                                                                   R-46


              THE       Amro          NEYGENERAL
                                    TEXAS



                             Jan. 30, 1947


Hon. Arthur B. Knickerbocker             Opinion No, V-46
Adjutant General of Texas
Austin, Texas                            Re:   Appropriate   agency to
                                               accept title to site for
                                               Texas National Guard
                                               Armories.

Dear Sir:

           Reference   is made to your   letter   of January   2, 1947, con-
cerning   the following questions:

                  (a). “Is the Texas National Guard Armory
            Board the appropriate    State agency to accept
            the fee simple of property destined to be the
            site of the armory of the National Guard Unit
            stationed at Kerens ? sl

                 (b), “If the answer to ““(a)” above is in
            the negative, what agency of the State of Texas
            has the authority to accept title for the pur-
            poses described   above, *

           The facts recited in your letter above referred to indicate
that several public spirited citizens of the City of Kerens desire to
donate a certain tract of land described     therein as “20 acres of land
out of ,the M. Auky Survey, Navarro County, Texas, as sold by W.
E. Towle, et ux to E. H. Gray, G. M. Shatman and H. W. Hofber,
Trustees,   on November     6, 1946” to be used as a site for a National
Guard Armory     for the Unit stationed at Kerens.

          While it is recognized      by our courts that the State of Tex-
as has the right and power to acquire and use property,          in the ab-
sence of constitutional    restriction,    (Langdon v, State. Ct. of Cr.
App.. 117 S.W. (2d) 780; King v. Sheppard, 157 S. W. (2d) 682, writ
of error ref.), it is our opinion that Article     5890b. Vernon’s Anno-
tated Civil Statutes, is controlling     of your question,   This Act cre-
ated the National Guard Armory Board, having been passed by the
Forty-fourth   Legislature,    as Chapter 184. p0 462, Acts 1935; was
amended by the Forty-fifth       Legislature,   Chapter 366, Acts of 1937.
and later amended by Acts, 1939, 46th Legislature,         page 487, Sec-
tion 1. The provisions      of this article applicable to your question
No. 1 are quoted as follows:
Hon. Arthur   B. Knickerbocker     - Page   2                           v-46




              “Sec. 2. The Board hereby created shall be
         and it is hereby constituted a body politic and
         corporate.   It shall succeed to the ownership of
         all property of, and all lease and rental contracts
         entered into by. the Texas National Guard Ar-
         mory Board that was created by prior statutes
         and all of the obligations     contracted or assumed
         by the last mentioned Board with respect to any
         such property and contracts        shall be the obliga-
         tions of the Board created by this Act,         With this
         exception,  no obligation of said former Board
         shall be binding upon the Board hereby created.
         It shall be the duty of said Board to have charge
         of the acquisition,    construction,    rental, control,
         maintenance    and operation of all Texas National
         Guard Armories,       including stables,    garages,  rifle
         ranges, hangers and all other property and equip-
         ment necessary      or useful in connection therewith,
         and the, said Board shall possess        all powe~rs ne-
         cessary and convenient for the accomplishment             of
         such duty, including, but without being limited
         thereto, the following express powers:

               “(f) To acquire, by gift or by purchase, for
         use as building sites or for any other purposes
         deemed by said Board to be necessary      or desir-
         able in connection with or for use of units of the
         Texas National Guard, property of any and every
         description,   whether real. personal or mixed, in-
         cluding, but without limitation on the foregoing,
         leasehold estates in real property, and hold, main-
         tain, sublease,  convey and exchange such property,
         in whole or in part, and/or to pledge the rents, is-
         sues and profits thereof in whole or in part; also.
         to acquire, by gift or purchase,   or by construction
         of the same, furniture and equipment suitable for
         Armory purposes and to hold, maintain, sublease,
         convey and exchange such furniture and equipment,
         in whole or in ,part.

              “(g)    To construct buildings on any of its real
         property,     whether held in fee simple or other-
                      ”
         wme, e o    o

           As previously      commented upon in our opinion No. O-5695,
addressed      to you, this Act, as amended by the 45th Legislature   in
1937, was before the Supreme Court in the case of Texas National
Guard Armory Board v, McGraw, 126 S. W, (2d) 627, and the con-
stitutionality    and validity of same were upheld. In the last above
Hon. Arthur B. Knickerbocker    - Page 3                       V-46



cited case, the relator, Texas National Guard Armory Board, and
the respondent, McGraw, Attorney General of Texas, agreed to
certain pertinent facts relating to the case:

              “(i) That,the said buildings are to be con-
         structed on sites of land deemed adequate by
         the Board for ,the purpose, which sites either
         have already been, or wfl3 be prior to the begin-
         ning of constiuctien there*,   donated to or oth-
         erwise acquired by the Boardmerscoring
         supplied)

              *(j) That a considerable tiunbcr of such
         donations will be made by fndividnals or groups
         of individuals having no publio status, but some
         of such donations eithc~r have been or will be
         made to the Board by the municipal corpora-
         tions within whose territorial confines, or near
         whose territorial boundaries, such sites are la-
         cated; the conveyance of such sites to transfer
         to the Hoard a fee simple title in some instances,
         and m other mstances a leasehold for a term of
         ninety-nine years, which shall require no pay-
         ment on the part of the Board of rental or taxes, -
         the expressed consideration being the construction
         of buildings.” (Underscoring supplied)

          The Attorney General qtiestiontd the constitutionality of
the above Act on several grounds, none of which involved the ques-
tion or the right of the Board.to receive fee simple title to land by
donation or gift from individuals or’groups of individuals having
no public status.

         Mr. Justice Sharp, writing for the majority   of the Court,
used the following language:

              “The Board is authorized to require sites
         for Armory purposes by gift or purchases s . **

          On the question of the Board holding title to property, we
think the opinion of Justice Critx, concurring in part and dissent-
ing in part in the McGraw case. supra, is very appropriate, and
we quote as follows:

              “The Board acquires property in its name
         as such. The Board rents the property acquired
         by it to the State, by making rental contract with
         another State agency, the Adjutant General, On
         such lease contract the Board issues bonds,
Hon. Arthur B. Knickerbocker     - Page 4                       ,V-46



          secured by the rents to be paid by the State.
          When the bonds are all paid, the properties
          held by the Board become, as a matter of law,
          the property of the State. Under such a law,
          while the Board holds the legal title, such titlt
          holding is a pure fiction. 0 . .”

         The language as used in Section 2 (f) and Section 2 (g),
Article 5890b, quoted above, although changed slightly from the
language of the 1937 Act, which was before the Supreme Court in
the M&raw    case, supra,,contains no material change with re-
spect to acquiring of property by the Texas National Guard Ar-
mory Board!:-

         We conclude the Texas National Guard Armory      Board is
the appr6priate Statt Agency to receive fee simple title to the
proptrty cbstihkd to be the site of the Armory of the National
Guard Unit stationed at Kerens.

         In view of our affirmative answer to question (a), we
deem it unnecessary   to answer question (b).


                              SUMMARY

               The National Guard Armory      Board is the
          proper State Agency to accept on behalf of the
          State .t@e fee s3mple title to land donated to the
          State by private citizens to be used as an ar-
          mory lite by the Texas National Guard. Arti-
          cle 5890b, Sec. 2, subsections (f) and (g), Ver-
          non’s Annotated Civfl Statutes.

                                     Yours   very truly,

                                ATTORNEYGENERACOFTEXAS



                                BY
                                                    Charles E. Pratt
                                                           Assistant
CEP: bt: sl


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