                    April 26, 1968



Mr. Harry B. Kelton, Director        Opinion No. M-225
Texas National Guard
  Armory Board                       Re:   Whether certain available
Austin, Texas 78711                        funds of the Texas National
                                           Guard Armory Board,,either
                                           in the State Treasury or in
                                           banks be legally disbursed
                                           as cash consideration for
                                           lands to be acquired at
Dear Mr. Kelton:                           Camp Maxey.

          you have requeste.dan opinion as to whether certain funds
in the State Treasury or in banks may be expended for the purpose
of acquiring land by the Texas National Guard Armory Board. You
state in your letter as follows:

          "In consummating an exchange of lands in
     the Camp Maxey area with the Corps of Engineers,
     as provided in House Bill No. 641, Acts, 1967,
     60th Legislature, we anticipate further land
     transactions with private land owners in the
     acquisition of approximately 610 acres which
     may require the Armory Board to disburse some
     cash consideration. Based on land values es-
     tablished and used in exchanges with the Corps
     of Engineers a total cash consideration should
     not exceed $SO,OOO.OO.

          "In addition to tracts of land acquired
     by the Armory Board from the Federal Government
     in exchange.for Camp Maxey land there will be a
     cash,consideration of $257.806.60 which we shall


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                                                         .
                                 :




Mr. Harry B. Kelton, page 2    (M-225)




     deposit in the State Treasury as provided by
     Article 5931-9 and 5931-10 of House Bill No.
     406. Acts, 1967, 60th Legislature. In your
     opinion could we legally deposit such proceeds
     to other than the State Treasury?



          "In your opinion, could any of our available
     funds either in the State Treasury or in banks
     be legally disbursed as cash consideration for
     lands to be acquired at Camp Maxey?"

          Articles 5931-9 and 5931-10, Vernon's Civil Statutes,
as amended by House Bill No. 406, Acts 60th Legislature, Regular
Session 1967, ch. 186, p. 415, at pages 419 and 420, read as fol-
lows:

          "Art. 5931-9.   Transfers and sales.

           "The board may receive  from the Adjutant
     General state-owned National Guard Camps and
     all land and improvements, buildings, facilities,
     installations, and personal property in connection
     therewith and administer the same or transfer it
     and/or any of the board's other property to the
     Board of Control for sale, or make proper disposal
     of such property otherwise when designated by the
     board and the Adjutant General as 'Surplus' and
     when in the best interest of the Texas National
     Guard, its successors   or components. The Armory
     Board and the Board of Control are further au-
     thorized to remove, dismantle, and sever, or au-
     thorize the removal, dismantling, and severance
     of any of said property to accomplish the above
     purposes. All of such property so designated for
     sale, shall, when transferred by the Armory Board,
     be sold by the Board of Control to the highest
     bidder for cash and in the manner provided by
      law for the sale of property belonging to the
      state which is no longer needed, and all funds


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or.   Harry   B. Kelton, page 3 (K-225)



       received from such sale shall be deposited in
       the State Treasury to the credit of the Texas
       National Guard Armory Board for the use and
       benefit of the Texas National Guard or their
       successors or components; provided, however,
       that none of these funds may be expended ex-
       cept by legislative appropriation.

            "Article 5931-10. Conditions requiring
       reservation of mineral interests.

            "Any sale or deed made pursuant to the
       terms of this Act shall reserve unto the State
       of Texas a one-sixteenth mineral interest free
       of cost of production; provided, however, that
       the board shall be authorized to reconvey to
       the original grantor or donor all rights, title,
       and interests, including mineral interests, to
       all or any part of the lands conveyed by such
       grantor or donor, and the board shall further
       be authorized, upon a negotiated basis at fair
       market value, to convey to such original grantor
       or donor improvements constructed on the land to
       be reconveyed. All funds derived from any such
       sales shall be deposited by the board in the
       State Treasury, as hereinbefore provided with
       regard to other funds derived from other authorized
       sales."

          Article 5931-5, as amended by House Bill No. 406, supra,
p. 416, provides, in part, as follows:

              "Art. 5931-5.   Specific powers.

            "The board shall possess but is not
       limited to the following powers:
              II
               . . .

            "(6) to acquire by gift or purchase, for
       use as building sites or for any other purposes


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or. Barry B. Kelton, page 4 (~-225)



     deemed by said board 'to be necessary in con-
     nection with or for the use of units of the
     Texas National Guard, prowrtv of anv and
     everv description. whether real, wrsonal.
     or mixed. . . .'I (Rnphasis  added.)

          Sections 1 and 2 of House Bill No. 641, Acts 60th Leg-
islature, Regular Session 1967, ch. 275, p. 661, providet

          "Section 1. The Texas National Guard
     Armory Board is hereby authorized to convey
     by special warranty deed to the Corps of En-
     gineers of the United States Army all rights,
     title and interests in all or any part of the
     lands at Camp Maxey, Lamar County, Texas, and
     to accept from the Corps of Engineers acting
     for the United States Army conveyances of the
     lands to be received in exchange and to be used
     for the training of units of the Texas National
     Guard.

          "Sec. 2. The Texas National Guard Armory
     Board is further authorized to buy, sell, convey
     and exchange all rights, title and interests, in-
     cluding mineral interests, in all or any part of
     the lands in Camp Maxey, including such lands
     hereafter acquired in exchange from the Corps
     of Engineers of the United States Army: provided
     such lands received or conveyed are for the pur-
     pose of consolidating or joining the various
     tracts within a common perimeter to reduce or
     eliminate isolated privately owned tracts that
     would require the rights in ingress and egress
     at Camp Baxey."

          The current General Appropriation Act for the year
ending August 31, 1968, (Senate Bill No. 15, Acts 60th Legisla-
ture, Regular Session,p. 2152)contains the following appropriation
to the Texas National Guard Armory Board:

          "There is hereby appropriated to the Texas
     National Guard Armory Board all funds which have

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Mr.   Harry   B. Kelton, page 5 (M-225)



       been or may be derived from sales of State-
       owned National Guard camps and other property
       owned by the Texas National Guard Armory Board
       and of land, improvements, buildings, facilities,
       installations and personal property in connection
       therewith, as authorized by House Bill No. 406,
       Acts, 1967, 60th Legislature. Such funds shall
       be expended by the Texas National Guard Armory
       Board for the use and benefit of the Texas National
       Guard for one or more of the following purposes:
       (1) As a participating fund in the construction
       of armories financed in part by the United States
       Government: ,or (2) As a construction fund to be
       used by the Armory Board: or (3) As a debt-servic-
       ing fund as provided in House Bill No. 406, Acts,
       1967, 60th Legislature, Regular Session. Provided,
       however, that all such funds as are not actually'
       used for the purposes hereinbefore specified shall
       remain on deposit with the State Treasurer to the
       credit of the Texas National Guard Armory Board
       for the use and benefit of the Texas National
       Guard, their successors or components, as pro-
       vided in House Bill No. 406, Acts, 60th Legisla-
       ture. There is hereby re-appropriated to the
       Texas National Guard Armory Board all sums refunded
       to-said Board from any source when such funds were
       originally expended for any of the purposes enum-
       erated in Items 1 through 5 above. Such re-appro-
       priated funds may be expended for any of the pur-
       poses enumerated in Items 1 through 5 ab~ove."~'~
                                                       ~~~

          Subdivision 6 of Article 5931-5 specifically authorizes
the       National Guard Armory Board to acquire by purchase pro-
      Texas
perty of any and every description whether real, personal or mixed;
therefore, the board has the authority to acquire by purchase the
land described in your request.

          The Legislature specifically provided that funds derived
from sales of state-owned National Guard camps and other property
owned by the Texas National Guard Armory Board "shall remain on
deposit for the use and benefit of the board." The Legislature


                              -1082-
Mr. Harry B. Kelton, page   6 (M-225)



did not appropriate monies to the board for the all inclusive
purpose of carrying out the specific powers granted the board
by House Bill No. 406. Gn the contrary, the Legislature limited
the purposes for which the appropriation could be expended to
three (3) specific purposes, namely: "(1) As a participating
fund in the construction of armories financed in part by the United
States Government: or (2) As a construction fund to be used by the
Armory Board: or (3) As a debt-servicing fund as provided in House
Bill No. 406, Acts, 1967, 60th Legislature, Regular Session."

          The acquisition of land is not "a participating fund in
the construction of armories;" not "a construction fund to be used
by the Armory Board;" and is not "a debt-servicing fund." There-
fore, such monies have not been appropriated for the purpose of
acquiring land. The phrase "shall remain on deposit for the use
and benefit of the board" does not constitute an appropriation:
rather, such language prevents such monies from reverting to the
General Revenue Fund of the state. you are, accordingly, advised
that monies in the State Treasury may not be expended for the pur-
chase of land except as a necessary incident to the construction
of armories. Since the board is specifically authorized by the
provisions of Subdivision 6 of Article 5931-5 to acquire land by
purchase, the board may expend for the purchase of land monies in
its custody and control so long as such monies are not in the State
Treasury.

                      SUMMARY

          Proceeds received by the Texas National Guard
     Armory Board in consummating an exchange of land in
     the Camp Maxey area are to be deposited in the State
     Treasury. Such monies are not appropriated by the
     Legislature for the purchase of land and, therefore,
     none of the appropriated funds may be expended for
     such purpose. However, monies under the control of
     the Board not in the State Treasury may be expended
     for the purchase of land.




                             -1083-
t&. Harry B. Kelton, page 7 (M-225)



Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Roger 'Qler
John Grace
Ray McGregor

A. J. CARUBBI, JR.
Bxecutive Assistant




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