                              ATTORNEY            GENERAL        OF    TEXAS
                                           GREG       ABBOTT




                                            November     10.2004



Ms. Cynthia L. Reed                                       Opinion No. GA-0270
Executive Director
Texas Building and Procurement        Commission          Re: Whether the state owns Republic Square
Post Office Box 13047                                     in the City of Austin, and if so, whether only the
Austin, Texas 78711                                       legislature may act to convey a state interest in
                                                          the property (RQ-0225GA)

Dear Ms. Reed:

       You ask two questions about Republic Square in the City of Austin. In particular, you wish
to know whether the state owns Republic Square, and if so, whether only the legislature may act to
convey a state interest in the property.]

I.      Backeround

         Your questions arise because the United States General Services Administration (GSA) has
asked the City of Austin and the State of Texas to abandon a section of a street that abuts Republic
Square in connection with plans to construct a federal courthouse across the street in a block you
refer to as Block 46. See Request Letter, supru note 1, at l-2. You explain that in 1917, the
legislature enacted a law ceding and granting Republic Square to the City of Austin “for a period of
ninety-nine years” to operate the property for a municipal auditorium and market, “provided,
however, that the state does not by this Act part with any title, color of title, or interest which it now
owns in the property described in this bill, except as granted herein,” Act approved May 17, 1917,
35th Leg., 1st C.S., ch. 11, 5 2, 1917 Tex. Gen. Laws 13-14. See Request Lettersupra note 1, at 1.
In addition, you note that in 1948 the General Land Commissioner asked for an attorney general
opinion regarding whether Republic Square “‘belong[ed] to thePublic School Ftmd”‘and could “‘be
disposed of as Public School Land.“’ Tex. Att’y Gen. Op. No. V-741 (1948) at 2 (quoting letter
from Honorable Bascom Giles, Commissioner, General Land Office, to Honorable Price Daniel,
Texas Attorney General). Attorney General Opinion V-741 concluded that Republic Square did not
“belong to the Public School Fund” and that its disposal “is a matter wholly within the province of
the Legislature,” id. at 4. See Request Letter, supra note 1, at 1.



        ‘Letter fromCynthia L. Reed, Executive Director, Texas Building and Procurement Commission, to Honorable
Greg Abbott, Texas Attorney General (May 12, 2004) (on tile with Opinion Committee, also availabk ot
www.oag.state.tx,us) [hereinafter Request Letter].
Ms. CynthiaL.       Reed - Page 2                        (GA-0270)




        You also note that in 1929, the legislature relinquished              the state’s interest in City of Austin
streets outside the Capitol grounds to abutting landowners:

                          Subject to [certain reservations and easements], there shall be
                  and is hereby relinquished to each owner of land abutting streets,
                  alleys or highways in the City of Austin, Texas, the fee title to the
                  center of the street, alley or highway upon which the particular land
                  abuts, and for the distance along such street, alley or highway that the
                  land abuts.

Act effective August 9,1929,4lst    Leg., 3d C.S., ch. 7,s 1,1929 Tex. Gen. Laws 239: In doing so,
however, the legislature did not relinquish to landowners the public’s easement in City of Austin
streets for street purposes.   See id. 5 2 (“There is hereby perpetually reserved and retained an
easement in, on and along all such streets, alleys and highways for street and highway purposes, and
for such other public purposes as now exist        .“). Thus, as is generally the case, owners of land
affected by this legislation own their land in fee simple to the center of the street, subject to certain
public easements, including “the easement in favor of the public to a right of passage.” City of Sun
Antonio v. City ofBoerne, 111 S.W.3d 22,3 1 (Tex. 2003) (“generally.         unless otherwise provided
in the grant or conveyance, the owner of land abutting a street, alley, or public highway owns the fee
to the center of the road, subject only to the easement in favor of the public to a right of passage”).

         With respect to the GSA’s plans to construct a federal courthouse across the street from
Republic Square, you explain that federal guidelines “require building setbacks of 50 feet from
streets for security reasons. Block 46 would be too small for a courthouse given the setbacks.”
Request Letter, supra note 1, at 2. If, however, the street between the proposed courthouse and
Republic Square “is vacated[,] then the project becomes feasible. Republic Square and the vacated
street area would be landscaped compatible with the federal courthouse.” Id.3 You state that “the
City of Austin and the State of Texas must both enter into       an agreement” to vacate the street.
Id.

II.      Analvsis

        You first ask “whether any act of the Legislature, Attorney General Opinion, or transaction
involving the State subsequent to [Attorney General Opinion V-741 in] 1948 effectively changed



         ‘See Request Letter, supra note 1, at 2.

          ‘State law limits governmental entities’ authority to change the use of or to convey a public square or park. See,
~.~.,TEx.Loc.Gov’TCODEANN.~~~~.OO~              (VemonSupp.2004-05);T~~.P~~~~&W1~~.C0~~A~~.~~26.001-.004
(Vernon 2002); see also Zachry Y. City ofSun Anfonio, 305 S.W.Zd 558, 560 (Tex. 1957) (“It is the general rule that
where land has once been dedicated to public use, such as for park purposes, no use inconsistent with its use as a park
can be made of the property so long as the public is still using the land as a park.“) (citing State v. Travis County, 2 1
S.W. 1029 (Tex. 1893)). We gather from you letter, however, that neither the proposed agreement regarding the street
nor the GSA’s landscaping plans for the vacated street and Republic Square would interfere with Republic Square’s
current use as a public park.
Ms. Cynthia L. Reed - Page 3                    (GA-0270)




the ownership status of’ Republic Square. Id. at 1. We have not located any judicial or attorney
general opinion or legislative action after 1948 addressing the ownership of Republic Square.
However, City of Austin information suggests that since 1948 the city, county, and state have
contested Republic Square’s ownership. See http://www.ci.austin.tx.us/parks/republicsquare.htm
(“Between 1950 and 1960 the park was converted to a parking lot. Ownership of the Public Square
was contested by the city, county and state.“). Whether the ownership of Republic Square has
changed since 1948 in this instance appears to be a factual issue we cannot resolve in an attorney
general opinion. See generally Tex. Att’y Gen. Op. Nos. GA-0128 (2003) at 5 (a question requiring
resolution of particular facts is “not one in which this office ordinarily engages in the opinion
process”); GA-0106 (2003) at 7 (“[tlhis office cannot find facts or resolve fact questions in an
attorney general opinion”). We suggest that you consult the General Land Office (“GLO”), which
is required to review all state agency real property inventories and to keep an inventory of all real
property owned by the state. See TEX. NAT. RES. CODE ANN. 5 3 1.154 (Vernon Supp. 2004-05)
(requiring the GLO asset management division to “keep inventory records of all real property owned
by the state”); see also id. § 3 1.OOl( 13) (defining “real property owned by the state” to mean “any
interest in real property in the possession of the state or a state agency, including real property held
in trust by a state agency”).

         Assuming that the state continues to ownRepublic Square, your second question is “whether
any specific agency of the State owns or holds title to said property on behalf of the State and
whether such agency is empowered to execute contracts to lease said property or otherwise manage
said property. Or, in the alternative, is the management of said property a matter still wholly within
the province of the Legislature?”       Request Letter, supra note 1, at 1. Your question correctly
assumes that the legislature may act to convey a state interest in Republic Square. It is well
established that the disposition of state-owned land is generally a matter over which the legislature
has exclusive control, but that the legislature may delegate this authority by statute. Thus, the power
of a state agency or official to convey state property may be exercised only under the legislature’s
statutory authorization. See Lorino v. Crawford Packing Co., 175 S.W.2d 410,414 (Tex. 1943);
Conley v. Daughters of the Republic, 156 SW. 197, 200 (Tex. 1913) (“[The Legislature] may
acquire property, real or personal, by conveyance, will, or otherwise, and hold or dispose ofthe same
or apply it to any purpose, public or private, as it sees tit. The power of the state in respect to its
property rights is vested in the Legislature[.]“). Moreover, the terms of any legislative authorization
for the conveyance of land must be strictly complied with. See State v. Easley, 404 S.W.2d 296,
298-300 (Tex. 1966); see also State ex rel. Dept. of Criminal Justice v. VitaPro Foods, Inc.,
8 S.W.3d 3 16,322 (Tex. 1999) (“In general, only persons authorized by the Constitution or a statute
canmake acontract binding on the State.“). Consistent with this well established principle, you wish
to know whether the state’s interest in a street abutting Republic Square may be conveyed only by
the legislature or whether some other state official or agency may do so. Thus, understanding that
the authority to convey state land is generally the legislature’s but is a power that the legislature may
delegate, we must determine whether the legislature has enacted a statute authorizing any other state
agency or official to convey a state interest in Republic Square.

      Under the Government Code, the Texas Building and Procurement Commission (the
“Commission”) “has charge and control of all public buildings, grounds, and property.” TEX. GOV’T
Ms. Cynthia L. Reed - Page 4                            (GA-0270)




CODE ANN. § 2165.001(a) (Vernon Supp. 2004-05). Section 2165.151 provides that “[a]11 public
grounds belonging to the state under the commission’s charge and control may be leased for
agricultural or commercial purposes.” Id. 5 2165.151 (Vernon 2000); see also id. 5 2165.153
(requiring the Commission to advertise lease proposals). That provision does not authorize the
Commission to lease state land for a federal courthouse. In addition, section 2166.052(b) of the
Government Code generally limits the Commission’s authority to “sell or otherwise dispose ofreal
property of the state,” but permits the Commission to do so in certain circumstances.             See id.
5 2166,052(b)(l)-(2)   (providing that the Commission may sell or otherwise dispose of state real
property with specific authority (i) “granted by the legislature if the legislature is in session” or (ii)
“granted jointly by the [Glovemor and the Legislative Budget Board if the legislature is not in
session”). However, because chapter 2166 of the Government Code “applies only to a building
construction project ofthe state,“see id. 5 2166.002, section 2166.052 does not appear to applyhere.
Thus, the Commission, although it may have some authority to manage the property, does not appear
to have the authority to convey an interest in state land in this situation.

         Nor does the Commissioner of the GLO (the “Commissioner”) appear to have independent
authority to convey a state interest in Republic Square, which is not public school land. See Tex.
Att’y Gen. Op. No. V-741 (1948) at 4 (concluding that Republic Square is not public school land).
See generally TEX. NAT. RES. CODE ANN. ch. 51, subchs. B-E (Vernon 2001 & Supp. 2004-05)
(providing for the sale and lease ofpublic school land); $51.291(a) (authorizing the Commissioner
to “execute grants of easements for rights-of-way across, through, and under unsold public school
land, the portion of the Gulf of Mexico within the jurisdiction of the state, the state-owned riverbeds
and beds of navigable streams in the public domain, and all islands, saltwater lakes, bays, inlets,
marshes, and reefs owned by the state within tidewater limits”).

         Chapter 3 1 of the Natural Resources Code requires the GLO asset management division, on
a periodic basis, to review the state agency real property inventories to identify unused or
substantially underused real property and prepare and provide to the Governor and other officials an
evaluation report. See id. $4 31.156-.157 (Vernon Supp. 2004-05). The Commissioner may
recommend to the’ Governor land transactions with respect to land identified as unused or
substantially underused. See id. $ 31.1571 ,4 Chapter 31 would authorize the conveyance of an
interest in Republic Square to the United States only if(i) the asset management division identified
the property as unused or substantially underused, and (ii) the Commissioner followed the chapter’s
detailed procedures, including formally recommending the transaction to the Governor.’

         The Governor has even more direct authority in this regard, however. Your query involves
the state’s authority to convey an interest in state land to the federal government. Chapter 2204 of


         Wnder chapter 31, the term “real estate transaction”means “a sale, lease, trade, exchange, girt, gcmt, OI other
conveyance of a real property interest.” TEX. NAT. RES. CODE ANN. 5 3 1.001(12) (Vernon Supp. 2004-05).

          sSee, e.g., id. $8 31.156 (real property review requirement), 31.157 (p rocedures for draA and final evaluation
reports, including review by the Commission), 3 1.1571 (requirements for reports to the Governor recommending real
property transactions).    The Commissioner may not conduct a recommended tiansaction if the Governor gives the
Commissioner witten notice disapproving the recommendation.        See id. $ 31.1571(f).
Ms. Cynthia L. Reed - Page 5                   (GA-0270)




the Government Code addresses the authority of the United States to acquire land in Texas. Section
2204.101 grants the legislature’s consent ‘to the purchase or acquisition by the United States,
including acquisition by condemnation, of land in this state.” TEX. GOV’T CODEANN. 3 2204.101
(Vernon 2000). Section 2204.102(a) expressly authorizes the Governor to sell state land to the
United States: “The governor may sell to the United States land owned by this state that the United
States desires to acquire for a purpose specified by Section 2204.101.” Id. 5 2204.102(a). The
purposes specified by section 2204.101 include a lighthouse,            military facility, dockyard,
customhouse, post office, or “other necessary public building,” id. 5 2204.lOl(b)( 1), or a waterway,
river, or harbor improvement, see id. 8 2204,101(b)(2). Section 2204.102(b) indicates that section
2204.102(a) authorizes sales for a purchase price, providing that “[o]n payment of the purchase
money for the land into the state treasury, the land commissioner, on the order of the governor, shall
issue a patent for that land to the United States in the same manner that other patents are issued.”
Id. 5 2204.102(b).

         In a 1940 opinion, this office construed the statutory predecessor to section 2204.102 to
authorize the Governor to grant an easement to the United States in land underlying navigable waters
that was not public school land to construct a channel to a naval base “for its real value to be
determined by the Governor.” Tex. Att’y Gen. Op. No. O-2627 (1940) at 3. In the event the
Governor and the United States’ agent could not agree upon a purchase price, the opinion noted that
the statutory predecessor to section 2204.101 authorized the federal government to acquire the
interest in land by instituting condemnation proceedings. See id. This opinion indicates that the sale
of an easement in land is sale of land for purposes of the statute. See id. at 1. By contrast, another
1940 attorney general opinion expressly concluded that the statutory predecessor to section2204.102
did not authorize the Governor to lease land to the United States. See Tex. Att’y Gen. Op. No.
O-2762 (1940) at 2-3.


         Based on this authority, we conclude that section 2204.102 authorizes the Governor to sell
state land or an easement in state land to the United States to construct a federal courthouse. See
TEX. GOV’T CODEANN. $3 2204.101@)(l) (V emon 2000) (consent to the United States to acquire
land for a necessary public building); 2204.102(a) (authorizing the Governor to sell state land to the
United States for a purpose specified by section 2204.101); Tex. Att’y Gen. Op. No. O-2627 (1940)
at 1 (concluding that the sale of an easement in land is a sale of land for purposes of the statutory
predecessor to section 2204.102). Thus, in answer to your question, although the legislature may
act to convey a state interest in Republic Square, a special legislative act is not necessary to convey
Republic Square or an easement in the property to the United States for this purpose; the legislature
has already delegated authority to enter into such a transaction to the Governor.

         Your letter suggests that the United States does not seek to own Republic Square in fee
simple but may wish to acquire an easement in an abutting street. Under section 2204.102, the
Governor may sell an easement in Republic Square, including an easement in an abutting street to
the street’s center, to the United States to construct a federal courthouse.

        You do not ask whether the City of Austin continues to have an interest in Republic Square
under the 1917 legislation or about the City of Austin’s authority to convey its interest in the land
or the abutting street, and we do not address whether or how that interest might be conveyed.
Ms. Cynthia L. Reed - Page 6                            (GA-0270)




          Finally, we note that the GSA’s ultimate goal is to vacate one ofthe streets abutting Republic
 Square. It may be necessary for the United States to acquire an interest in the street abutting
Republic Square from the state, the land’s owner, and the city, given its rights in the land under the
 1917 legislation, in order to develop and use the property. But these transactions would not be
 sufficient to vacate the street; the public’s easement in the street for street purposes must be
relinquished.     Texas law gives a home-rule municipality control over streets in the municipality,
including the authority to vacate, abandon, or close a street without the abutting landowners’
consent. See TEX. TRANSP.CODEANN. $5 311.001, ,007 (Vernon 1999). Compare id. 8 311.007,
with id. 5 3 11.008 (requiring a general-law municipality to vacate, abandon, or close a street only
after receiving a petition from the abutting landowners). Furthermore, article III, section 56(a)(7)
of the Texas Constitution prohibits the legislature from passing any local or special law “vacating
roads, town plats, streets or alleys.” TEX. CONST.art. III, 5 56(a)(7). Thus, the City of Austin, a
home-rule municipality,6 is the appropriate Texas authority to act to vacate the street. Moreover, in
exercising that authority, the City of Austin would act as the home-rule municipality with statutory
jurisdiction over the street rather than as a party with an interest in the abutting property.’




          ‘See Quick v City ofAustin, 7 S.W.3d 109, 122 (Tex. 1999) (“The City ofAustin is a home-rule city deriving
its power from article XI, section 5 of the Texas Constitution.“); see also http://www.ci.austin.~.us/law/ (“The City of
Austin was originally Chartered in 1909 under a Legislative Act which the City later amended to assume home rule
StatuS.“).



          ‘The GSA may also wish to obtain the agreement of the State of Texas and the City ofAustin not to contest the
street closure. See TEX. CIV. PRK. &REM. CODE ANN. 5 65.015 (Vernon 1997) (“An injunction may not be granted
to stay or prevent the governing body of an incorporated city from vacating, abandoning, OI closing a street OI alley
except on the suit of a person: (1) who is the owner or lessee of real property abutting the part of the street OI alley
vacated, abandoned, or closed; and (2) whose damages have neither been ascertained and paid in a condemnation suit
by the city nor released.“).
Ms. Cynthia L. Reed - Page 7                 (GA-0270)




                                       SUMMARY

                        The disposition of state-owned land is a matter over which
               the legislature has exclusive control, and the power of a state agency
               or official to convey state property may be exercised only under the
               legislature’s authorization. Assuming that the state continues to own
               Republic Square in the City of Austin, section 2204.102 of the
               Government Code authorizes the Governor to sell an easement in the
               property, including an easement in an abutting street to the street’s
               center, to the United States to construct a federal courthouse. As a
               result, although the legislature may act to convey a state interest in
               Republic Square, a legislative act is not necessary to convey an
               easement in Republic Square to the United States. However, the
               City of Austin, a home-rule municipality with authority to vacate,
               abandon, or close city streets, is the appropriate Texas authority to
               vacate a street abutting Republic Square.




                                                         eneral of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
