                       THE       ATTOIQMEY                     GENERAL
                                       0eTEx~s
                                   Arrslw.T~As~              7Q7ll
  JOHN     Ia. ElLL
A-ZCNEY      as-Ax.
                                              August     30,   1973



          The Honorable J. W. Edgar                            Opinion No.   H-   93
          Commissioner    of Education
          Texas Education Agency                               Re:    May the El Campo school
          201 East Eleventh Street                                    district pursuant to an
          Austin,  Texas 78701                                        agreement    with the City
                                                                      of El Campo, transfer
                                                                      title to school-owned
                                                                      surplus ,land, by nego-
                                                                      tiation for the considtr-
                                                                      ation of improvements
                                                                      and usage -- without the
                                                                      necessity   of a cash con-
                                                                      ~sideration offered at a
          Dear   Dr.   Edgar:                                         public bidding 7

                   Your ,request for an opinion of this office asks whether the El Campo
           School District may ~transfer title to 30 acres of surplus land to the City of
           El Campo without the necessity      of competitive  bids and without cash consi-
           deration.    You state that the School District desires to convey the land in
           exchange for the City’s promise      to make $60,000    in recreational   improve-
          ,ments to the land which ,students of the District may use at all times.         The
           City is anxious to obtain the land and develop it as a part of its master
           park system in El Campo.        You state that the agreement,     if within the
           district’s  authority,  will be of benefit to the school and the community.

                 Trustees   of the El Campo Independent School District are generally
          vested with wide powers of management       and control of real and personal
          property of the district.    Section 23.26 Texas Education Code. Subsection
          (c) of that section states that:

                                “All rights and title to the school property of
                         the district,  whether real or personal,   shall be vested
                         in the trustees and their succe.ssors   in office.”




                                                  p.   428
The Honorable      J. W.   Edgar,   page 2 (H-93)




       Of course,  as local public corporations,  independent school districts
through their boards of trustees may only exercise      powers expressly      or
impliedly granted to them by the Legislature.      Love v. City of Dallas,      40
S. W. 2d 20 (Tex. 1931); Foster v. City of Waco,      255 S. W. 1104 (Tex.1923).
No school district may make a contract that is not expressly        authorized
by law or necessarily   implied from powers expressly      granted.   McCorkel
v. District  Trustees,  121 S. W. Zd 1048 (Tex. Civ. App.,   Eastland,    1938, no
writ).

       Among the powers the Legislature        has expressly    granted to indepen-
dent school districts   are the exclusive    management    and control of the schools
of the district [$23.26(b),     Texas Education Code], including the power to
sell any~property of the district.     Sections 23.29,   23.30,    Texas Education
Code.   The contractual     rights to be obtained here constitute “more conven-
ient and more desirable      school property” within the meaning of $23. 30(c),
in our opinion.

         The board of trustees may also contract to improve or acquire gym-~
nasia,     stadia, or other recreational        facilities    ($20.21.   Texas,Education
Code),     or may, by agreement         establish,    provide,     maintain,   construct and
operate jointly with another governmental               unit. . . playgrounds,      recreation
centers,      athletic fields,   swimming pools, and other parks and recreational
facilities    located on property now owned or subsequently                acquired by either
of the governmental        units.   Article ,6081t, V. T. C.S.         The courts will not
interfere     with the exercise     of the board’s authority unless a clear abuse of
power and discretion        is made to appear.          Kissick v. Garland Independent
School District,       330 S. W. 2d 708 (Tex. Civ.App.,            Dallas,   1959, err. ref.).

        In our ~opinion, the El Campo Independent School District may enter
into an agreement     with the City of El Campo whereby the District obtains
the right to require the construction       of and to use recreational    facilities  to
be constructed    by the city to the district’s    specifications,  in consideration
of the district’s  transferring    title to the land to the city for use as a public
park.    Compare Attorney General Opinion M-1195 (1972).            Section 20.50,
Texas Education Code, would limit the contract period to 75 years,                but
Article   6081t author&es    similar contracts between governmental          units for
indefinite periods of time.      Since the Education Code states the board of
trustees of an independent school district shall have the powers and duties




                                          p.   429
The Honorable      J. W.   Edgar,   page 3    (H-93)




described in the Code, in addition to any other powers and duties         granted
or imposed by law(s23.    25), the contract may be for an indefinite      period
pursuant to the provisions    of Article 6081t.

      No violation of Article   3 5 52 of the Constitution is involved because
there is a quid pro quo.    Neither governmental     unit is making a grant or
a loan of its credit to the other.   See San Antonio River Authority v.
Shepperd,    299 S. W. Zd 920 (Tex. 1957).

       You also ask if the school district must accept competitive  bids
on the sale of the land or the contract for the construction and use of recrea-
tional facilities to be used by the district.

                    “All contracts  proposed to be made by any
             Texas public school board for the construction,
             maintenance,    repair or renovation of any building
             . . . shall be submitted to competitive   bidding
             when said contracts involve $1,000 or more. ”
             Section 21.901(b) Texas Education Code.

      Similarly,     the Legislature   has generally   required   that:

                     “No land owned by a political subdivision of
             the State of Texas may be sold or exchanged for
             other land without first publishing in a newspaper
             of general circulationin       the county where the land
             is located i . . a notice that the land is to be
             offered for sale or exchange to the general public,
             its description,    its location and the procedures
             under which sealed bids to purchase the land or
             offers to trade for the land may be submitted. ”
             Article   5421c-12.   V. T. C.S.,   as amended in H.B.
             40, 63rd Leg.,      1973.

       Articles 54219 and 1019, V. T. C. S., requiri special procedures
before land designated or utilized as a public park, recreation   area, etc.,
may be disposed of by a political subdivision of the state, and are not
applicable to the situation you present since the “surplus land” you wish




                                       p.    430
The Honorable    J. W.   Edgar,   page 4     (H-93)




to convey has not (to our knowledge) been designated         for any of the special
purposes to which those articles  apply.

         In our opinion, state law does not require competitive        bidding in
your situation.      Although the transaction   may fairly be characterized      as a
“sale” of land or as a contract exceeding $1,000 for the construction           of
facilities    used by the District,  it is most reasonably    characterized   as an
agreement       reached between two political subdivisions,      each having the
power of eminent domain and condemnation,           respecting    the paramount
public use of land owned by one of them.         The contract for the construction
of facilities    by the city for the district’s use is only incidental to and con-
sideration for the transfer of land to the city for the paramount public
purpose of providing adequate park facilities        to.city residents.

      The Legislature has expressly     authorized     home rule cities to con-
demn both private and ,public property.     Article    1175(15), V. T. C. S., grants
to home rule cities:

              “power ,to appropriate   private property for     public
              purposes whenever the governing authorities         deem
            ,it necessary.    . . . The power of eminent        domain
             hereby conferred     shall include the right.  .    . to
              condemn public property for such purposes.         ”
              (emphasis added)

       Our courts have held that political   subdivisions having the power of
eminent domain and condemnation       may avoid those expensive proceedings
when they agree.among    themselves    as to the paramount public use of land
owned by one of them.    Kingsville   Independent School Dist. v. Crenshaw.
164 S. W. 2d 49 (Tex. Civ. App.,    San Antonio,  1942, err. ref.) ; El Paso
County v. City of El Paso,   357 S. W. 2d 783 (Tex. Civ.App.,       El Paso, 1962,
no writ): City of Tyler v. Smith County, 246 S. W. 2d 601, (Tex. 1952).

        The court in El Paso County v. City of El Paso,         supra.,  noting that
Articles   1577 and 6078a set out notice and competitive        bidding procedures
for the sale of county land, said:




                                      p.   431
The Honorable   J. W.   Edgar,    page 5     (H-93)




                   “We think the statutes herein referred to do
            apply wherever a political subdivision,    subject to
            such statutes,  desires  to dispose of any of its public
            land to an individual or private agency,   but not where
            such political subdivision with power of eminent
            domain and condemnation     chooses to deal with its
            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.    . . .” (357 S. W. 2d at 787)

       We believe the statutes requiring competitive   bidding procedures
when land is sold by a political subdivision  of the state do not apply to
a situation in which one political subdivision is negotiating with another
about the paramount public use of public land in an effort to avoid con-
demnation proceedirigs.

      It is therefore  our opinion that the agreement  you wish to enter
into with the City of El Campo is within the permissible   contractual
powers of the school district and t-nay be completed without the necessity
of competitive   bids and without cash consideration.

                                 SUMMARY

                    An independent school district is vested with
            the power of contracting   with a city for construction
            and use of recreational  facilities to be used by the
            district and in exchange therefor may convey title
            to surplus school land to the city if both agree that
            the paramount public use of the land would be its
            use as a public park for the benefit of all the residents.

                                    -Very         truly yours,




                                       Attorney       General    of Texas




                                      p.    432
The Honorable   J. W.   Edgar,   page 6    (H-93)




Opinion Committee




                                      p.   433
