                                          The Attorney            General of Texas
                                                             September 13, 1982

MARK WHITE
Attorney General


                                         Mr. Laura Cavazos                        Opinion No. MU-514
Supreme      Court Building              President
P. 0. BOX 12546
                                         Texas Tech University                    Re: Authority of Texas Tech
Austin,    TX. 76711. 2546
5121475-2501
                                            Health Sciences Center                University   Health   Sciences
Telex    9101674-1367                    Texas Tech University                    Center to build a structure on
Telecopier     51214750266               Lubbock. Texas   79430                   property deeded to it by the
                                                                                  city of Odessa and Ector
                                                                                  County subject to an easement,
1607 Main St., Suite 1400
Dallas.   TX. 75201-4709                                                          exceptions, reservations and
2141742.6944                                                                      right of reversion

                                         Dear Mr. Cavazos:
4824 Alberta       Ave., Suite     160
El Paso, TX.       799052793
91515333464                                   The following is a response to your request for a legal opinion
                                         from this office. In your request you indicated that the city of
                                                                                                        _.    .
                                         Odessa and Ector County conveyed approximately 6.2 acres ot land
1220 Dallas Ave., Suite           202
                                         located in the city of Odessa to Texas Tech University Health Sciences
Houston,   TX. 770026966
7 13/650-0666
                                         Center (hereinafter TTUHSC) for the purpose of constructing and
                                         maintaining medical school facilities. The facilities would provide
                                         teaching, research, administrative and other medical and health care
606 Broadway,         Suite 312          related activities for the community.
Lubbock,  TX.        79401-3479
6061747-5236
                                              The land was conveyed to TTUHSC by a general warranty deed
                                         subject to    the following easement, exceptions, reservations,
4309 N. Tenth, Suite B                   covenants, and rights of reversion:
McAHen,      TX. 76501-1665
5121662.4547                                         1. Grantor shall retain an easement to use the
                                                  property described herein for parking and like
200 Main Plaza, Suite 400                         uses until the time of construction of the medical
San Antonio.  TX. 76205-2797                      school facilities which time-of construction shall
5121225.4191                                      be evidenced by written notice furnished to
                                                  Grantor by Grantee stating that it has approval of
An Equal        OppOrtunityI
                                                  all of the necessary construction funds and is
Affirmative       Action     Emplover             ready to commence construction.

                                                     2. Grantee shall furnish Grantor with written
                                                  notice of the approval of the funds necessary for
                                                  construction of the medical school facilities. In
                                                  the event that such funding is not approved and
                                                  notice furnished as provided herein within fifteen
                                                  (15) years of the date this deed is signed, then




                                                                     p. 1859
Mr. Lam-o Cavazos - Page 2   (Mw-514)




         title to the lands described herein shall revert
         to the Grantor when Grantor furnishes to Grantee
         notice of such condition and files a copy of such
         notice of reversion in the deed records of the
         County Clerk of Ector County.

            3. Grantee shall furnish Grantor with written
         notice of the time to cotmnenceconstruction of the
         medical school facilities. In the event that such
         construction does not commence within thirty-six
         (36) months of the date the total funds are
         approved, then title to the lands described herein
         shall revert to the Grantor when Grantor furnishes
         to Grantee notice of such condition and files a
         copy of such notice and reversion in the deed
         records of the County Clerk of Ector County.

            4. Subject to the above expressed conditions
         and rights of reversion, it is expressly agreed
         that this conveyance shall be absolute and
         continue in full force and effect so long as such
         lands are used for the purposes of construction
         and use     for medical     school purposes and
         facilities,    or     for    teaching,   research,
         administrative or other related medical and health
         care activities of Texas Tech University Health
         Sciences Center. However, should Grantee cease
         construction or use of such land for such
         aforesaid purposes or activities for a period of
         time of more than eighteen (18) successive months
         and after written notice by the Grantor to Grantee
         of   Grantee's    violation    of   the  foregoing
         conditions, then title to the herein conveyed
         lands shall revert back to the Grantor herein when
         Grantor files a copy of such notice and reversion
         in the deed records of the County Clerk of Ector
         County.

            5. All notices to Grantee shall be deemed
         delivered by depositing such notices with the U.S.
         Mail addressed to the Chairman of the Board of
         Regents, Texas Tech University Health Sciences
         Center, Texas Tech University Campus, Lubbock,
         Texas. All notices to Grantor shall be deemed
         delivered by depositing such notice with the U.S.
         Mail addressed to the County Judge, Ector County
         Courthouse, Odessa, Texas.




                                 p. 1860
Mr. Laura Cavasos - Page 3   (MW-514)




     You have asked this office whether TTUHSC may lawfully construct
medical school facilities on the land subject to the foregoing
easement, exceptions, reservations, covenants, and        rights of
reversion. It is our opinion that TTUHSC may lawfully construct such
facilities on said land.

     TTUHSC has general authority to construct        medical   school
facilities sunder the following two provisions:

            1. The board [Texas Tech University Board of
         Regents] shall make provision for adequate
         physical facilities for the Health Sciences
         Center, including library, auditorium, and animal
         facilities, for use by the Health Sciences Center
         in its teaching and research programs.

Educ. Code P110.07.

            2. The board has the sole and excl"sive
         management and control of lands set aside and
         appropriated to or acquired by the institutions
         under its governance. The board may lease and
         otherwise manage, control, and use the lands in
         any manner and at prices and under terms and
         conditions the board deems best for the interest
         of the institutions....

Educ. Code §llO.ll.

     The foregoing authority is limited, of course, by the state
constitutional prohibitions against gratuitously granting public money
or things of value to others. Three prior opinions of this office
discuss the constitutional limitations in cases somewhat similar to
the one before US. The question in Attorney General Opinion H-257
(1974) was whether the Parks and Wildlife Department could spend state
funds, matched by federal funds, to construct facilities on land owned
in whole or in part by the federal government without violating
article III, section 51 of the Texas Constitution, which states:

            The Legislature shall have no power to make any
         grant or authorize the making of any grant of
         public moneys to any individual, association of
         individuals, municipal or other corporation5
         whatsoever....

     Our opinion concluded that the proposed expenditure would not
violate the foregoing constitutional prohibition against gratuitously
granting public money because the expenditure had a valid public
purpose and an adequate public benefit.




                             p. 1861
Mr. Laura Cavazos - Page 4   (MW-514)




     In Attorney General Opinion H-403 (1974) the question was whether
a state agency could construct a building on land that it did not own
but merely leased. When the lease terminated, the building would
become the property of the landowner. We concluded that:

          [i]n our opinion if an expenditure for the
          erection, repair or maintenance of an improvement
          on leased property is for a proper public purpose
          and if the consideration or benefit to the public
          is adequate, the transaction is not rendered
          invalid by the possibility that the private party
          will realize an unexpected incidental benefit.
          (Emphasis in original).

     The third, Attorney General Opinion H-655 (1975), was written in
response to a question regarding the authority of Texas A & M
University System to construct a building on land that was subject to
a possibility of reverter. We concluded that it was, based on the
public purpose and public benefit test announced in the foregoing
opinions. The opinion concluded by saying:

          Since the public purpose and benefit are evident
          in the instant case, and since there is less
          possibility of divestiture in this case than in
          those involved in our prior opinions, we believe
          the proposed expenditures would be       clearly
          constitutional.

     With this background, we turn now to your question. We note
first that only one of the five restrictions in the deed to TTUHSC
raise the constitutional question discussed in the foregoing three
prior opinions of this office. The first paragraph merely reserves an
easement for parking until construction of the medical facilities
begins. Paragraph 5 deals with notice. Paragraphs 2, 3, and 4 all
contain reversionary clauses but only number 4 raises a constitutional
question regarding the possible reversion of the medical facilities to
be constructed by TTUHSC. Reversion under paragraphs 2 and 3 would
occur, if at all, prior to the construction of-the medical facilities
before any public funds were expended.

     Under paragraph 4 it is possible that the medical facilities to
be built, by TTUBSC could revert to the Grantors. There are two
conditions under which a reversion could take place. The first is if
the construction of the medical facilities ceased for a period of time
in excess of eighteen successive months. The second condition is if
the lands ceased to be used for the location of medical school
facilities, or the facilities ceased to be used for teaching,
research, administration, or other related medical and health care
activities by TTUHSC, and such condition continued for a period of
time in excess of eighteen successive months.




                                p. 1862
.   .


        Mr. Laura Cavazos - Page 5    (MW-514)




             Both of the foregoing conditions that would create the basis for
        a reversion are within the ability of TTUHSC to avoid. By seeing that
        the conditions do not occur, TTUHSC can retain title to the land and
        the medical facilities indefinitely, thereby forestalling any
        constitutional question regarding the gratuitous grant of public
        moneys.

             In any event, it is our opinion that TTUHSC has statutory
        authority to build a medical facility on the land deeded to it by the
        city of Odessa and Ector County and that expenditures for this purpose
        will be for a proper public purpose and will result in an adequate
        public benefit to TTUHSC. E    Educ. Code §110.09.

                                      SUMMARY

                     On the facts provided, Texas Tech University
                  Health Sciences Center may construct medical
                  facilities on land deeded to it by the city of
                  Odessa and Ector County but subject to certain
                  easements, exceptions, reservations, covenants,
                  and rights of reversion without violating article
                  III, section 51 of the Texas Constitution.




                                                 MARK      WHITE
                                                 Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Ralph Aldave
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Ralph Aldave
        Jon Bible
        Rick Gilpin
        Patricia Hinojosa
        Jim Moellinger




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