                     April 26, 1951

Ron. Lerry 0. cox
Executive Director
Board for Texas State Hospitals
     and Special Schools
Austin, Texas
                    Opinion Ho. V-1170
                    Re: Authority of the Board to
                        place permanent improve-
                        ments upon land held by the
                        State subject to mineral re-
                        servation and conditions
                        subsequent.
Dear Sir:
            Your request for opinion reads in part as
followe:
          “The State of Texas, acting by
     and through the State Board of Control
     while it WUB edmlnieterlngthe State
     hospital esetem, acquired title to eev-
     era1 yqccee of real estate which were
     conveyed to the State of Texas nith re-
     strictions as to use. One tract of land
     which was conveyed to the State was Camp
     “,~I;I~ which consists of 2,369 acres
            . At the present  time this Board
     maintains and operates a tuberculosis
     sanatorium on the property. On July 28,
     1948, the War Assets Administratorcon-
     veyed by deed, without warranty, to the
     State of Texas the 2,369 acres of land.
     The deed contained the following con-
     ditions eubaequent:
Hon. Larry 0. Cox - Page 2 - V-1170


         "1. The Federal Governmentretaln-
             ed all mineral rights.
         "2. That for a period of twenty-
             five years from the date of
             the .lnetrumentthe State will
             not resell or lease the prop-
             erty without first obtaining
             the written approval of the War.
             Assets Administration.
          “3. During 'nationalemergencies    "'
               the Federal Government Is en-
               titled to full unrestricted,
               use, ,controland possession
               of the property, 'orany part
               thereof, Including additions
               or Improvementsmade by the
              ,Stete
              .,     of Texas.
                   ..'
          “4. :+he property Is to be used
               for a.tuberculosishospital
               and eanatorfum,and no other
               purpose, for a period of twenty-
               five years,
          II
               .   .   .



          "We have a very similar situation
     existing at the Weaver H. Baker Memorial
     TuberculoefsSanatorium at Mission, Texas.
     This Installationwas once Moore Air Field,
     and the grantors of the real property were
     the cities of Edfnburg, Mission and &Allen.
     The date of the +ed Is November 5, 1947.
     The mineral rights are retained by the
     grantors, and the conditions subsequentare
     exactly the same except that they expire at
     the end of a ten year period instead of a
     twenty-fiveyear period.
          "In addltlon to the two above mentlon-
     ed Installations,this Board Is operating
.


                                                               325
    Hon. Larry 0. Cox - Page 3 - V-1170


         and maintaining the Victory Air Field
         at Vernon, Texas. There la only one re-
         striction ln the deed to the Vernon
         property. This property was conveyed
         to the State of Texas by the City of
         Vernon so long as the property la used
         for a publtc State purpose.”
              After making the foregoing statement, you re-
    quest our opinion as to whether your Board has authority
    to place permaneht Improvementson tracts of land which
    have been conveyed to the State subject to the reserva-
    tions and conditionssubsequent described In your letter.
              The authority of a State agency to acquire
    real estate, the title to which neceeeerIly vests In the
    State, Is dependent upon the will of the State expressed
    through Its legislature. The authorizing legIelatlon
    Involved here la set forth In Senate Bill 147, Acts
    50th Leg., 1947, ch.44, p.58 (Art.3251a,V.C.S.) which
    provides:
               “Section 1. The State Board of Con-
         trol is hereby authorized to negotiate for
         and to acquire from the United States Govern-
         ment, or any agency thereof, or from any
         source whatsoever, by gift, purchase, or
         lease-hold, for and on behalf of the State
         of Texas, for use in the state eleemoeynary
         service, and In the establishmentof state
         tuberculosissanatoriums,any lands: bulld-
         Qw,    and facilitieswithin the State of
         Texas, and any personal properties wherever
         located, and to take title thereto for and
         in the name of the State of Texas.
              “Sec.2. The fact that the State of
         Texas can acquire surplus property, both
         real and personal, from the United States
         Government,and Its several agencies, and
         can acquire such property by gift from pa-
         triotic and public spirited titles, coun-
         ties, and individualcitizen%, and can ac-
         quire such properties by purchase at nominal
                                                          .       I




                                                              .




Hon. Larry 0. Cox - Page 4 - V-1170


     cost, for use In the state eleemoeynary
     service to the great Improvementof pub-
     lic health and the advancement of public
     educatiod, and can, by acquiring such
     property establishgreatly needed tube&
     culoele sanatoriums,and the fact that
     tuberculosisIs a co%miunlcable and ln-
     fectloue disease prevalent In South Texas
     and In East Texas, constitutinga menace
     to the general health and welfare of all.
     the people pf the state, creates an emer-
     gencg. . .
          The East Texas State TuberculosisSanatorium
occupies the Camp Fannln property and was created by
Acts 50th Leg., 1947, ch.344, eec.16, p.679 (Art.3254d,
V.C.S.). This Act was amended by Acts 51et Leg.,R.S.
1949, ch.207, p.389, but the only change was to ellm-
lnate the restrictionof sanatorium use to white per-
eons. The Act ~,ofthe 50th Legislatureprovides:
          “There 1% hereby created the lEaat
     Texas State TuberculosisSanatorium’for
     tubercularwhite person%. As the Board
     of Control Is able to %ecure sufficient
     buildings and equipment to establish such
     tuberculosissanatorium, the said Board
     la hereby authorizedand directed to re-
     condition and re-model %ame as may be
     necessary -toestablish a Sanatorium for
     white pqreone only, to be known and deelg-
     nated as the ‘East Texas State Tubercu-
     losis Sanatorium’.I’
          The Weaver H. Baker Memorial Tuberculosis
Sanatorium occupies Moore Field end was created by
Acts 50th Leg., 1947,ch.330,p.607,wherein It is pro-
vided:
          “There Is hereby appropriatedfor
     the fiscal year ending August 31, 1948,
     the sum of Five Hundred Fifty Thousand
     ($550,000.00)Dollar% for the conver-
     sion and securing of title to Moore Field
Hon. Larry 0. Cox - Page 5 - V-1170


    near Mission, Texas, In accordance with
    Senate Bill No. 147, Acts of Regular See-
    ‘alon, 50th Legislature, 1947; and eetab-
     llahlng the Weaver H. Baker Memorial Tu-    '.
     berculoele Sanatorium. In the event.
     Moore Field cannot be secured the Board
     of Control shall have authority to ee-
     tablleh said Sanatorium at such other
     place as the Board of Control may direct.
     For the fiscal year ending August 31,
     1949 the unexpended balance of Five Hun-
     dred Fifty Thousand ($550,000.00)Dollars
     Is reappropriated for conversion. For the
     fiscal year ending August 31, 1948,~there,
     1% appropriated the sum of Three Hundred
     Ten Thousand ($310,000.00)Dollars to the
     Weaver H. Baker Memorial  TuberculosisSana-
     torium for salaries,  operation,support,
     maintenance, general lmprovemente,re-
     pairs and contingent expenses. For the
     fiscal year ending August 31, 1949, there
     Is appropriated Six Hundred Thousand
     ($~OO,OOO.OO)Dollars for %alarles, opera-
     tion, support, maintenance,general lm-
     provements, repairs and contingentex-
     penses. . .'
           The Victory Air Field was accepted by the 51st
Le lelature (Acts 51et Leg., R.S.l$Q,ch.553,sec.25,p.
108 5) under this language:
          "The Board Is hereby authorized
     to accept from the City of Vernon the
     buildings and land formerly used as an
     air field for the eetabllehmentof a
     State Hospital."
          The nature or extent of the title to be ac-
quired by a State agency Is dependent upon the In-
tention of the Legislature. If the authorizingAct
provides for the acquisition of "full fee simple
title", or "good and merchantabletitle", or u%es
    328
          Hon. Larry 0. Cox - Page 6 - V-1170


          other language which may tend to show a particular
          Intent with respect to the type of title to be ec-
          qulred, then title should be acquired accordingly.
          The authorizing legIelatlonhere simply states that
          the Board Is authorizedto “negotiatefor” end ac-
          quire “by gift, purchase, or leasehold, . . . any
          land%, buildings, and facllltlee . . . and to take
          title thereto for and In the name of the State of
          Texas.” The emergency clause la predicated In part
          upon the fact that the State “can acquire surplus
          property, both real and personal, from the United
          States . . .’ at a nominal coat. The provleIone of
          this Act are quite broad and, to our minds, have the
          effect of delegating to the Board the authority to
          negotiate for, end within its discretion acquire,
          the beet title obtainable. We call attention to the
          fact that the Act anticipatedecquleltlonof surplus
          ,propertleefrom the United States at a time when the
          Federal Governmentwas making all conveyance%of
          these properties subject to the same reservations
i         and conditions as those set forth In the deeds to
          the State. Doubtless, the Legislaturehad knowledge
          of this practice and drew the Act as broad as It did
          with this In mind.
                     In an opinion by this office dated Febru-
          ary 19, 1936, addressed to Hon. T. 0. Walton, Preel-
          dent of A. & M. College (Att’y Gen. Opa.,Book 370,
          p.319), It Is stated:
                     I,. . . Insofar as acquIeltlonby
               sale Is concerned,the Legislature,lneo-
               far as this writer has been able to dle-
               cover, has never made any apeclflc regu-
               lation. The Legislaturehas merely provl-
               ded that the Board of Directors shall have
               the power to purchase land. The only re-
               striction being that the conveyancesshall
               be ~approvedby the Attorney General as to
               form. From a study of the foregoing artl-
               clee, the legislativeIntention to leave
               the manner of acquiring lands, Including
               the matter of mineral reservationby the
               grantor within the broad discretion of the
Hon. Larry 0. Cox - Page 7 - VL1170   s



    Board of::DIrecbore,
                       la quite dlearto
    the writer. Therefore, It Is the opln-
    Ion of this writer, end you are accord-
    ingly advised that the'Boerd of Directors
    of the AgriculturaldcMechanical College
    of Texas does haye,',thelegal.authorItyto
    acquire lands.for use as~experlmentalsta-
    tlona,71th a,mIneraJ reservaflon to'the
    grantor. However; It 1% euggeetdthat
    the Board ehcu~dexercI%e it% .dlecretlon'
    In this matter wlth‘a ti,ewto the type of
    land sought to be acquired, the use to
    which,It 18 to be6%ubject,e~d,~,the  permati
    of the Improvement%to'be placed ~thereoni
    the de%.lrabllIty,,'o.f
                        @tires  cpdrol,'bf,~~t~~
    Iahd'In case :of:future.mlneral:.dyv,eIop-'
    merit,;
          and other mattere',ofequal.Impcr-~
    tande. ,Wlththi~%~~lnmind ~lt:le ,a matter
    wholly within,the .dl%,cre-tlon,ofthe Bo.a,rd
    whether It wlllYbe 'goodbusiness to ac-
    quire any land where the grantor desires
    to retain all or part of the minerals. . .I'
          It has be~en.
                      held in County School Trustees of
'UpehurCounty,~v.Free',134 S.W.2d 935 (Tex.Clv.App.,lggl,
error ref.w.o.m.~),that school trustees may exclude the
mineral estate from a condemnationsuit and acquire only
the surface,,even though the statute provides for con-
demnation of the fee simple title.
          In our opinion, the Board of Control acquired
titles which it could legally acquire. Therefore, as to
the tract% of land here Involved, there Is nothing In-
herent In the titles by reason of the reservatloneend
conditionswhich would prevent their use for permanent
Improvementswithin the sound dl%cretlon of your Board,
and subject to proper appropriationsbelng made there-
for by the Legislature.
          Your request does not present the question of
the legislative intent with respect to permanent con-
struction on the above mentioned tracts of land as re-
flected by the various appropriationbills enacted subse-
quent to the date such land was acquired by the State.ThIs
330
      Hon. Larry 0. Cox - Page 8 - V-1170



      Is a matter upon which we exprecreno opinion.

                           SUMMARY

                Under an Act authorizinga State
           agency to acquire title to surplus prop-
           erties of the United States and others
           through gift, purchase, or leasehold,
           such agency Is authorizedwithin Its
           sound discretion to accept title subject
           to a mineral reservationand certain con-
           ditions subsequent. Consequently,the
           reeervatlonand conditionsdo not In
           themselvesprevent erection of permanent
           Improvement%on lands thus held. The ad-
           vI%abllIty of making such ImprovementsIs
           a matter within the discretion of the
           Board, subject.to legislativeapproprla-
           tlon.
                                 Yours very truly
                                   PRICE DANIEL
                                 Attorney-General




      APPROVED:
      Jesse P. Luton, Jr.
      Reviewing-Assistant
      Charles D. Mathews
      First Assistant
