.Honorable D. C. Greer       Opinion No. C- 434
 State' Highway Engineer
 Texas Highway Department    Re:   Whether the State Highway
 Austin, Texas                     Commission, under the au-
                                   thority granted by Article
                                   66738, V.C.S., can legally
                                   sell surplus land and im-
                                   provements directly to the
                                   City of Lamesa for the estab-
                                   lished value without adver-
                                   tising and without requesting
                                   sealed bid8 from the general
Dear Mr. Greer:                    public under the Pacts statea.

This is in reply to your letter requesting an opinion from
this office as to %&ether under the provision8 of Article
6673a, Vernon's CivzU Statutes, the State Highway CammiSSiOn
can legally sell certain   surplus land and improvements di-
rectly.to the City of Damesa for the established value of
the land ,and improvements, such a sale to be without adver-
t%ising and without requesting 8ealed bid8 from the general
public.

According to the fact8 stated,in your letter, the City of
Lamesa deeded to the State of Texas certain ground8 in
Dawson County for u8e by the Texas Highway Department a8 a
maintenance site, without charge to,the State though the
deed recited a '$10.00 cOn8ideratiOn. your advised that the
State ha8 since placed valuable improvements. on 'the prop-
erty. The Highway Department has constructed building8 at
a new site, leaving the land acquired from the City of
Lameaa, and the fmprovements located thereon as surplu8.

The pertinent provisions    of Article 6673a provide:

        "Sectionl.    Whenever the State Highway'
     C0@&88iOn  determine8 that any real p~roperty,
     or interesttherein,   heretofore or hereafter
     acquired by the State for highway purposes,
     is no longerneeded   for such purposes, and
     in the ca8e of highway right-of-way it has

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    Honorable D. C. Greer, page 2 (C-434)



         further determined that such right-of-way
         is no longer needed for use of citizens as
         a road, the State Highway Commission may
         recommend to the Governor that such land
         or interest therein be sold, and the
         Governor may execute a proper deed convey-
         ing all the State's rights, title and in-
         terest In such land. It shall be the duty
         of the Commission to determine the fair and
         reasonable value of the State's interest in
         such land and to advise the Governor there-
         Of. All money derived from such sales shall
         be deposited i!ithe State Treasury to the
         credit of the State Highway Fund. Provided
         further, that where right-of-way property
         owned by the State wa8 acquired by a city
         nor county and the State Highway Commission
         determines that said right-of-viay property
         should be sold, such property shall be sold
         with the following priorities:

            "(1)   To abutting or adJoining landowners;

             "(2) To original grantors, heLr8 or
         .assigns of the original tract from whence
          the right-Of-Way wa8 conveyed; or

            “(3)   To the general public.

            "Notice of said sale shall be advertised
         at least twenty day8 before the day of sale
         by having notice thereoS,published in the
         mllsh    IangUage once a week for three con-
         secutive weeks preceding 8UCh.8ale in a new8-
         paper In the county in which the real e&ate
         18 located. Such sale shall be made on a
         sealed bid ba8is,'md   said land shall not be
         '8Old for less than the value recommended by
         the State Highway Commission a8 provided above.

            ‘Upon  recommendation of the State Highway
         Ccmmission, the Governor may execute a proper
         deed exchanging any such real property, or in-
         terest therein, either a8 a whole or part con-
         sideration, for any other real property, or
         Interest therein needed by the State for high-
         -    purposes.

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Honorable D. C. Greer, page 3 (C-434)



         "Provided further, that upon recommen-
     dation OS the State Highway Commission the
     Governor may execute'8 proper deed relin-
     CpiShing  and conveying the Statets right,
     title aud interest in such real property
     as follows:

        "(a) IS title.to the State was acquired
     by donation, convey to the grantor, his
     heir8 or assigns; or if acquired by purchase
     by a county or city, convey to the county or
     city, or to the grantor, his heirs or assigns
     at the request of the county or city."

It.18 the opinion of this office that under the facts stated
in your'letter the State Highway Commission can, under the
authority granted by Article 6673a, legally sell the surplus
land aud Improvements directly to the City of Lamesa for, the
established value~of the land and improvements.   The statute
clearly provides the authority in such an.instance cited in
your letter. We call your attention to the last two para-
graphs of Article ,6673a above quoted, to the effect that upon
reconssendation of the State Highway Commission the Governor
,may execute a proper deed comeylng the State's intereat in
such real property if title to the State wa8 acquired by
donation, convey to the grantor.and if acquired by purchase
by a county or city,,convey to the'county or city, or to
the grantor, at the request of the~county or city. In the
first paragraph OS tRi8 statute it is provided that "it
shall be the duty of the Commission to deters&e   the fair
and reasonable value OS the State's interest in,such land
and to advise the Governor thereof."

we do not thi.I& that in an in8taXEe Such a8 th%S the stat-
ute require8 notice of the sale to be advertised Qr that
sealed bid8 be requested from the general public.

The ca8e of El Paso County v. City of El Paso, 357 .S.W.2d
783 (Tex.Civ.App. 19621, sets forth certain reasoning which
We think would apply in this in8tauoe, that 3.8:

        'We think the statutes hereinabove referred
     to do apply wherever a political SUbdiViSiOn,
     subject t0 8uCh 8tatute8, desire8 t0 dispose
     of any of it8 public~land to an .individual or
     private agency, but not where such political
     SUbdiViSiOn with the power of eminent domain


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Honorable D. CL ,Greer, page 4 (C-434)



     and condemnation chooses to deal with it8
     opposite number and reach an agreement as
     to the change of public use, rather than
     to resort to the expensive and tedious
     medium of litigating the entire matter
     through the courts, thereby holding up
     the public benefit and depleting to some
     extent the tax funds of the subdivisions
     involved."

While the statutes referred to in the El Paso case above
are Article 1577 and Article 6m8a, thmiple        that a
valid sale can be effected between the State and political
subdivisions without advertising and requesting sealed bids
frown the general. public is amply upheld.

The reasoning OS the Court in
District v. &en&an,   164 S.W.:   .__ _~~
error ref. w.o.m.), we think applies in&i   .8 iIl8tanCe.
Syllabus tw0 in that Ca8e states:

        "Where land was CO&eyed to a city for
   '.park purposes restricting building thereon
     to the erection of a band etand, and wa8
     later conveyed to 8chOOl district, and city's
     grantor had waived reversion right8 and city
     and school authoritier, had agreed upon u8e of
     the property for school purposes a8 the para-
     mount public 088, condemnation proceeding was
     unnecessary. Vernon*8 Ann.Civ.St. art. 11Ggc."

&I the kingsville   Independent School District case above,
the court said:

       "The city, .aoting through, its mayor and
    co113i88ioner8, ha8 decided that the park
    would be serving a better public use if
    abandoned as a.park~ and converted to school
    ~OSe8.     Under 8Uch CirCWWtanCe8    there i8
    no occaeion to litigate the question a8 to
    the paramount public use of the property."

The court in the kingsville ca8e further stated:

        "Applying the same rule here, if the City
     and the School District can agree upon the
     paramount public u8e of the property, why
     should they be compelled to institute con-
     demnation proceedings?'
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Honorable D. C. Greer, page 5 (C-434)



We realize, of course, ~that the necessity of condemnation
proceeding8 was in question in the K
of 'a sale without advertising and w?&%$%$u::"tz:::;:d
bids from the general public as in this instance, but the
authority of ~the City and the School District to agree upon
the paramount public use of the property as upheld by the
Court, is applicable here.

In the case of El Paso County v. ,City of El Paso, supra, the
court said:
     u      In neither opinion city of Tyler v..~.
     &&h'County,~l51     Tex. 80;.246 S.W.2d 601, -:
     and Kingsville Inde enaent School District
     v. Crenshaw, supra doe8 the Supreme Court
     or the Court of C3? vi1 Appeal8 mention or
     refer to the necessity of complying with
     Article I.577 or Article 60788 of the Texas
     statutes.    We think this 18 probably,true
     because Article   1




     use orbenefit.    It is difficult to compre-
        d why   ithe; the Legls.lature through
     A%cle    i&7, br. any court, wouid require
     the county to sell land at public auction
     when SUCh land i8 impressed with a public
     use or trust.~ . . ." (Eknphasis Added.)

Thisland wa8 deeded to the State of Texas for u8e by the
Texas Highway Department and is State property over which
the State has-full control and authority.

        'In the absence of constitutional restric-
     tions, the State may sell and di8pO8e of its
     property on it8 own term8 and conditions.   And
     legislative enactment8 usually govern the
     manner in which~state land8 may be disposed
     of." 52 Tex.Jur.2d 739, State of Texas, Sec.
     28.
Article 66na sets forth the manner in which 'the land and
improvements. in question may be sold. You are therefore
advised that the State Highway Commission can legally sell


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          Honorable D. C. Creer, page 6 (C-434)



          the surplus land and improvements described in your letter,
          to the City of Lamesa for the established value without
          advertising and kithout requesting sealed bids from the
          general public.


                                       SUMMARY

                    The?State Highway Commis8ion under the
                    authority granted by Article 6673a, V.C.S.,
                    can legally sell the surplus land and im-
                    provements in this instance directly to
                    the City of Damesa‘for the established
                    value of the land and improvement8 without
                    advertising and without requesting sealed
                    bid8 from the general public.

                                          YOU'S very truly,

                                          WAGGONER &RR
                                          Attorney General of Texas



                                            Den M. Harrison
                                            A8sistatlt
          Bwirasg

          APPkVELk

          OPINIOIV coz&MTE!J

          W. V. Geppert, ahaim
          Arthur Sandlin
          Paul Phy
          James strock
          MiltOn RiChardSOn

          APPROVED~ORTHEA~OMEYGElqERAL
          By:   Stanton Stone




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