to onceyear? . . .
            "(2) If Senate Bill 19 does not amend
     Art. 6070a Insofar as limiting the period for
     the granting of concessions, is there any
     other legislation which would prohibit the
     granting of a 99 year concessions lease, or
     is there any lack of authority on the part
     of the State Parks Board to grant a 99 year
     concessions  lease?"
            You further state:
          "The reason we desire this opinion is
     that we are desirous of entering into a long
     term concessions lease with the City of
     Lubbock. However, we do want to know whether
     or not we have this authority before we nego-
     tiate further with the City of Lubbock."
                         V.C.S., as amended in 1941, pro-
          Article 60'i'oa,
vides as follows:
          "Section 1. The State Parks Board is
     hereby authorized to operate or grant con-
     cessions in State Parks and to operate con-
     cessions or make concession contracts for
     any,causeway, beac,hdrive, or other im-
     provements in connection with State Park
Hon. Gordon K. Shearer, Page 2 - v-1558



     sites wherever feasible. The revenue thus
     earned by the State Parks Board shall, when
     collected, be.placed in the State Treasury.
     The Board may make such rules and regula-
     tions for the carrying out of this Act and
     the laws of this State relative to State
     Parks, as it max deem necessary not in con-
     flict with law.
          Article 607oe, V.C.S. (Senate Bill 19, Acts
51st Leg., 1st C.S. 1950, ch.17, p.78), contains the
following provisions:
          "Section 1. Separate facilities shall
     be furnished In the system of State parks
     for the white and Negro races, and Impartial
     provision shall be made for both races.
          'Sec. 2.   The State Parks Board is au-
     thorized:
          "(a) To make rules and regulations
     for the use of the State Parks and the
     facilities therein by the white and Negro
     races by providing separate parks or sepa-
     rate facilities within the same parks, on
     such basis as will furnish equal recrea-
     tional opportunities and at the same time
     protect and preserve harmony, peace, welfare,
     and safety of the State and the community;
          "(b) To close any park or facility or
     facilities or areas in the State parks where
     separate equal facilities for the white and
     Negro races cannot be furnished, and to re-
     open them when such facilities are available;
          "(c) To lease annually to the highest
     bidder any park or any portion thereof, or
     facility therein, when deemed necessary or
     advisable for protection and upkeep of the
     property. Such lease shall be previously
     advertised once a week for four weeks in a
     daily or weekly newspaper in the county in
     which the park is located. If the county
Hon..Qordon K..Sh,earer,Page 3 - v-1558
                                 .~

     has no such newspaper, such advert~isement
     may be run in a similar newspaper in any
     adjoining ,county. The Board is authorized
     to make additional rules for such leasing.
     The proceeds derived from such lease are
     here~byappropriated to the State Parks Board
     to be used for the improvement of the State
     parks system, and to pay for the expenses
     of advertising the sale or lease.
         "Sec. 3. The fact that the policy of
    the State in requiring separate park faclli-
    ties for white and Negro citlz~ensis necessary
    to preserve the public peace and welfare, and
    to protect the privileges of both the whit~e
    and Negro citizens in the use of the State
    parks; and the further fact that such policy
    should be set forth by statutory enactment
    giving additional powers to the State Parks
    Board to carry out such policy, create an
    emergency and an imperative public necessity
    that the Constitutional Rule requiring bills
    to be read on three several days in each
    House be suspended; and said Rule is hereby
    suspended, and that this Act shall take
    effect and be in force from and after its
    passage, and it is so enacted‘"
          Your first question involves the problem of
whether the provision in Section 2(c) of Article 607oe,
vic.s., for 'annual" leasing of park facilities implied-
ly repeals Article 6070a, which places no time limitation
upon the concession leases made by your Board. This
problem is controlled by the following rule of statu-
tory construction announced bv the Texas Sunreme Court
                          129-Tex. 275, 283, 102 S.W.
,2';
          "Repeal-of laws by implication is
     not favored. 39 Tex.Jur., Section 75, p.140:
     59 C.J., Section 510, p. ~905. In the absence
     of an express repeal by statute, where there
     is no positive repugnancy between the pro-
     visions of the old and new statutes, the old
     and new statutes will each be construed so
Hon. Gordon K. Shearer - Page 4 - v-1558



     as to give effect, if possible, to both
     statutes. 39 G.J. Section 75, ~.140.~
In thus construing the two provisions, the following
considerations found in 1 Sutherland, Statutory Con-
struction ~(3rded.1943) 454 should be kept in mind:
          “Repealing statutes are subject to
     the general rules of statutory construction
     applicable to all legislative enactments.
     Thus, in determining whether or not a re-
     peal has been effectuated, the environment,
     association and character of the statute
     in its field of operation, the history of
     previous legislation, the legislative his-
     tory of the Act, and the nature of the de-
     fect sought to be remedied by its enactment
     are all important factors to be considered
     by the courts."
          In conformance with the above rules of statu-
tory construction, the annual leasing provision in
Article 6070e must be construed as an integral part of
the entire act and therefore as a grant to the Parks
Board of additional power to enable it better to
administrate the segregation policies embodied into
the legislation. The correctness of this result is bol-
stered by the clause, "when deemed necessary or advisable
for protection and upkeep of the property," which follows
the annual leasing provision In Article 607oe, and by
the statement in the emergency clause of Article 6070e
that the act gives "additional powers to the State
Parks Board to carry out such policy."
          In answer to your second question, we have
found no legislation or case law which deprives the
Parks Board of authority to lease the concessions in
MacKenzie State Park for a period of ninety-nine years.
Article 8, Section 6, of the Texas Constitution prohl-
bits the making of appropriations for a longer term than
two years, but the contract you contemplate requires no
appropriation. It has been held that an executive
board may contract for as long a term as it desires if
there is no legislation limiting it and if no debt is
created which would bind a future legislature. Charles
Scribners Sons v. Marrs, 114 Tex. 11, 262 S.W. Y-4).
.




    Hon. Gordon K. Shearer - Page 5 - v-1558


              A further problem which your proposed trans-
    action raises is whether the ninety-nine year lease you
    contemplate is actually a sale rather than a lease.
    Under the following ,rule stated in 3 Thompson, &&
    Property (Perm.ed. 1939) 236, it must be held,to be a
    lease, despite Its unusually long duration:
              "In the absence of any statute to
         the contrary, a lease ordinarily may be made
         for any length of time the partiesmay wish
         . . . Leases may at law be for years or
         life or of perpetual duration. Indeed, they
         may be made for any period which will not
         exceed the interest of the grantor in the
         premises."
    This opinion, therefore, in no way passes upon the
    authority of the State Parks Board to sell concession
    rights.
              You are therefore advised that the State
    Parks Board has the authority under Article 6070a to
    lease the concessions In MacKenzie State Park for a
    period of ninety-nine years, and that this authority
    is neither repealed by Article 607oe nor restricted
    by other existing legislation. This opinion is not
    to be construed as passing upon the question as to
    the authority of the City of Lubbock under its present
    charter to operate concessions In a State park.



                             SUMMARY

                   Article 6070a, V.C.S., gives the
              Texas State Parks Boatidthe authority
              to lease concessions in MacKenzie State
              Park for a period of ninety-nine years.
              This authority is not repealed by Article
Hon. Gordon K. Shearer - Page 6 - v-1558


            6070e (Acts 51st Leg., 1st C.S. 1950,
            ch.17, p.78) nor restricted by other
            legislation.
APPROVED:                    Yours very truly,

Jesse P. Luton. Jr.           PRICE DANIEL
Landpivision                 Attorney General

Charles D. Mathews
First Assistant
                             By&-PA
                                  Thomas Black
TB:bt                                Assistant
