     OFFICE   OF THE   ATTORNEY     GENERAL       OF TEXAS
                          AUSTIN




Xonorsble Clsrk C. l@t?n, EXeautlYe Seam
Texas Aatlonal Quard-Armory Board
ROUU 1603 - Seoond Xfttlonal Bank Build- I..
Rouston (zone 2), Texea
                                            <’              \

Dear Sir:




                                                          letter of
                                                        ot this depart-
                                      .   ‘kp quote   the body of your




                           e questiona     are the follovlng

           &Zhap&r 1. Title        8UIlitla’     p, 486,   G.L.
      06 Is& Art, 5790.
            nAu~orlzlng  the Adjutant General to execute
      In behalf of the atate a8 Lessee,   leasee and sub-
      leases vith Texas National Guard Armory Board and
      to renev such leases and sub-leases    fran time to
      tlm?.
                                                                         520




:lorable   Clark C. Wren, Executive       Seoretary,     Page 2


           "Chapter 2.     auprs~pp 487 et seq.          (The
    Arnrory  Board Aot)
             ‘Creating     the Anuory Board an s body {olltlo
    and corporate        end providing      that it shall      hare
    aharge of the acquisItIOn,            oon8tructlon,      rental,
    control,      maintenance and operation of all-
   .wl             Guard Anuorlcr~ etci ‘poseesr all pavers
   necessary and convenient for the aaoompll&nnent
    of such duty’ etc. (Sea 2); ‘enter Into aontraots
    h oonnectlon vlth any matter vlthln the objoots,
    purpores or dutleo of the Board’ (Sec. 2b) f *ao-
    qulre, by gift         or purchase, property of any end
    every deeoriptlon,          real, personal or mixed lnolud-
    lng leasehold        estster    (Sea 2f); lease and sub-
    lease its         roperty and pledge the revenues there-
    0S (Sea 2gP i borrow money and issue bonds and
    bther evidences of Indebtedness secured by a pledge
    of the revenuea of Its property etc. (Se0 2h) f exe-
    cute and deliver lesaes or sub-lessas                demising
    snd leasing        to the State of Texsr$ determIne the
    term of suoh leasea; aud providing .that the lav
    requiring       notice and aompetltlve        blds,ahall     not
          1s to leasing or sub-leasing           of auoh property.
              It I         iddthatthe        B rd halldt
              the &%&n&i            of renta?to      :e paIdebt<he
    State and, manifestly,            there Is left to the Board
     the right and duty of determining the amount of
    rental to be paid by the state vlthin the yardstlok
     6et out In the Statuto (Sec. 21).               Section 3 stlp-
    ulater that, vhen any of the property                 ovned by the
    Board shall be fully paid for, the property is to
    be oonveyed by the Board to the St&e.
                     .
              “8. 8. HO. 266 of the 48th Legislature,             ap-
     proved May 7, 1943 direotlng             all agenolas of the
     State to submit requesta for rental speoes to the
     State      Board of Control eta. and purporting            to em-
     power the Board of Control to determine vhether or
     not such space Is needed.             It should be noted thst
     this Act does not provide as to vhat la to happen
     If    its provisions      am not cornplied       vlth nor deny
     that paymenta be made on rental contraots                 made
     without ccunpll.anae with the Aot.
             .                                                                52   1.




Honorable   Clark C. Uren, Exeoutlve           Beoretary,        Page 3


           “9. B. No. 29 OS the 48th Legislature   ap-
     proved May 8, 19i: 3 suthorlcing the Amory Board
     and the Adjutant General to dispose of property
     that  Rational Ward Units left behind vher they
     entered Federal Servlae and appropriating   money
     for the purpose.
          “The Depertmental Appropriation   Aot of the
     48th Leglrslature 9. B. No. 332. (Item.4,  Supp.
     to House Journal, p. 234)
           ‘The Saote out of vhloh the questions pm-
     sented grov sre stated belov under conaeoutive
     numbers In conneotlon vlth the queatlona prs-
     pounded.
            “1.    Aoting under authority   of the then
     exlstlng    lew the Armory Board haa acquired R
     valuable property in Harris County consleting
     of land, runwsys and buildings       vorth in tho
     neighborhood OS Tvo Hundred Thousand Dollar6on
     vhIoh it eves some Thirty-odd       thousand Dollara
     which the Boerd is paying off out of rentalr re-
     ceived under o lease - Armory Board, lessor,          to
     State of Texas, lsmee - whioh lease expirea Au-
     gust 31, 1943 and is to be renewed for the tvo
     year (biennium) pe?lod begInnIng Se tember 1,
     1943.     This property manifestly    is1 P a under the
     provlalons     of the Armory Board Act (supra) vhloh,
     ln Seotlon 2 (I), provides that statute           provl-
     eions requiring     notloe and bids ahall no7 apply.
            “Thus oooum Question fl.    (a)  Doss 9. 8.
      266 (rupia) operste so as to require that request
     be msde by the Armory   Fioard to the Board of Oon-
     trol under that   Bill with respeot to the property
     mentioned in the above stated Saota, vhioh pro-
     perty Is generally knovn (18 ‘36th Divirian Avla-
     tlon Armory and A.l.rportlt   (b)  Absent any suoh
     request and any sotion by the Board of Control
      snd   the   Attorney   General   under    9.   8.   265,    sre   the
     Anaory Board ss Lessor and the stats of Toxaa,
     aotlng by the hand of the Adjutant Cenersl, aa
     lessee, legally competent to prooeed to exeoute
ionorable     Clark C. Wren, Exeautlve     Searetary,   Page 4


     a lease  aoverlng auoh property for the two esr
     period  beginning septeaber 1, 1943? and (c 3
     WI31 the Comptroller and the Btate Treasurer be
     authorlxed to Iseue vsrmnta ooverlng the rental
     pmvIded Sor in auah leare,    the rental6 being
     S&ml by the ~zmory Board vIthln the yardstlak
     adi OxIt in Seotlon 2 (1) OS the Ax?uo~~ Board Aa t.

         "2.  Aatlng under 3. B. 329 of the 48th Leg-
     Ialaturethe Amnory Board and the Adjutant Genersl
     are nov sagsgod   In the vork and, prior to Augua t
     31, 1943, vlll   have completed disposition      of Ka-
     tlonal Guard property and aanoellation        0s all rent-
     sl arrangements under vhI& auah property has been
     stored in fifty-oddplaoes throughout th, State
     ao thst no such storage apaoe vi11 be needed after
    .the last mentioned date, except 86 to aavalry        mita
     later slentioned. The vork aannot, however, be oas-
     pleted prior to raid date and this results        ln ths
     neaeaslty or aontinuing to utillre       the at0
     spaoe contracted     for by the Board et the beg %llxs
     or &he ourrent blenniun      in a Sew plaaea, until
     aaw date In mguat. 1943.         The existing   arrange-
     ments require 30 dsya notlae for aanoellatlon,
     othervise  they run to tha end of the ourrent bl-
     WlllIUlS. Thus It la true that, prior to tho er-
     rt3OtiYe d&e Of 8. B. 266, ths AmOrg BOSrd Vs6
      atittod   to the existing    storage arrengements
      that vill not tenalnste    until August 31at next.

              lThw occurs Question 42.       Hov do the provl-
     HIM       0r 9. B. 266 afrO0t these arrangemnta?        See
     your wo6uq      oplnIon   No. 5427.
              '3. At Fort Uorth and Houston the Armory
     Board hsa outstandIng ar@.!agVments    vlth the Fort
     Uolrth Ce~alry Club (Troops A a& B, 124tlLOsvnlry,
     Texas Rational Guard) and the Hous ton Oavalrg Olub
     (Headquarters Troop and Mediaal Detaabmaut, Texas
     National    Guard) under vhiah, subjeot to State appro-
     prIatIons    being available  for the purposer the Ar-
     mory Board is to pay rentala for the amorlea      oS
Honorable   Clark C. Wn,   DxeoutIv4   Ssaretary,   Pago 5


     auoh unit8 to the Clubs ($100.00 monthly to the
     Fort Yorth Club and $25.00monthly to the Eoue;ton
     Club) and the Club8 are to appl    thlr rental to
     pqw     off au ind4btedness  on tKe had and build-
     Ing8 involved vlth the understanding    that, vhsn
     8uah ind4btedness   Ir fully paid, the property till
     be aonveped to the Armory Board fr4e of debt.      Th4
     Emory Board does not propose to move the property
     of ruch oavalry unit8 from lto presont plaos of
     rtorage but 9ro90848 to continue to pay to suoh
     Clubs for rush 8tOrag4 the rat48 above 8tatsd dur-
     5-q th4 aan.Ing biennium.
           "The property loft behind by these cavalry
     unit8 18, for th4 moat part, built into the build-
     irig8 80 a8 to be a firture     sad to move It vould 're-
     8Ult la great damage. my proasdure undsr 5. B. 266
     vould P48Idt ia 1088 instead of gain to the State and
     all conooraod.      If 8. B. 266 IS to disturb thI0 sit-
     UatiOa, it VOtid 844Sl the better 4cOnOmy to abandon
     the stored    rO9erty and the equity that the Club8
     have in the I r properties.     In this conn4otlon  it Is
     suggested that, If 9. B. 266 ia to be applied,        the
     Armory Board could do no bra       than request the Board
     of Control to ark for bids on th4 apaoe tb8t 18 nov
     under contraot    to   the Board beoause ao othor space
     aould be u8ed.      Th.e tvo Clubs vould than be the only
     bidders and n0th.l.q vould hsv4 been aocompllrhed ex-
     oept th4 money rpoat for adVertI88IlWllt8.
            “Thluloccur8 Quentlon #3. IS th4 Armory Board
     usrranted   In aontlnuingthe present arrangeaaent with
     th48e  Olubr and th4 payment of such rental8 vlthout
     aotian by'the Board of Control and th4 Attorney
     Generrrl under s. B. 266~
           "4. The Armory Bobrd, aa it ua8 authoriced to
     do under It8 hat (la8t     art of Sootion 1), detomlned
     that It8 Beadquarters 8il  ould bc In a rtite    oompris-
     lag a board roan, its Exeoutlve Secr4tary~r offioe,
     it8 A88I8tant SeOlWt8 '8 offloe       and it8 rteaogra-
     ph8r'a ,OffIOO (4 LYJOIPI), known a4 1603 Second Katlon-
     al Bank BulldIn&   Hous'I 011, 'PtUes. Th4 r4ntal aon-
     traoted for and paid for a time vas $133.00per
Honorable   Clark C. Hren, Exeautlve        Searetory,   Page 6


     month plus    the coat of    light8.     9~414 veeka ago,
     beC8Me     it had &Ot employed au       A88iat8IIt SOOXW-
      tary, the Armory Board arranged with the bulld-
      lag mana@meat to reduce Its rant for the offloo
      to $100.00 per month, lfghts furnished by the
      buIldIn&      and the Armory Board gave up one of
      It8 I'OOmll. This arrangement OOntOIUpb3tOdthat,
      If the Amory Board Va8 authorlcsd          80 to do,      it
      would keep it8 reduced Office 89804 arid pay
      $100.00 per month rental therefor for at leart
      a year after Septeuber 1, 19.943. The Board after
      mov-      to these Headquarters spent considsrable
      money for 8tationery       nov on hand shovw        It8
      lBddP488   to be 1603 second Rational Bank BuIld-
      lag, Homton, Texaa.          If It rhould have to move
      WI a rerult of aotIon under S. B. 266 the sta-
    . tlonery vould have to be dI8aardsd.           l23.e Board
      believer     it8 rental arraII@ment I8 reasonable
      and, if It ha8 authorJ.ty to do 80, vi11 continue
      it.     any aotlon by the Board of Control In the
      prembea under 9. 8. 266 vould be In direat uon-
      flIot    with the pmVI8iOn8 Of the Board’s Aat
      vhIch author1848 the Amory Board, not th4 Board
  I   of Control,      to determIne it8 pl804 of Headquar-
       ter8.    I& this MUln4OtIOD It i8 pointed        Out that
      neither In the oaptlon of 8. B. 266 nor la tho
      body of the Aot, do48 the Aot purport to amend
       the Board'8 Aot.       (See  State Constitution     Art.
       III, Seotlons35 and 36 s It la believed              that
       ii the Leglrlature      had In tended that S. B. 266
      va8    to mend th4 Board'8Act, the L4gislatum
      vould have said 80 and beoauso It did not, the
       888U8lptiOIl. should be that the ti@slatIVe          in-
       tent V88 t0 14aVe the AlVaOryBoard's pOVer8 a8
       stated ia the Board's Aot.
             “%!hUE OOOUI’8 QUe8tiCIn #4. DO48 9. B. 266
      operate 80 a8 to require      that the Armory Board
      request of the Board of Control aotlon uader the
      Aat towardoeouring       the necessary   space for the
      Armory Board’8      Laos  of headquarters?    In con-
      neation. with tht 8 qU48tiOll    the An50~   Board
!

    Honorable        Clark C. Wren, Exeoutlvs                       Seoretary,               Page 7


            BtatOS       that     b     any      x%aueEt     that     it         tight       de
            on the Board of Control In the preti808,  it
            vould a8k for the space it I8 nov ocougylng.
                   'A COPY Of thi8 rWIOSt iOr yOUI? ODinlO&
            In bob8 84nt to th4 Comptroller,     th4 Btata
            froaruror,   the Board of Control and the Ad-
              utent Qeaeral ior their Information,   and It
            i.8 requsrted that YOU furnirh thlraavlth aopler,
            Of YOU' Mplyr "
                     It 18 apparent               that all
                                         of yOUr inquirler  hinge
    UpO& the pl-M                     U88tiOnthe   Of
                                                 pl’    VhhhM’
                                                   OViSiO&l Of
    Seaate Bill Ro. 286 (Ch89. 258, ACtS 1943, 48th Leg.) apply
    to the Texas Eations    Guard Amno    Board: that 14, vhether
    the Texas  Rational 6Usrd Amory    Board is a atate agency or
    department v1thl.n the contmplatian    of the Act.
                     ~&out            WotIng       at &m&h           from senate                  Bill   Ho. 266,
    Ye a’       sipgly          rtats     that     it   r4q~b?es           all       state        deparbneatr
    and sgfSICi48 t0 s4OUr4 th4 r4IItd 8pace the aood by BUt%il%t-
    tlng t&air requirements to ths Board of~Con 1 rol, vhlch vi11
    then detemine   if money is avaihtfb to pay rental8 for ruoh.
    rpace aad vhother the rpaoe i8 aeedod.    &ving roached an
    UfilWdiVe    Oozl41U8iOIIin 8aOh b8t.%XkC4, the Board Of Con-
    trol 18 rec@red    to advertire for bid8 and aaoept the lovelrt
    and best bid 8ubittedr
              I& our Opi&h& XOr 0-5427a  vhloh qUOt48 at 14&h
    from the 91~i8iOM   OS Senate Bill Ror 266, ve stated1
                  "Any nov leaas or rental aontraat entered
            ilLtO after pa88w8 Of 8eXMts Bill'flo.    266 XU8t
            be executed in the msnaer pre8orIbsd     by S4ctlone
            1 and 2 of the A&.     fh8 Legi818hw     bVw     DrO-
            vlded a node for the 8eouring of rental spaoe,
            the agencies snd departant      atfooted  are re-
            8triated   t0 that mode 8&d mI& OopfO~ t0 tho#e
            nrqtirerrasPt8.n
                     The Texas XatiOnal @aard @mory Board Va8 Or&bd-
    4 orested         by the 44th Legielature, Act8 1935, General LEVI,
ionorable     Clark C. Won,      Executive    Sscretary,    Pago 8


b-9.    18tr, page 462, which vaseamended
                                       -__ by the 45th Legirla-
tUl'4, Act8 1937 R4g. Se881, Ohap. 3bb, and later agala
maded      by the 1!6th LegI8lature, hot8 1939, page 487. Thlr
legI8latIon,    a8 amended, has been codified  a8 Article 5;89%
Yernoa18 Annotated Clvll Statuteo.
           You have correctly     stated in your letter   that the
Peraa Rational Guard Armory Board, vhloh will be hereInafter
referred  to 8tiply a8 the AmDory Board, was areated and aon-
stltuted  a body politic    and a corporation.    844 Art1014
589Ob, Sec. 1.    The  duties   and  funotions of the Armory Board
am set out la Sootlana 2, 3 and 4 of Article         589Ob. Sea-
tion 2 of that Article     reads in part e8 follovs:
                 "It shall b4 the duty of aaid Board to
         have oharge of the aoquIsltIon,             constructEn,
       - rental,     control,     maintenance and oparstlon        of
         -X88          Eational Guard Amori48,           inc1udi.n~
          ritables, garagea, rifl4        ranfZ48, hanger8 and
          all other property and equ0Jnsent nooea8ary              or
         UDO$-Ulin COlUiOCtiOntherewith,             and th4 s&-
         Board shall po8848s all povora necessary                and
          oonvetient     for the 8COOEIrIli8hm~t Of 8uOLldZtyr
         bcluding,       but vlthout be=        llrltod     thereto,
         %he folloving        expreos   pover8t1" (Rnpha818 added)
               Among the express      power8 oonferred     upon the Board
under this 444tiOn are the iOllOVing1




                                       i
Honorable   Clark C. Wren, Exocutlve   Sscretary,   Psge 9


          A8 pointed out in Toxar rational  Guard Armory
Board v. McCrav, 132 Tex. 613, 126 S.W. (26) 627, 632, by
Suetloe sharp, vho vrote the opinion:
            "The Clear pU~O84 Of this Aot i8 to give
     8tability   to the m.iPilitary arm of the State.    It
     provides that    the pr8onr    acting ae m4Uib0r8 of
     the 4Xi8tbg    Texas National Guard Armory Board
     8hsll   compose the members Of the Board under this
     Act.    This Aat provides that those who constitute
     this   Board shall be the three rank-       member8 of
     the 'fOXa lPatioaa1 Guard, vhlch ineuro        axper-
     ienced men on the Board to guldo and direct        tho
     affair8   of the Texas Nations1 Guusrd. The meabero
     of the Board serve without pay, and it la to then
     a duty of tru8t end honor.        The dominant objeat
     Of thi8 DCU't Of the Act 18 t0 h4VS CCUltirmity Of
     service on the Board of men of military       training,
     and who have been seleoted      for their expsrlenco
     and merit, in order that the efficiency       of the
     Board may not be Impaired."
              Slnoe the above ea.84 was dooFd4d tvo odditlonal
members have boon added to th.4 Armory Board by the 46th
L4gIrlatur4.       The tvo additional  members ar4 the aenlor
active   officer    of the National Guard of Texas and the
realor   cavalry officer    of said Guard.   see Acts 1939, 46th
Los.,  p. 487, Sea. 1. It i8 thU8 apparent 'that the u&8-
letUP ha8 sought to 8t8ff the AX%lOl'yBoard with the OUt-
rtaadlag mllltary      men of the State.
          !l!ho pavers and authorities  vhich ve have quoted
frcm the statute are but a 8mall portioa.of      the man 4Xpr488
power8 conferi‘ed UpOn the Armory Board b Article      5 90b.
Those are the powers and authorities    vi t3; vhloh v4 ti
                                                        ar4 prl-
m@ily cO&O4ra4d here, but We She11 h&V0 OOCd.On at a later
gi”t  in this Opbb&     t0 refer  t0 other pOWOr pO884slrOd by
   .
          The vital   function of tha Armory Board, end the
obvious pUrpoS8 of the LegIs1ature   l.n creating it, 18 to pro-
vide a m4ar.18of socurlng amorles   to houso the State milltla
aad it8 equtpment.    In thi8 OO&neCtioa x4, direct your atton-
tlon to other langus,ge in the 0884 of Texas National Guard
Honorable     Clark C. Wren, Exeoutive       Seoretary,   P8ge 10


Armory Board V. MoCrav,       supra,      vhloh appeara at page 681
~1~IvsSouthvestern        Reporter     olted,  and vhioh reads 8s
        :
            W   vould be dirri0Ult for the mind t0
      conceive hov 8x1 army c8n be Faised, equip ad,
      and disolpllned,  8s oomnwnded by Section &6
      0r utiOi6   16 or the (T~XUS c0mitUtion,
      VithOUt 8ISlOri8S to house t h, amy snd its
      eqtipment . The pover to provide for the 8my
      iS left t0 the VisdOIB Or the ~gi6lUtUXt, sub-
      jeOt    Only   t0 the linclt8tiOXl that   SUOh   18VS   8s
      ah811 be passed by the Legislature,    shall not
      be ‘Incompatible with the Constitution    and
      Lavs    or the united   Statea.’      The u73i~18+2~3
      has seen f%l to enaot t&f13 lav for the purpose
      Or proouring s,ites snd erecting   armories, and
      ha&f’urnIshed   the method for flnanclng   the
           , The visdcm or the expedlenoy of’ the lav
      is left exoluslvely   to the Legislature   to de-
      termine, and courts al-6 conoernod only vlth
      it5    Validity,"

            Article   589Ob, to us, evidences the oonsidered
purpore  or the Texas ugiSl8tUre         to place absolute 8nd un-
lbited   discretion    for the aoo~plfslnnent      or the objeots
therein enumersted in a board ccmpoaed Of men with military
buokground.     Tiw pavers vhloh have there been oonferred up-
on the Armory Board by the Legislature         are, in every in-
8t8no8, 8 reared in the broadest poeslble           terms, thus fIu-
ther reve 3 w      the tma&takablp    intent of the Legislature
 that the entire dlsoretlon     In matters oonoomed vith secur-
w 8muaria8      to how* State milit8z-y eitabllahments        rest in
 the Armory Boa@.      !l!boughout this srtlale,     the Legialsture
bar vith rrorupulous oare stated that nothing oxpressedthere-
 in is to be oonstrued    as a 1LDitation upon tha pover snd au-
 thoritr vhich the ~rm0a-y Board may need for the aoooniglish-
8b6d 0r it8 purp08e8.      A delegation    of authority more sweep-
ing in its scope, to the end that stability          be given to the
adlitury  arm of the Stete, oannot be lmaglned.
             yundpul or the purpose ror vhioh the Armory Board
V8S   Ore8ted and of the plenary powers for aeocanplishlng this
Honorable   Clark C. Uren, Executive     Secretary,   Page 11


purpose vhioh have been conferred upon It, and mindful or
the IEilitUrJr oharaoter of the Armory Board and of its
undeptakfng, we do not believe       that the Legislature  would
Vest   any portion of that 8uthorlty      in another board without
using   language clearly  expressing     tbat intention.  Nor do we
believe    that the 48th Leglalature    by enACting Senate Blll
No. 266 (Chapter 289, Acts 1943, p8ge 385) intended to take
ftrom the Armory Board any of the brond powers and discre-
tion vhloh had been theretofore       conferred upon It.

            Article   789Ob placea in the Armory Board the ex-
Qreas duty to acquire leasehold      estatea and grants to It
 all powers neoeaaary and convenient for the accomplishment
of euoh duty.”      If we hold th8t Senate Bill No. 266 applies
to the Armory Board, we must necessarily      hold that the
Legislature   intanded.to   take from the Armory Board these
broad powers and discretions.
             In Senate Bill No. 266, the 48th Legislature         has
918Ced absolute discretion      over the need by any agency or
department of the rental space whlchTproposea             to lease
or rent in the Board of Control.         Some possible   diatinotlon
may be made on the basis that Senate Bill No. 266 refers to
8nd applies to rental space, vhile Article         789Ob applies to
leasehold    estates.    However, ve will not quarrel with mere
temo1ogy.         A8 we have seen, Artlole    58gOb places abaolute
dlacretion    In the Armory Board over the necessity        or desir-
ability    0r such leasehold   estate a8 it de6iroS     to acquire.
Llkevise    under Article   T&Ob selection    d sltea is left to
the dlsoretlon     of the Armory Board ua a neceaaury corollary
of the grant of “all      power8 necessary and convenient to the
8coompllshment” 0r 14s duties.         Under Senete Bill No. 266,
selection    would be made to depend, ln’part      at least, upon
the amount bid and other factors        Vhfoh may or may not take
into oonsfderatlon     the desirability    Of the site as 8 till-
tary installation.
          Again quoting rrom the oplnlon or Justice          Sharp
in Texaa National Armory Board v. MoCraw, supra:
            “It la well to keep in mind that we are
      dealing with statutes and provlslons    of the
      Conatltution  relating to mllltary   matters and
lonorable   Clark C. Wren, Executive      Seorotary,    Page 12


      the power of the State to create an army and
      provide for ite malntenanoe . . . . This Act
      1s a part of the program adopted by the Legls-
      lature OS Texan relating  to the organization
      and maintenance of the Texas Rational Guard,”
           We do not believe    that In passing Senate Bill Ho.
266, the 48th Legislature    intended to enoroaoh upon the
broad dlaoretion  vhloh it has placed in the military     ana
of the State end entrust those matters to men vithout mill-
targ bpokground.   A8 ve have seen, the Legislature     in Artiole
789Ob has been oareSu1 to prescribe     that only men wlth mill-
tary baokground eerve on the Armory Board.      The primary
funotlon of the Armory Board la to seoure and malntaln ar-
aorles and the Armory Board Act places the burden upon the
,?gnory Board to do vhatever is neoessary to carry out its
objeots and purpose,s.
             While Senate Bill Ho. 266, according           to its ex-
 press language, applies to all State agenoles,             we are of the
 r~pinion that properly oonstrued,         It does not apply, and vas
 not intended by the Legislature          to apply, to governmental
 oorporatlons,    such as the Arrmory Board, to vhloh the Legls-
 lature has granted broad and extensive powers for the aaocan-
 plirhment OS a partiaular       and segregated purpolre of the State.
J@&.ave already slluded to the fact that the Armory Board,
 a8 set up by the Legislature,         Is oonstituted     a body politic
 &fCZoorporation,       which, vhlle it performs funotlons bene-
 Sl~iZl to the 8tat8,       is not in a true sene.e a component and
 interdependent     part OS the admlnlstratlve        lnaohinery OS the
 state government.
  ------- -
-s.,;
              In Its broadest oonnotation,        the expression    “atate
 ageaoy” may and does enoompass all organizations             and bodies
 serving any of +he objeots or purposes OS the State govern-
 ment. Under thin deffnitlon          all organiztitlons    whiah are
 oreated by the State to carry out any one of the many State
 pwposea,     as distinguIshed     from those whioh serve strl.$~
 private enterprises,       are 018ased 88 stste agencies.
 Lindsey-Btrathmoe       Irr. Diet.,     D, C. Cal., 21 F. Supp. 129.
  Thus a school dlstrlat,      a port oommiaalon, a oity board of
  eleatlons,   an drrigation    distriot     and a bridge distrlot
                                                                    53 1




Honorable   Clark C. Wren, Rxecutlve   Sccretnrg,   page 13


havo all been held to be state    aganalos.    See 40 Words &
Phrases (Perm. Rd.) 19.
           And under this broad definition,  even lncor-
porated cltlea  have been called State nyencles by the
oourts of Texas.   As pointed out ln Terss National &ard
Armory Board V. McGraw, supra:
            “In its governmental capacity a city Is
     a political    subdivision  of the State, and ln
     many lnstanaes Is oonsldered as an agent of
     the State; and the State may use such agent In
     the discharge    of its duties.   Yett v. Cook,
     115 Tex. 205, 281 S.W. 837; City of Uvalde v,
     Uvalde Elec. k Ice Co., Tax. Comm. ~pp., 250
     S.W. 40; City of Trenton v. Neu Jersey, 262
   . U.S. 182 43 s. ct. 534, 67 L. Ed. 937, 29
     A.L.R. 14 1; 43 C.J., Sec. 5, p. 79, and sec.
     179, p. 1i 2 and cases cited in footnotosj    Cor-
     poration of San Fell e De Austin v. State, 111
     Tex. 108, 229 9.W. i3i5; city of Armlsss    Pass V.
     Keeling,    112 Tex. 559, 247 S.W. 818; 43 C.J.,
     880. 5, p. 70.”
           We doubt that anyone would seriously       contend
that a oity is a State department or that anyone would
seriously  urge that the provisions    of Senate Bill No.
66 are intended to apply to cities.        While cities    are,
in the broad sense, arms of the State, they are neverthe-
less sovereign   ln themselves vlthln    the llmltatlons    lm-
posed by the Constitution    and statute8 of the State.
They are not like those agencies or departments of the
state government which perform limited functions as a cog
ln the sdmlnlstratlve   machinery of state government and
vhlch have no sovereignty    of’ their own.
          Yet, If we were seeking an annlogy, ve would
oertaldly  conclude that the Amory     Borrrd is more nearly
Ilke a municipal corporation    or city than a State depart-
mwlt . To all Intents and purposes,     the Armory Board is a
governmental corporation,   with povers and authorities      com-
mensurate with those possessed by private corporations        or
Ionorable   Clark C. Wren, Executive   Secretary,   page 14


3unlalp81 corporations.     It has been created by the Legis-
lature to asrve oertain,    llmlted interests  OS the State,
wselp,   the eaquisitlon   of armorlea for the State’r armed
forces.
            Artiale 589Ob giver, the Azao       Board almost un-
Limited    over8 to effectuate     and aaoomp
                                            7 lsh Its purposes,
9ec tlon i of that article     provides  thatr   “In the exeou-
tion and edmlnistratlon     OS objeats and purposes herein set
forth,   the (Armory)  Board shall have pover to adopt means
and methods reasonably calculated       to aooompllsh suoh ob-
jects and purposes and this Aat rho11 be oonstrued llberel-
ly in order to effectuate      such objects   and purposes,”
           Under this statute,  it possesses numerous povers
vhlch are not ordinsrlly,   and, in Sect, most of vhlch are
nevq,   grwted  to ordinary state departments,     For exsmple,
to n8me a fev of the powers grsnted,    the Armory Board has
authority  to sue or be sued in its ovn name and to enter
into contracts  in Its oyll nsmej to have and use a oorporate
seal1 to 0.x the number of and compensation of its employees;
to adopt, change and amend by-lava,    rules snd regulations
for the conduot of its affairs;    to oonstruct buildings    and
to buy, ovn, sell or exohange property 3.31Its ovn nsmeJ to
borrov money and isrue and sell bonds for the purpose OS ao-
Quirlng building sites and build-8      snd to oontraot vlth
the State as a separate entity.
           For all of the reasons rtated, ve have oonaluded
that Seaate Bill Ro. 266 doe8 not Ppply to the Texas Bstlonal
Guard Armory Board and you are 80 respeotSully  advised,
          What we have stated aPaVers all of the questions
propounded by you vlth the sxoeption of your questions l(b)
and l(o), whloh we will nov oonslder.
           In the negotiation of all leases and sublease8 be-
tveen the Texas Ration81 Quard Msory Board and the State OS
Texas the Adjutant Qeneral, under the provlslons   of subsea-
tlon (i) of Seotlon 2 of Artlale  589Ob, Is authorlted   and
designated to sot for the State,    We quote this subsection
3n full,  as follows;
                            --



            .




Honorable       Clark C. Wren, Executive   Seoretary,   Page 15


            “To execute and deliver     leases,   or aub-
     leases in the aase of buildings        looated upon
     leasehold   estates acquired by the Board, de-
     mlslng and leasing to the Stats of Texas
     through the Adjutant General, uho shall exe-
     cute the same for said State, for such lavSu1
     term es may be determined by the Board, any
     build-     or bulldings    and the equipment there-
     In and the site or sites therefor,         to be used
     for Armory and other purposes and to renew
     such leases or sub-leases      from time to time;
     provided,   however, that if at any time the
     State OS Texas shall Sail or refuse to pay
     the rental reserved In any suoh lease or sub-
     lease,   or shall fell or refuse to lease or
     sub-lease   any suoh building     and site,   or to
     renev any existing     lease or sub-lease     thereon
     et the rental provided to be paid, then the
     Board shall have the power to lease or sub-
     lease such buildlug and equipment and the
     site therefor    to any person or entity and
     won such terms as the Board may determine.
     The law wqtirlng     notloe and ao&atltlve       bids


     Board ahhi determine) to be charged the State
     OS Texas for the use of euoh property leased
     or sub-leased    to It by the Board shall be
     suffiolent    to provide for the operation and
     maintenance OS the property so leased or sub-
     lassed,    to pay the interest  on the bonds, de-
     bentures or other evidences     of indebtedness,
     IS any; issued for the purpose of acquiring,
     aonstructing    or equipping such property,      to
     provide for the retirement     of such bonds, de-
     bentures or other evidenaes OS indebtedness,
     If any, and the payLS8nt of the expenses inol-
     dent to the lesuanoe thereof,     es vell es the
     necessary and proper expenses of the Board
     not otherwise provided for.”       (blnyhaels added)
Honorable    Clark C. Wren, Wecutlve     Seorotary,   Page 16


           It vi11 be observed that this subsection speclf-
Ioally states (see underlined sentence above) that the ‘lav
requiring notloe and oompetltive  bids shall not apply’ to
leases OF sub-leases  betveen the Texas National Guard Arc
mory Board and the State of Texas.
             Senate Bill No. 266 on the other hand provides
that leases to all departments and agencies of the State
shall be made on aompetitive       bids by the Board of Control,
Ho provision    vas made in this bill,     however, for either
speclfid   or general   repeal of oonfllcting     legislation.     If
the underlIned provision       of submotion   (I) bas been repealed
by Senate Bill     Bo, 266, such repeal must have been accom-
plished by Implication      since no actual repeal,      either speclf-
IO or general,     is oontained In the Bill as passed by the Leg-
islature.     Such repeals are not favored by the aourts and
vi-l1 not be Invoked unless .the old and the neu law are so
antagonistic    and repugnant that both oannot stand, the pre-
sumption being that the Legislature        ln enaatIng the new law
Intended for the old provision        to remain in sffeat,      39 Tex.
Jur. 140, md casea oited in the footnotes.
           “If by any reasonable oonstructlon       two
     acts or statutory     provisions  can be reconciled
     and so construed that both may stand, one will
     not be held to repeal the other.        Espeolallg
     vhere the older law Is particular       and Is ex-
     pressed In negative terms, and th later stat-
                enoral, a oonstruotion   viz1 be sought
     late
     vhiohIS harmon
              +       zes them and leaves both in con-
     current operation.”       39 Tex. Jur. 141-2, and
     oases cited In the footnotes.      (IS&hasis added)
           The ;nderlIned    provision  ln subsection   (I) of Sec-
tion 2 of Article    58gOb Is expressed in negative     tenss.    It
applies to a partioular     type of lease--those    for armories-
and It Is restrloted     to leases betvoen the Armory Board and
the Adjutant General, acting as agent for the State.
              The new law--Senate    Bill No. 266--b general.   It
applies     to all leases by all    departments and agencies of the
State.
Honorable   Clark C. Uren, Exeautlve   Seorotarg,       Page 17


            Therefore,  applying the quoted rule of statutory
construotlon,    both provisions should be allowed to stand.
Subsection    (I) of Seation 2 of Artiole  58gOb vi11 be con-
sidered an exoeption to the general provisions      contained
In senate ~111 No. 266. 39 Tex. Jim. 149-50; Townsend v.
Terre&     118 Tex. 463, 16 9.W. (26) 1063~ Cole v. State,
lo6 Tex. 472, 170 S.W. 1036, dlsmlsslng error 163 S.W.
353; Ellis v. Batts, 26 Tex. 703.
            Your iuqulries  are therefore   respectfully     an-
svered as follovs:     1. a   No. (b)     Yes.   (a)    Yes.
2. Senate Bill No. 26bh as no affect on the arrangements
you outline.    3. Yes. 4. No.
            Trusting that we hrve fully answered your inquiry
 and that you will call upon us If we can be of further serv-
 Ice, ve are
Ap’TF:.vT-Dm 3, 1943

                                            Yours very truly
                                       ATTOIUEYGENERAL
                                                     OF T&XAS
                                                   ~-----bd7
                                       BY   _ ~/   C.? *.J
                                                    Peter ManIsoaloo
                                                               Assistant




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