           TEEEATTBRNEYGENERAL
                    OF TEXAS
                   Auwrmr.   TEXAS   78711


                         October 6, 1977




 Honorable G. M. Sawyer              Opinion No. H- 1067
 President
.Texas Southern University           Re: Whether Texas Southern
 Houston, Texas 77004                University has the power of
                                     eminentdomain.

Dear President Sawyer:

     you have asked whether Texas Southern University has the
power of eminent domain.

      Prior to 1971, section 5 of article 264313,V.T.C.S.,
                  .
'provided,in pertinent part:

          The Directors [of Texas Southern University]
          are hereby given the power and authority
          . . . to acquire, stake, appropriate, hold,
          and,enjoy the title to such land and other
          property as they may deem necessary . . .
          either by purchase or otherwise: and to that
          end they shall have the right to exercise the
          power of eminent domain and to condemn such
          land for such uses and purposes, in the
          manner prescribed in Title 52, Revised Civil
          Statutes of Texas of 1925, as amended. . . .

In 1971, Title 3 of the Education Code was enacted by House Bill
1657, and article 264313was among the statutes repealed thereby.
Acts 1971, 62nd Leg., ch. 1024, at 3322.

     However, the bill declared it was a "non-substantive revi-
sion of the higher education laws of this state." Id. at 3072.
(Emphasis added). It contained a clear statement ofegislative
intent:
          This is intended as a recodification only
          and'no substantive changes are intended by
          this legislation.

Id. at 3319. Article 264313, section 5, V.T.C.S., was effectively
replaced in the 1971 revision by section 106.35 of the Education
Code, which reads as follows:




                          pt 4572
Honorable G. M. Sawyer   - page 2     (H-1067)



          The board on behalf of the university may
          acquire by purchase, exchange, or other-
          wise any tract or parcel of lanhin Harris
          County that is contiguous or adjacent to
          the campus of the university when the board
          deems the land necessary for campus ex-
          pansion.

(Emphasis added]. When this provision, formerly article 2643d-1,
V.T.C.S., was' enacted, the board had eminent domain power.under
the express terms of article 2643b. See Acts 1961, 57th Leg.,
ch. 413, 9 1, at 938. Thus, the Univzity     could use its eminent
domain power to acquire land in Harris County adjacent to the
campus. The replacement of article 2643b, section 5, V.T.C.S.,
with section 106.35 of the Education Code may indicate that
the Legislature believed that section 106.35 preserved the
University's eminent domain power.

     Since section 5 of article 264313 was not specifically
reenacted in Title 3 of the Education Code, the repealer clause
appears to conflict with the declaration of legislative intent
contained in the new Code. It is well established that, if a
new code is unclear or ambiguous, resort may be had to prior
statutes to explain the legislative intent.         Camden Fire
Insurance Ass'n. v. Harold E. Clayton & Co., %-%.2d    1029 (Tex .
1928); Hickerson v. State, 275 S.W.2d 801, 802 (Tex. Crim. App.
1955). Since section 106.35 refers to other non-enumerated
methods of acquiring land, we believe there is an ambiguity
which permits reference to the prior statute. Furthermore, a
statement of repeal does not necessarily prevail over conflict-
ing portions of the same statute. In Ex parte Copeland, 91 S.W.Zd
700 (Tex. Crim. App. 1936), the Court of Criminal Appeals held
that
          *[a] clause in a statute purporting to re-
          peal other statutes is subject to the same
          rule of interpretation as other enactments,
          and the intent must prevail over literal
          interpretation.'  An absolute repeal may be
          controlled as a qualified or partial repeal,
          where other parts of the statute show such
          to have been the real intent.

91 S.W.2d at 701-02. In our opinion, the repeal of article
264313 was not intended to affect ,the exercise of the eminent
domain power for the land acquisitions permitted by section
106.35 of the Education Code. Compare Attorney General Opinion
H-791 (1976).




                            P. 4573
.     .




     Honorable G. M. Sawyer    ,- Page 3    (H-1067)



          Although, as the Texas Supreme Court has observed,

               the power of eminent domain must be con-
               ferred by the Legislature, either expressly
               or by necessary~ implication, and will not
               be gathered from doubtful inferences,

     it is also true that strict construction

               does not require that the words of a stat-
               ute be given the narrowest meaning of which
               they are susceptible. The language used by
               the Legislature may be accorded a full
               meaning that will carry out its manifest
               purpose and intention in enacting the sta-
               tute. . . .

      Coastal States Gas Producing Co. v. Pate, 309 S.W.Zd 828, 831
      (Tex. 1958). In Barnidge v. United States, 101 F.2d 295 (8th
      Cir. 1939), a federal appellate court held that a federal
      statute which conferred authority upon the Secretary of the
      Interior "to acquire . . . property . . . by gift, purchase,
      'or otherwise'," included the power of eminent domain, since
      a general~condemnation authority on the part of the federal
      government had been previously enacted. 101 F.2d at 297-98.
    ~ In our opinion, this principle is not, standing alone, suffi-
      cient to, convert the "or otherwise" language of section 106.35
      into a general grant of eminent domain power, since there is
      no Texas statute which provides for a general condemnation
      authority. When the principle of Barnidge is considered
      together with the ambiguous nature of Title 3 of the Education
      Code; however, we believe that a court would probably find
      that Texas Southern University presently may exercise the
      power of eminent domain for purposes of section 106.35 of the
      Education Code.
                              SUMMARY

               A court would probably find that the
               Board of Directors of Texas Southern
               University may exercise the power of
               eminent domain for land acquisitions
               permitted by section 106.35 of the
               Education Code.




                                  p. 4574
    Honorable G. M. Sawyer       -,Page 4    (H-1067)


                                        ry truly yours,


                                              A%@
                                             . HILL
                                             ey General of Texas

    APPROVED:




v




    C. ROBERT H!3V$H, Chairman
    Opinion Committee

    jst




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