Dr. J. W. Edgar                       Opinion No.   M-1047
Commissioner of Education
Texas Education Agency                Re: Does an independent school
201 East 11th Street                      district have the authority
Austin, Texas                             to lease school property
                                          for 20 years to be operated
Dear Dr. Edgar:                           as a neighborhood center?

     You have requested an opinion regarding the above stated
question. We quote from your letter as follows:

          "Ella Austin Community Center, described as a
     local non-profit organization within the San Antonio
     Independent School District, requested the Board of
     Trustees of such district (1) for use of a district
     owned school facility (building and grounds) not cur-
     rently needed for school purposes, (2) that the district
     make application to the Department of Housing and Urban
     Development (H.U.D.) for a grant ($1,779,667.51) pur-
     suant to Title 42, Section 3103, U,S.C.A. to convert
     and remodel the facility: and (3) that thereafter the
     school district operate the property through Ella
     Austin Community Center as a neighborhood multi-purpose
     center.

          "On June 25, 1971, the district submitted an
     application as requested in (2) above.  It was re-
     jected by the regional office of H.U.D. because allegedly
     it failed to provide for an outright minimum 20-year
     lease by the school district of such desired property
     to the Ella Austin Community Center. See Title 42,
     Section 3103(c) U.S.C.A.




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Dr. J. w. Edgar, Page 2 (M-1047)



          "The proposed neighborhood multi-purpose center
    was planned to include adult evening education, pre-
    school children preparation (Operation Headstart),
    day-care facili~ties, recreation, mental health and
    hygiene facilities, and a dispensary.

          "The Board of Trustees of the San Antonio In-
     dependent School District now requests that I submit
     to the Office of Attorney General for its consideration
     and opinion the following question:

          "Does an independent school district have
          authority to lease for a term of 20 years
          a district-owned elementary school and
          site, not presently used or needed for
          school purposes, to a non-profit organiza-
          tion, which property pursuant to and in line
          with purposes of Title 42, Sections 3101-3108,
          U.S.C.A. would be operated as a neighborhood
          multi-purpose center?"

     This request presents the problem of whether the twenty-year
lease arrangement of the property in question will impede or
interfere with the operation of the school district.

     Our Texas courts have long recognized that the determination
of the use of school property is vested in the school trustees and
that such determination of use is subject to the discretion of the
trustees. Bozeman v, Morrow. 34 S.W.2d 654 (Tex.Civ.App. 1931,
no writ); Trustees of Independent School Dist. of Cleburne v.
Johnson County Democratic Executive Comm., 122 Tex. 48. 52 S.W.2d
71 (1932). This discretion, however, is limited by a determina-
tion that use of school property for non-school purposes will not
interfere with the operation of the school property for school
purposes.  Royse Independent School DiG. v. Reinhardt, 159 S.W.
1010 (Tex.Civ.App., 1913, error ref.,); also, Presley v. Vernon
Parish School 6d.., 19 La..App. 217, 139 So, 692 (1932).




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-.       .

                 Dr. J. W. Edgar, page 3 (M-1047)


                      This office has previously held that the trustees of a school
                 district may lease proper,ty in their discretion for non-school
                 purposes, provided such leasing does not interfere with or impede
                 the operation of the school district's purpose, that is, operating
                 a public school. Attorney General's Opi.nions Nos. O-5354 (1943)
                 and WW-1364 (1962); a.nd 94 A.L.R.2d 1280, Sec. 6, and cited
                 authorities.

                      In the case a,thand, you state that the lease must be an
                 outright lease for t.wenty years in order to satisfy the require-
                 ments of H.U.D, pursuant to Section 3103 of Title 42, U.S.C.A.
                 It should be no,ted that Secti,on 3103 of Title 42 does place a
                 minimum of 20 years use of the property for the grant purposes,
                 and provides further that the use cannot be changed unless the
                 Secretary of H.U.D. a.grees to a change consistent with statutory
                 guidel,ines,

                      Our opi,nion is that a minimum twenty-year lease by the present
                 trustees of the property in question, without any discretion being
                 left in the trustees of the future for possible needed use for
                 school purposes, would exceed the recognized discretionary l.easing
                 authority of the sch,ool, as discussed in the above cited authori-
                 ties, The lease would not be deemed a temporary, casual, or
                 incidental use and would amount to an impermissible diversion of
                 governmental property from its intended use for school purposes.
                 See 94 A.L.R.2d 12'78-12'79,Section 5, and also Madachv v, Huntington
                 Horse Show Assn., 192 SE 128 (W.Va.Sup. 1937). and 111 A.L.R. 1046,
                 1049, holding a twenty year lease illegal  and under which a
                 provision for termination gave the board of education power to
                 repossess the property in approximately three and one-half years.
                 The court therein said:

                            "A board of education has no authority so to
                      divest itself for such a long period of the control
                      of public property which has been placed in its
                      keeping,   The substantial terms of nearly three
                      and one-half years transcends t.he idea of mere
                      temporary usage of property pending its being
                      subjected to its ultimate  and permanent public
                      use."



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    Dr. J. W. Edgar, page 4 (M-1047)



                                SUMMARY

                       An independent school district does
                  not have the authority to give an outright
                  twenty-year lease of school property for use
                  as a neighborhood center, reserving to the
                  school board no discretion to terminate such
                  lease in the event the school should have need
                  of the property in the future.
                                             ~,T
                                          Yours very truly,




    Prepared by James C. McCoy
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Austin Bray
    Jim Swearingen
    Charles Lind
    Gordon Cass

        SAM MCDANIEL
        Staff Legal Assistant

    ALFREDWALKER
    Executive Assistant

        NOLA WHITE
        First Assistant




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