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                                    The Attorney           General       of Texas
                                                        March 10, 1983
    JIM MAlTOX
    Attorney General

                                   Mr. Leonard IL.0. Sueerman             Opinion No. JM-8
    Supreme Court Building         President
    P. 0. BOX 1254B                Texes Southern University              Re:   Whether Texas Southern
    Austin. TX.‘.78711- 2546       Eouston. Texas   77004                 University must pay a claim
    51214752501
                                                                          under the Texas Relocation
    Telex 9wa7c1367
    Telecopier   512l4750286
                                                                          Assistance Program established
                                                                          by article 3266b. V.T.C.S.

    1607 Main Sl.. Suite luxl      Dear Mr. Speerman:
    Dallas. TX. 75201”t704
    214/74Z.B944
                                        In your recent request for an opinion you asked the following
                                   questions:
    4824 Alberta Ave.. Suite 180
    El Paso. TX. 79905.2793                    1. Whether the Texas Relocation Assistance
    Fw33.3484
                                            Program, article 3266b, V.T;C.S.. applies to
                                            institutions of higher education.
    1220 Dallas Ave.. Suite 202
    Housto”. TX. 770026998                      2a. Whether Texes Southern University is
    7 1365w666
                                             obligated to reimburse the owners of property it
                                             acquires for the cost of closing and moving
    IN6 Broadway. Suite 312                  expenses under article 3266b. V.T.C.S.
    Lubbock. TX. 79401.3479
    8081747.5238                                b. Whether payment of one claim would require
                                             payment to all potential claimants.
    4309 N. Tent!!. Suite B
    McAllen. TX. 78501.1595                     3. Whether such payments are subject to any
    512i662.4547                             limitation on their amounts.

                                   Article 3266b. V.T.C.S.. provides in pertinent pert:
    200 Main Plaza. Suite 400
    San Antonio. TX. 792052797
    5121225.4191                               Section 1. When in the acquisition of real
                                            property for a program or project undertaken by
                                            any department, agency, or instrumentality of this
    An Equal Opportunityl
                                            State or of a political subdivision of this State
    Affirmative Action Employer
                                            it becomes necessary that any individual, family,
                                            property of e business concern. farm or ranch
                                            operation, or nonprofit organization be displaced,
                                            they may be paid their moving expenses and
                                            relocation paymants, provided financial assistance
/-                                          to acquire replacement housing, or allowed rental
                                            supplements   and   compensation    for   expenses




                                                             p. 30
Mr. Leonard H. 0. Spear-man- Page 2   (JM-8)




          incidental to the transfer of property to the
          State, all of which payments or expenditures are
          hereby declared to be an expense and cost of such
          property acquisition. Each department. agency, or
          instrumentality of this State or of a political
          subdivision of this State shall formulate the
          rules and regulations necessary to carry out the
          provisions of this section and shall not authorize
          payments or expenditures in excess of those
          authorized by or under the Federal Uniform
          Relocation Assistance of Real Property Acquisition
          Policies Program.

             ....

             Sec. 2. Each department, agency or instrumen-
          tality of this State or of a politicel subdivision
          of this State may provide a relocation advisory
          service for all individuals, families, business
          concerns. farm and ranch operations, and non
          profit organizations which shsll be compatible
          with the Federal Uniform Relocation Assistance
          Advisory program.

The language of article 3266b makes it applicable to "any department.   ?
agency. or instrumentality of the State or of a political subdivision
of the State," and institutions of higher education are agencies of
the state. See Attorney General Opinions H-1116 (1978); R-365 (1974).
Texas South=    University is an institution of higher education.
Educ. Code 561.003(3), (4). (7). Therefore, it is subject to article
3266b.

     The question of whether or not Texas Southern University is
obligated to make payments under article 3266b to owners of property
acquired by the university for the purpose of expanding its campus
facilities depends on whether the provisions of article 3266b are
mandatory or permissive in nature.      Section 1 of article 3266b
provides that persons whose property is acquired under those
circumstances to which the statute is made applicable "may be paid"
their moving and other specified expenses. Although the word "may" is
sometimes construed se if it were "shell," It is ordinarily used as a
word of permission, end, before treating it as a word of command,
there should be something either in the subject matter or the context
to indicate an intention that it be employed in that sense. San
Angelo National Bank v. Fitzpatrick, 30 S.W. 1053. 1054 (Tex. 1895).
To place article 3266b in context requires an examination of the
history of relocation assistance legislation.




                                  p. 31
Mr. Leonard H. 0. Spearman - Page 3    (Jh-8)




     The Federal Highway Relocation Assistance Act (formerly 23
U.S.C.. sections 501 thru 512) was enacted August 23, 1968, by Public
Law 90-495. 82 Stat. 830-34. Public Law 90-495 provided in pertinent
part:

             Section 502. Assurances of adequate relocation
          assistance program.

             The Secretary shell not approve any project
          under section 106 or section 117 of this title
          which will cause the displacement of any person,
          business, or farm operation unless he receives
          satisfactory assurances from the State highway
          department that --

             (1) fair and reasonable relocation and other
          payments shall be afforded to displaced persons in
          accordance with sections 505. 506, and 507 of this
          title;

             (2) relocation assistance programs offering
          the services described in section 508 of this
          title shall be afforded to displaced persons.

In its original form, article 3266b was enacted by the Sixty-first
Legislature as article 6674n-4. Acts 1969, 61st Leg., ch. 45, at 133.
The original enactment, while substantially similar to the present
statute, referred only to the acquisition of rights of way for stste
highWayS. Article 6674n-4 provided in pertinent part:

              Section 1. When in the acquisition of right of
          the way for any highway designated by the State
          Highway Coxsaission as part of the State Highway
          System  it becomes necessary that any individual,
          family, property of a business concern, farm or
          ranch operation or non-profit organization be
          displaced they may be paid their moving expenses,
          relocation    payments,   be   provided   financial
          assistance to acquire replacement housing, or
          allowed rental supplements and compensated for
          expenses incidental to the transfer of property to
          the state all of which payments or expenditures
          are hereby declared to be an expense and cost of
          right of way acquisition.       The State Highway
          Commission    shall   formulate   the   rules   and
          regulations necessary to carry out the provisions
          of this section and shall not authorize payments
          or expenditures in excess of those authorized by
          the Federal Highway Relocation Assistance program.




                                      p. 32
                                                                             ,
Mr. Leonard H. 0. Spearman - Page 4   \JM-6)

                                                                             ._


                                                                         ?
             Sec.  2.  The State Highway Cosaaissioa Shall
          provide a relocation advisory service for all
          individuals, families, business concerns, farm and
          ranch, operations, and non-profit organitations
          which shall be compatible with the Federal Highway
          Relocation Advisory program.

It is cl.ear from the structure of article 6674n-4, its repeated
reference to the Federal Highway Relocation Assistance Program and the
time of its enactment, that it was passed as enabling legislation to
permit the State Highway Department to comply with the requirements of
the Federal Highway Relocation Assistance Act in acquiring rights of
way for its federally-funded projects.

     The Uniform Relocation Assistsnce and Real Property Acquisition
Policies Act of 1970, 42 U.S.C.. sections 4601-4655, was enacted by
Public Law 91-646. 84 Stat. 1894, and took effect January 2. 1971.
This statute was patterned after the Federal Highway Relocation
Assistance Act of 1968. above, and expanded its coverage   to include
all federally funded projects requiring acquisition of real property.
Like the Federal Highway Relocation Assistance Act of 1968, the
Uniform Relocation Assistance and Reel Property Acquisition Policies
Act of 1970 made the paymsnt of relocation assistance mandatory for
federally funded projects.

     Article 6674n-4, V.T.C.S., was amended by the Sixty-second
Legislature, effective August 30, 1971. to expand its coverage to
include all departments, agencies, or instrumentalities of the state
of Texas or any of its political subdivisions. Acts 1971, 62d Leg.,
ch. 918. at 2817.

     These provisions were recodified in 1973, as the present article
3266b. V.T.C.S., quoted previously. Acts 1973. 63d Leg., ch. 586, at
1625.

     The practical effect of the amendments leading to the present
article 3266b. following as they did the enactment of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of
1970, was to expand the coverage    of .article 3266b to include all
agencies, instrumentelities, and political subdivisions of the state,
pursuant to the expansion in the scope of the Federal Relocation
Assistance Program. This expansion was required for the same reason
that the passage of the original article 6674n-4 was required, that
IS. in order to enable the affected agencies to comply with the
mandatory requirements of federal relocation assistance legislation.
The provision that displaced persons "may be paid" relocation
assistance payments has remained a feature of all enactments on this
subject commencing with article 6674n-4 and continuing to the present
article 3266b. This is consistent with the legislature's evident




                                  p. 33
     Mr. Leonard H. 0. Spearman - Page 5    (Jh-8)

L,



     purpose of permitting state agencies receiving federal funds for
     programs which would require acquisition of real property to comply
     with federal requirements for such funding. It is reasonable to
     suppose that.an intention on the part of the legislature to command
     the state and its agencies and subdivisions to pay very extensive
     relocation assistance benefits, in all csses, would have been
     manifested by a change from the permissive language of these enabling
     acts to some form of mandatory language.

          It is clear that there is nothing in the subject matter or
     context of article 3266b to indicate that the word "may" was used in
     other than the permissive sense in which it is normally understood.

          The answer to your question 2a. then, is that article 3266b is
     not a mandatory provision and does not in its own terms obligate Texas
     Southern University to pay relocation assistance to owners of property
     acquired for the purpose of expanding its campus.

          In answer to your question 2b. should Texas Southern University
     elect to make relocation assistance payments, or be required to do so
     by federal law. such payments would have to be made in full compliance
     with the provisions of article 3266b. including that article's
     provisions concerning rule-making. If the university establishes a
     relocation advisory program either electively or in order to comply
     with federal law, it is consistent with the Federal Uniform Relocation
     Advisory Program. The university would then be required to make
     payments to all persons determined to be eligible under the rules thus
     established.

          Under terms of article 3266b. agencies making relocation
     assistance payments are expressly forbidden to "authorize payments or
     expenditures in excess of those authorized by or under the Federal
     Uniform Relocation Assistance and Real Property Acquisition Policies
     Program." In answer to your third question. then, the limit for any
     relocation assistance payment made under any such program in which
     Texas Southern University may elect to involve itself will be
     determined by consulting the provisions of the Uniform Relocation
     Assistance and Real Property Acquisition Policies Act of 1970, cited
     previously, with respect to the particular type of payment to be made.

                                  SUMMARY

                 Article 3266b, V.T.C.S.. is by its terms
              applicable to institutions of higher learning.
              Article 3266b. V.T.C.S., is permissive and not
              mandatory in nature and does not of its own force
              obligate any department, agency, instrumentality,
              or political subdivision of the state to make
              relocation assistance payments or to provide




                                       p. 34
Mr. Leonard 8. 0. Spearman - Page 6      (JM-8)                       :




            relocation advisory services in connection with
            its acquisition of real property.        Should a
            department, agency. instrumantality, or politicel
            subdivision of the state elect to make relocation
            assistance   payments   and   provide   relocetion
            advisory services under article 3266b, or should
            it be required to do so by federal law, such
            payments should be made uniformly to all persons
            determined to be eligible under the rules required
            to be made under article 3266b. The limits for
            relocation assistance payments to be made under
            article 3266b have been set by the legislature by
            reference to the Uniform Relocation Assistance and
            Real Property Acquisition Policies Act of 1970. 42
            U.S.C., sections 4601-4655, and may be determined
            in each case by reference to the specific
            provisions of that act.

                                      -Jz#&



                                          JIM     MATTOX
                                          Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney   General

Prepared by William T. Palmer
Assistant Attorney Ganeral

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Willism T. Palmer




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