                                         The Attorney                    General of Texas

    JIM MATTOX                                                 December             29,   1983
    Attorney General


    Supreme Court Building             Fred Wendorf,    PhD.                                      Opinion     No.   JM-104
    P. 0. BOX 12543                    Chairman
    Austin, TX. 7871% 2543             Texas Antiquities     Committee                            Re: Effect  of designation   as a
    512/4Y5-2501
                                       P. 0. Box 12276, Capitol      Station                      state archaeological    landmark
    Telex 9101874-1387
    Telecopier   SW475.020~
                                       Austin,  Texas     78711

                                       Dear Dr.    Wendorf:
    714 Jackson, Suite 700
    Dallas, TX. 75202.4508
                                              You ask for clarification            of the effect      of the designation     of
    2141742.0944
                                       real     property      owned by a political           subdivision    to   be a state
                                       archaeological       landmark under the Antiquities         Code, chapter    191 of the
    4824 Alberta    Ave., Suite 160    Natural     Resources       Code.  You wish to know whether         designation    of a
    El Paso. TX. 799052793             specific      piece     of    real  property     owned by an independent         school
    9151533-3434
                                       district     requires      the execution     and delivery    of a deed to the Texas
P
                                       Antiquities      Committee.
     x)1 Texas, Suite 700
    Houston. TX. 77002-3111                  Section     191.092(a)           states      that
    713/223&S5
                                                    sites,      objects,      buildings,        artifacts,       Implements,
                                                    and      locations         of    historical,           archaeological,
    808 Broadway, Suite 312
    Lubbock, TX. 79401-3479                         scientific,          or    educational         interest,        including
    SOS/747-5233                                    those      pertaining         to prehistoric           and historical
                                                    American Indians            or aboriginal          campsites,        dwell-
                                                    h3.9,      and habitation          sites,      their     artifacts       and
    4309 N. Tenth, Suite B
    McAllen, TX. 785Ol.tSS5
                                                    implements       of culture,         as well as archaeological
    5121682-4547                                    sites     of every character            that are located           in, on,
                                                    or under the surface             of anv land belonaine      -    I to the
                                                    State       of   Texas       or   to      any     county,      city,      or
    200 Main Plaza, Suite 400
                                                    political        subdivision         of     the     state     are     state
    San Antonio, TX. 78205.2797
    51W225-4191
                                                    archaeological          landmarks.         (Emphasis added).

                                       Section    191.093     provides         that
    An Equal Opportunity/
    Affirmative    Action   Employer
                                                    landmarks     under . . . 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 from
                                                    the committee.        (Emphasis added).

                                       Section    191.002     declares         it    to be




                                                                         p.     437
Dr.   Fred Wendorf      - Page 2 (~~-104)




              the public      policy   . . . of the State            of  Texas to
              locate,        protect,      and       preserve           all . . .
              buildings     . . .     and   locations       of       historical,
              archaeological,          educational,         or        scientific
              interest    . . . .

Section     191.051(b)(S)     reiterates    that it is the responsibility     of the
Antiquities       Committee     to “protect     and preserve    the archaeological
resources     of Texas.”       We do not address      any constitutional   question
regarding     the declaration      that municipal   property  is the sole property
of the state of Texas.

       You state     that the Texas Antiquities      Committee interprets        these
provisions     as limiting    its jurisdiction    over properties     designated     as
state    archaeological    landmarks to the protection       and preservation        of
their    value    as such.     We agree     with your  interpretation       of these
provisions.

        It is well recognized          that the legislature         may exercise       authority
over property       belonging     to the state       of Texas or to any county,              city,
or political      subdivision       of the state,        subject    only to constitutional
restraints.       Greene v. Robison,          8 S.W.Zd 655, 659 (Tex., 1928); Houston
v.    Gonzales     Independent       School     District,      229 S.W. 467,          468 (Tex.
1921);    Reese v. Cobb, 135 S.W. 220, 224 (Tex.                      Civ. App. - 1911, no
writ) ; Weekes v. Galveston,              51 S.W. 544, 546-547             (Tex.   Civ. App. -
1899,      writ      ref’d).        The      constitutional          limitations         on     the
legislature’s          control       of     property        owned      by      municipal        and
quasi-municipal        corporations,       such as school         districts,      were defined
in Love v. City of Dallas,              40 S.W.2d 20, 27 (Tex. 1931), where it was
said that the public           interest     in municipal       property      acquired     for its
benefit     did not prevent        the legislature        from controlling         or disposing
of property      without     the consent of the local           governmental       body so long
as such was not done in contravention                  of the trust.         See also City of
Victoria      v. Victoria       County,     101 S.W. 190,         193 (Tex.       1907);     Texas
Antiquities      Committee v. Dallas County Community College                    District,      554
S.W.2d 924, 930-931.

       The Antiquities            Committee       view      that     its   governing       statute
requires     it to protect         and preserve      the value of state archaeological
landmarks      while     the deed of ownership                remains     with    the municipal
corporation     holding      it in trust       for the public          is consonant     with this
principle.      You advise us that designation                 of about five hundred state
archaeological         landmarks        since     1977 has         never     involved     a deed
transferring         ownership         to    the     state.        Thus,      the     committee’s
administrative        construction        of the ambiguous sections              191.092(a)     and
191.093     supports      the conclusion         that such property           is appropriately
retained     by the municipal          corporation      while the Antiquities           Committee
becomes     responsible        for    the preservation           of its     value    as a state
archaeological        landmark.        Roy v. Schneider.           221 S.W. 880. 885 (Tex.




                                     p.   438
.   .


        Dr.   Fred Wendorf     - Page 3, (JM-104)




         1920);   Stanford    V. Butler,      181 S.W.2d 269, 273-274         (Tex.  1944).    The
        Antiquities      Code,    originally      passed   in 1969,     was amended in 1981
        without     major    change.       Consequently,      we believe       that  it   may be
        presumed that the Antiquities             Committee's    interpretation     of the code
        meets with legislative          approval.     Calvert   v. Houston Lighting       I% Power
        Co., 369 S.W.2d 502, 509-510            (Tex. Civ. App. - Austin 1963, writ ref'd
        z.e.);      Railroad     Commission of Texas v. Texas & New Orleans Railroad
        Co.,    42 S.W.2d      1091,    1097-98    (Tex.   Civ.   App. - Austin       1931, writ
        ref'd).

               It follows       that the Antiquities           Code does not require             a deed
        transfer      of   real     property      designated       as a state        archaeological
        landmark or remove it from the management, use, and control                        of cities,
        counties,     or political      'subdivisions     by which they are held for public
        use    and benefit.           However,      the    committee's       custodial       authority
        supersedes      other management and usage rights               to the extent         that the
        latter    would conflict       or interfere      with the committee's          legislatively
        mandated       duty      to     protect       and     preserve       and     a      landmark's
        "archaeological"        value.      Therefore,     we conclude      that the conrmittee's
        interpretation       of 191.092(a)       and 191.093 is a reasonable             construction
        of these statutes         absent contrary       legislative     action    and any evidence
        that such construction            is erroneous      or unsound.       Shaw v. Strong,          96
        S.W.2d 276 (Tex: 1936); Koy v. Schneider,                  221 S.W. 880 (Tex. 1920).

                                                 SUMMARY

                         Where sections        191.092(a)      and 191.093      of the
                     Natural      Resources       Code    have     been     uniformly
                     construed     by those charged with their            enforcement
                     to mean that no transfer          of deed is required         when
                     real    property    owned by a county,         city,     or other
                     political       subdivision      is    designated       a    state
                     archaeological        landmark,      this    construction        is
                     deemed effective        absent legislative       action    to the
                     contrary     or evidence      that the construction          given
                     is erroneous      or unsound.




                                                              Attorney    General    of   Texas

        TOM GREEN
        First Assistant       Attorney    General

        DAVID R. RICHARDS
        Executive Assistant        Attorney      General




                                            p.   439
Dr.   Fred Wendorf   - Page 4 (JM-104)




Prepared    by Colin Carl
Assistant    Attorney General

APPROVRD:
OPINION COMMITTEE

Rick Gilpin,   Chairman
Jon Bibls
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                                p.   440
