                           September 28, 1988




    Mr. T. R. Fehrenbach          Opinion No.   JM-958
    Chairman
    Texas Antiquities Committee   Re: Jurisdiction of the State
    P. 0. BOX 12276               Antiquities   Committee  over
    Austin, Texas   78711         property held by an indepen-
                                  dent school district (RQ-1404)
    Dear Mr. Fehrenbach:
         On behalf of the Texas Antiquities Committee you
    request advice on the authority of the committee          to
    designate school district buildings as state archeological
    landmarks. Your questions arise because of legal challenges
    to the committee's attempts to exercise its statutory
    authority over    school district    property.   See   Texas
    AnticfuitiesCommittee      Dallas C untv Communitv Collese
    District, 554 S.W.2d 9;; (Tex. 197;).    We will review the
    committee's statutory authority and relevant case law before
    turning to your specific questions.
         The committee is created by section 191.011 of the
    Natural Resources Code, and its powers and duties are set
    out in the Antiquities Code of Texas, sections 191.001
    through 191.174 of that code. &R Nat. Res. Code § 191.001.
    It "shall . . . determine the site of and designate land-
    marks . . . as provided in Subchapter D" of chapter 191 of
    the Natural Resources Code. Nat. Res. Code 5 191.051(b)(2).
    Subchapter D provides that:
           [slites,   objects,   buildings,   artifacts,
           implements, and locations of      historical,
           archeological, scientific, or     educational
           interest . . . that are located in, on, or
           under the surface of any land belonging to
           the State of Texas or to any county, city, or
           political subdivision of the state are state
           archeological landmarks and are eligible for
           designation.
    Nat. Res. Code § 191.092(a). A structure    or building   has
P
    historical interest if it:




                                  p. 4855
                               ,.


Mr. T. R. Fehrenbach - Page 2    (JM-958)




           (1) was the site of an event that has
        significance in the history of the United
        States or the State of Texas:
           (2) was significantly associated with the
        life of a famous person:
           (3) was significantly associated with an
        eventthat symbolizes an important principle
        or ideal:
           (4) represents a distinctive architec-
        tural type and has value as an example of a
        period, style, or construction technique; or
           (5) is important as part of the heritage
        of a religious organization, ethnic group, or
        local society.
Nat. Res. Code S 191.092(b).
     Before the committee may designate a structure or
building as a state archeological landmark, it must be
listed on the National Register of Historic Places.    Nat.
Res. Code 5 191.092(c); see 16 U.S.C. 5 470(a).         The
committee is required to adopt rules establishing criteria
for such designations and must consider "any and all fiscal
impact on local political subdivisions" before it may
designate as a state archeological landmark a building or
structure owned by a political subdivision. Nat. Res. Code
f 191.092(d), (e).
     Landmarks designated under section 191.092 of the code
"are the sole property of the State of Texas and may not be
removed, altered, damaged, [or] destroyed . . . without a
contract with or permit from the committee." &    s 191.093.
This provision has been the focus of conflicts between the
committee's role in preserving the historical value of state
archeological landmarks owned by school districts, see
Attorney General Opinion JM-104 (1983), and the school
district's interest in using, altering, or replacing its
buildings to carry out its educational purposes.. &8   Texas
                ittee v. Dallas County Communltv Collea
District, sunrq   G    Hoard of R cents         lker Count:
Historical Com~zssron   608 S.W.2de 252 (zex.W:iv. APP. -
Houston [14th Dist.1'1980, no writ) (building located on
land administered by Board of Regents of the Texas State
University System).
                                                               --.




                                p. 4856
Mr. T. R. Fehrenbach - Page 3    (JM-958)




     Texas Antiauitie
Collece District is t:e leadinTc&e   on t:e authority 0: the
Antiouities Committee and some of vour o-uestions are
specifically based on it. In the palias Co&y      case, the
Texas Supreme Court set aside an order of the Antiquities
Committee denying the Dallas County Community        College
Distr~icta permit to demolish three buildings. The court
was divided on both the reasoning and result of this case.
An opinion of~four judges Nled in favor of the community
college district on the ground that a provision of the
Antiquities Code was both unconstitutional and unconstitu-
tionally applied, and that the permit denial was not
supported by substantial evidence.      The chief    justice
concurred on the basis of the substantial evidence rule and
declined to reach any constitutional question. Four judges
dissented.
     The prevailing opinion of four judges determined that
former section 6 of article 6145-9, V.T.C.S., the prede-
cessor to section 191.092(a) of the Natural Resources Code,
was unconstitutionally vague and lacked sufficient standards
governing the delegation of legislative authority.       The
predecessor statute declared buildings and locations of
historical, archeological,    scientific,        educational
interest located on lands of political sub%visions to be
State Archeological Landmarks. The Antiquities Committee
contended only that the    Dallas buildings were "of his-
torical interest." Neither the statute nor any rule gave
this description more specificity or predictability, and the
law did not include the explicit standards necessary to
prevent arbitrary and discriminatory enforcement.        554
S.W.Zd 924, at 928.
     The same opinion also found the Texas Antiquities Act,
formerly article 6145-9, V.T.C.S., unconstitutional      as
applied to the community college buildings because no sub-
stantial evidence supported the action of the Antiquities
Committee. 554 S.W. 2d 924, at 928. The evidence was such
that reasonable minds could not have reached the conclusion
that the committee must have reached.    Restoration of the
buildings would require the diversion of public funds held
in trust to benefit people in the school district.       In
addition, the buildings could not be restored except by
spending an unreasonable amount of money, and even costly
rebuilding would not make them usable for educational
purposes. 554 S.W.2d 924, at 929.
     In answer to the argument of the Antiquities Committee
that a political subdivision has no contract or property
rights protectable against the committee#s powers, the



                                p. 4857
                                            ,,




Mr. T. R. Fehrenbach - Page 4    (JM-958)




opinion pointed out that a state agency could not divest
property and contract rights in violation of specific
constitutional provisions. Snr:&ove v. Citv of Dalla      40
S.W.Zd 20 (Tex. 1931); &ilam Cq&ntv v. BatemaD, 54 Tex.' 163
(1880).
     We turn to your seven questions.
     You first ask whether the committee's designation of a
public school building as a state archeological landmark
(SAL) would divert dedicated educational funds or property
to non-educational purposes in violation of article VII,
sections 3 and 6, of the Texas Constitution.
     you ask as your second question whether the committee's
denial of a school district's request for a permit to
demolish a designated building would divert educational
funds or property to non-educational purposes in violation
of article VII, sections 3 and 6, of the Texas Constitution.
     Article VII, section 3, of the constitution requires
that certain tax revenues shall be used to support the
llpublicfree schools." See Attorney General Opinion H-961
(1977). Article VII, section 6, provides that lands granted
to the counties for educational purposes are the property of
the counties, with title thereto vested in the counties.
The lands and proceeds generated by the sale thereof are to
be held by the counties "as a trust for the benefit of
public schools therein."     See Attorney General Opinion
JM-729 (1987).
     The prevailing opinion in Texas Antiouities Committee
V. Dallas Countv CommuDitv Collese District, in saying that
constitutional prohibitions would restrain one state agency
from divesting vested property and contract rights of
another agency of the state, cited and discussed Love v.
Citv of u,      a,     and Bilam Countv v. Bateman, szuEmr
cases relying. on article VII, sections 3 and 6, respec-
tively. In Wilam Countv v. BatemaD, the court stated that
the state may not arbitrarily take school land from the
county and give it to private parties.     Milam Countv, 54
Tex. 163, at 166.   In Love v. Citv of Dallas, the Supreme
Court found violative of article VII, section 3, legislation
which required a school district to use its funds to educate
persons who. did not reside in the district.     The school
funds and properties were held in trust by the city, school
district, county, or other statutory agency to be used for
the benefit of the school children of the community and the
legislature could not devote them to any other purpose.
&yg, 40 S.W.Zd 20, at 26. Seem also Citv of El Paso v. El



                                p. 4858
    Mr.   T. R. Fehrenbach - Page 5    (JM-958)



P


                tv Colleae District 729 S.W.2d 296 (Tex. 1986)
    (providing that article VIII,' section l-g(b), of Texas
    Constitution creates exception from article VII, section 3
    prohibition against school tax      funds being used    for
    non-educational purposes).
         We turn to your first question. The designation of a
    school building as an SAL serves to retain the status guo
    and to subject the building to the committee's jurisdiction
    and to the permit requirement in section 191.093 of the
    Natural Resources Code. a      Hoard of Reaents v. Walker
    Countv Hiswcal     oassion    608 S.W.2d 252 (Tex. Civ. App.
    - Houston 114th D:st.] 1986, no writ): Attorney General
    Opinion MW-378 (1981). Thus, it is certainly possible that
    the designation of a building would not change the dis-
    trict's use of dedicated educational funds or property.   We
    cannot, however, rule out the possibility that on the facts
    of some cases the SAL designation will have the effect of
    making such a diversion, for example, by requiring the
    school to maintain a building that can no longer be used for
    educational purposes.
         The answer to your second question will depend on
    the facts of the particular situation, and it cannot be
    answered in an    Attorney  General Opinion.   The court in
    Texas
    Colleae District;  indicated that a constitutional question
    would not have arisen if funds other than public school
    money had been available. 554 S.W.2d 924, at 928. Moreover,
    on the facts of that case, the buildings could not have been
    made usable for educational purposes.        Different facts
    presumably could yield a different conclusion.
           your third question is as follows:
              Is the Committee's reading of the pBllas
              County case correct in that where funds not
              subject to the "public trust01are available,
              the SAL designation and ownership of the
              building's intrinsic    value may   not   be
              disturbed absent a showing of. unsuitability
              for educational purposes?
         The Antiquities Committee had not designated any of the
    three buildings at issue in the Dallas County case as state
    archeological landmarks. 554 S.W.Zd 924, at 926.      Before
    the Supreme Court issued its opinions in that case, this
    office read the statute      itself to designate     certain
    publicly-owned properties as state archeological landmarks.
    See Attorney General Opinions H-620 (1975); H-250 (1974).




                                      p. 4859
Mr. T. R. Fehrenbach - Page 6     (JM-958)




Since the mlas     County case concerned the denial of a
demolition permit, we will answer your question in terms of
the committee's denying a permit to demolish a building.
     We do not agree with your characterization of the
supreme court's decision. Five judges agreed that "this
particular determination of the Antiquities Committee is not
supported by substantial evidence." 554 S.W.Zd 924, at 931
(concurring opinion). This was the basis of the majority
decision. The committee acted arbitrarily and without a
sound basis with respect to the Dallas buildings, as shown
by the reasons set out in the first opinion.        ;EBt In
addition to evidence on the issues you mention, the court
cited evidence that the buildings could be restored only by
complete reconstruction from the foundation up at a cost
greater than new construction and that the outside walls
might collapse if reconstruction were undertaken.    Similar
evidence, as well as facts not before the court in the
Dalla C UntY        could be relevant to other exercises of
the c&m~ttee~?s$mit      power over SAL-designated school
district buildings.   As this office stated in Attorney
General Opinion H-620 (1975), a site may be "of such slight
historic interest and of such little utility" that denial of
a permit would be an unreasonable and arbitrary exercise of
the committee's power. Whether other actions with respect
to school buildings are supported by substantial evidence
must be determined on a case-by-case basis by an adjudicator
with power to make fact-findings, and cannot be determined
in an attorney general opinion.
     Your fourth gues~tionis as follows:
           If the answer to one, two and/or three is
        no, then to what extent, if any, may the
        Committee constitutionally and statutorily
        subject public school properties to      its
        jurisdiction?
     To the extent that this question can be answered in the
abstract, it has been answered in the discussion preceding
your questions and the discussion of your first three
questions.
     your fifth question is as follows:
           If a public school district allows a SAL
        designation of one of its properties, has the
        school district waived its right to assert
        the diversion principle in future proceedings
        (A,    demolition permit proceedings)?




                                p. 4860
Mr. T. R. Fehrenbach - Page 7    (JM-958)




     The Antiquities Committee is subject to the Adminis-
trative Procedure and Texas Register Act, article 6252-13a,
V.T.C.S., and    the   Natural   Resources   Code,   section
191.021(a). A %ontested    case" under that Act includes a
proceeding in which an agency decides whether or not to
issue-~apermit. m     V.T.C.S. 6252-13a, s 3(2), (3).   Your
request letter in fact states that the committee deals with
requests for demolition of SALs as contested cases under the
Administrative Procedure and Texas Register Act. See also
Attorney General Opinion MW-378 (1981) (committee's decision
in permit application cases will be tested under the
substantial evidence rule). The Administrative Procedure
and Texas Register Act gives parties to a contested case
notice and an opportunity for hearing as well are a right to
judicial review after exhaustion of administrative remedies.
V.T.C.S. art. 6252-13a, 55 13, 19.
     You next ask whether the committee's denial of a
demolition permit to a public school district constitutes an
unconstitutional taking of property without compensation.
     Article I, section    17,    of   the   Texas   Constitution
provides in part:
        No person's property shall be taken, damaged
        or destroyed for     or applied to    public
        use without   adequate   compensation  being
        made . . . .
In 2                                            Au t'n, 582
;.:.:d)2:9 (Tex. Civ? App. - Tylk '19795) writ ref'd,
 . . - , a case involving zoning of a privately-owned hotel
as a historic landmark, the court held that the city imposed
a servitude on property when it restricted the owners from
reconstructing, altering, removing, or demolishing       the
building without a permit. Since the city made no provision
for any compensation to the owners, the court held that
there had been a "damaging" of the property for public use
without adequate compensation in violation of article I,
section 17, of the constitution. ;EBLat 238. Thus, designa-
tion of private property as a state archeological landmark
or denial of a demolition permit for private property may
invoke the requirement for adequate compensation in article
I, section 17.
     Article I, section 17, has generally been         read,
however, as applying to~the taking, damaging, or destruction
of private property.   See. e.a,, State v. Steck Co      236
S.W.2d 866, 869 (Tex. Civ. App. - Austin 1951, writ r;f*d).
Public property may be taken for another public use if there



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Mr. T.~R. Fehrenbach - Page 8    (JM-958)




is express or implied legislative authority to do so, if the
additional public use will not materially interfere with the
existing use, or if the subsequent taking is for a public
purpose of greater importance which cannot be accomplished
in any other practical way.        ustin Indeoendent School
pistrict v. Sierra Cl&    495 S.W.td 878 (Tex. 1973); Sn llen
                       224 S.W.Zd 305 (Tex. Civ. Ap;. -
                 writ ref'd n.r.e.).      The committee has
statutory auth&ity to designate school buildings as SALs
and to grant or deny demolition permits to the school
district. If it exercises these powers in compliance with
all applicable.provisions of law, it will not damage or take
property without compensation in violation of article I,
section 17, of the Texas Constitution. Although it has been
argued as a policy matter that governmental bodies should
receive compensation when their property is taken, this view
has not been adopted *in Texas.     &R J. M. Payne, Inter-
o vernmental Condemn ion as a Problem in Pub1ic Finance, 61
Tzx. Law Rev. 949 (1%3).
     Your last question is as follows:
           There being    no   regulatory   standards
        concerning the approval or denial of w
        are the penal provisions. of the Code uncon'
        stitutional on their face since the legisla-
        ture has delegated discretionary authority in
        this area without statutory standards?
     Section 191.171    of   the Natural   Resources   Code
establishes a criminal penalty for violations of        the
provisions of chapter 191 of the code. It states in part:
           (a) A person     violating any    of  the
        provisions of this chapter is guilty of a
        misdemeanor, and on conviction shall      be
        punished by a fine of not less than $50 and
        not more than $1,000, by confinement in jail
        for not more than 30 days, or by both.
Nat. Res. Code § 191.171(a).
     The Natural Resources Code provides that landmarks
established under section 191.091 of the code may not be
removed, altered, damaged, destroyed, salvaged, or excavated
without a contract with or permit from the committee. Nat.
Res. Code 8 191..~093.See also Nat. Res. Code 5 191.095.
     The committee "shall . . . consider the requests for
and issue the permits provided for" in section 191.054 of




                                p. 4862
Mr. T. R. Fehrenbach - Page 9     (JM-958)




the Natural Resources Code. Nat. Res. Code 5 191.051(b)(4).
Section 191.054 provides in part:
           (a) The committee may issue a permit to
        other state agencies     or political    sub-
        f:;A;ions or to qualified -private institu-
                companies, or individuals, for the
        surve; and discovery, excavation, demoli-
        tion, or restoration of or the conduct of
        scientific or educational studies at, in, or
        on landmarks, or     for the discovery     of
        eligible landmarks on public land fi it is



          (b) Restoration shall be defined as any
       rehabilitation of a landmark excepting normal
       maintenance or    alterations to    nonpublic
       interior spaces. (Emphasis added.)
Nat. Res. Code 5 191.054.
     Violations of administrative rules and orders may be
punishable by a legislatively-established penalty.   Dnited
States v. Gordon, 580 F.2d 827 (5th Cir. 1978); Harrincton
v. Rgilroad Co~&jssion 375 S.W.Zd 892 (Tex. 1964); Tuttle
V. Wood 35 S.W.2d 106i (Tex. Civ. App. - San Antonio 1931,
writ rei*d). Section 191.171 of the Natural Resources Code
establishes such a penalty.
     An invalid administrative order may not, however, be
enforced by a criminal penalty. Your last question thus
raises the issue of whether section 191.054 is invalid
because it lacks     regulatory standards concerning  the
approval or denial of permits.
     When the legislature delegates to an agency         the
authority to adopt rules and orders, it must prescribe
adequate standards to guide the discretion it confers.
       Antiouit;ies Couee      v. Dal1 8 Countv Comm nitv
-District,        i4ul2.a:
                         Ex                  561 S.W.2dU 503
(Tex. Crim. App. 1978); Tex. Const. art. II: .q1; art. III,
s 1. The Antiquities Committee has been delegated legisla-
tive authority to grant permits, subject to the standard
that, in the opinion of the committee, the permit is in "the
best interest of the State of Texas."       Nat. Res. Code
s 191.054. We must therefore determine whether the quoted
language provides a sufficient legislative standard to
control the committee's exercise of discretion and to guard



                                p. 4863
Mr. T. R. Fehrenbach - Page 10   (JM-958)




against   arbitrary   and   unfair     decisions   on   permit
applications.
     The standard, "in the best interest of the State of
Texas," was included in the predecessor of section 191.054
when the Antiquities Code was adopted in 1969. Acts 1969,
61st Lag., 26 C.S., ch. 2, 5 10, at 101. As adopted, the
permit provision read in part as follows:
           The  Antiquities    Committee    shall
       authorized to issue permits to other stat:
       agencies or institutions and to qualified
       private institutions, companies, or indivi-
       duals for the takina. salvaainc. excavation,
       restorina. or the conductinc of scientific or
       educational studies at, in, or on State Arche-
       ological Landmarks as in the opinion of the
       Antiquities Committee would be &) the b t
       kiterest of  the  State  of  Texas .   (Rmpha%
       added.)

XL   5 10.
     This provision did not originally appear to contemplate
the alteration or demolition of a public building which had
been designated as a State Archeological Landmark. It was
more relevant to activities such as salvaging or restoration
that were consistent with the purpose of historical pre-
servation set out in the code:
           It is the public policy and in the public
        interest of the State of Texas to locate,
        protect, and preserve all sites, objects,
        buildings, pre-twentieth century shipwrecks,
        and locations of historical, archeological,
        educational, or scientific interest . . . .
Nat. Res. Code 5 191.002. Thus, in the context of the
original Antiquities Code, the cited standard could be read
together with the purpose clause to require the committee's
permit decisions to serve the state's best interest relative
to historical preservation.    See. e.a     S ate  D D
z;zt;;,""',          409 So.2d 53, 57 $a.    :pp. 19:2:* (::
                    interest of the public" refers. to
                                                    .   best
interest of'taxpayers of state): -cation     of Pribil
N.W.2d 356, 358 (Neb. 1966) ("best interest" in &at:::
relating to land transfers between two school districts
means best educative interest).




                             p. 4864
Mr. T. R. Fehrenbach - Page 11   (JM-958)




     Moreover, the adoption of the Antiquities Code was
precipitated by the state's efforts to reclaim 16th century
artifacts removed by a salvage company from a Spanish
galleon which sank off the shore of Texas. Comment, !f&
 exas Ant     ties Code.. An
*%&text,            24 SW. L.9
                      Criteria for D~~&D&&D   I 11 St. Mary's
       76   (1979). -See       Platoro. Ltd. v. Unidentified
        of a Vessel             Supp. 351 (S.D. Tex. 1970),~
m.    371 F. Supp.               Tex. 1973), rev d on other
m,        508 F.2d 1113 (5th Cir. 1975) (PlatoLo I)       The
emergency clause of the bill adopting the code stated in
pa*:
        The fact that irreparable damage and harm is
        rapidly being done to the archeological and
        historical heritage of the State of Texas and
        its citizens,    and that    historical   and
        archeological sites, and treasures on public
        lands are without adequate legal protection
        and supervision and are being destroyed and
        damaged without lawful authority, create an
        emergency . . . .
Acts 1969, 61st Leg. 2d C.S., ch. 2, 5 23, at 103.
     Thus, the nbest interest" standard was adopted by a
legislature anxious to stop private interests from damaging
the state's archeological and historical resources and
imposed a duty on the committee to make permit decisions
that would serve the state's interests in such resources.
These circumstances also support the conclusion that the
committees should make permit decisions that would serve the
state's interests in such resources.
     The "best interest" language has not changed, while
other provisions of the Antiquities Code have been amended
to acknowledge that other important public interests exist
in the governmental functions carried out by political
subdivisions. .The committee must now consider "any and all
fiscal impact" on a local political subdivision before
designating a building or structure which it owns as a state
archeological landmark. Nat. Res. Code 5 191.092(e).     See
m    Nat. Res. Code 5 191.021(b) (procedure for considering
educational purpose of higher education buildings in SAL
designation). Moreover, now that section 191.054 expressly
authorizes the committee to issue a demolition permit for a
building previously designated as a state archeological
landmark, the committee presumably has a duty to consider
the applicantts reasons why such a building should be



                             p. 4865
Mr. T. R. Fehrenbach - Page 12    (JM-958)


                                                               -,


demolished and not preserved. The "best interest" standard,
as originally understood, provides the committee little
guidance when it has to reconcile the state's interest in
historical preservation with a political      subdivision's
competing interest in controlling the use of its real
property to    carry out    its own   legislatively-imposed
responsibilities.
     In Taxas Antwties     Coattee   v. Dallas Countv Com-
mnltv Colleae District     the prevailing opinion of the
supreme court included the following discussion of standards
that should accompany the legislature's delegations of
powers to state agencies:
        Depending upon the nature of the power, the
        agency, and the subject matter,       varying
        degrees of specific standards have       been
        required in testing the reasonable breadth of
        statutes. 1 Sutherland, Statutory Construc-
        tion, 5 4.05 (4th ed. 1975); &R&n   v. State
        Board f Insurance, 160 Tex. 506, 334 S.W.Zd
        278 $60).    Sound reasons support the rule
        that some reasonable standard is essential to
        the    constitutionality     of     statutory
        delegations of powers to state boards and
        commissions.
                    [Quotation from EIgvned v. Citv of
        Roc;rf,      408 U.S.    104, 108-09    (1972)I
        deleted.]
           We adhere to the settled principle that
        statutory delegations of power may not be
        accomplished by language so broad and vague
        that persons *of common intelligence must
        necessarily guess at its meaning and differ
        as to its application.'
554 S.W.Zd at 927-28.     The same opinion of the court
considered the argument that administrative standards in the
form of published rules could be substituted for statutory
standards. 554 S.W.Zd at 928 [discussing Davis, Administra-
tive Law Treatise, 5 2.16 (1st ed. 1970)].      The opinion
stated that in the present case no standard or criteria by
statute or rule provided safeguards for the         affected
parties.
     As the Antiquities Code has been amended to deal with
the legal questions that arose in the Dallas County case,
the legislative intent underlying the code has changed to




                               P. 4866
Mr.   T. R. Fehrenbach   -   Page 13   (JM-958)




acknowledge that public interests other than historical
preservation may be relevant in particular permit applica-
tion cases.   The "best interest" standard is stated in
language broad enough to incorporate the modifications in
the legislative intent brought about by amendments to the
Antiquities Code. m    -tina        v. Texas State Board   f
Medical EXB '   S 310 S.W.2d 557 (Tex. 1958) (amendment a:d
old law must be C&&Ned    as harmonious whole). Relying on
the argument raised in the Uas      Countv case, we be;::;:
the committee may adopt rules which amplify the
interest" standard to give weight to the public interest of
political subdivisions in controlling their resources as
necessary to perform their constitutionally and legisla-
tively imposed duties. The “best   interest of the State of
Texas" in a particular case could reasonably be an interest
arrived at by weighing the public interest in preserving
archeological resources against other important       public
interests seNed   by the governmental entities which have
custody of archeological resources.
     Accordingly, we do not believe that section 191.054
must fall for lack      of regulatory standards or      that
prosecutions under section 191.174 for    violation of the
permit requirements are impermissible. Whether any permit
denial is a valid agency action and whether any individual
is guilty of a violation under section 191.174 must be
determined on a case-by-case basis in an appropriate forum.

                             SUMMARY
                Designation by the State Antiquities Com-
           mittee of a school building as a state archeo-
           logical landmark    could   divert   dedicated
           education funds or property to non-educational
           purposes in violation of article VII, sections
           3 and 6, of the Texas Constitution, depending
           on the facts of the particular case.   Whether
           the committee's denial of a school district's
           request for a permit to demolish a designated
           building would cause such a diversion of
           educational resources would have to be decided
           on a case-by-case basis, considering the facts
           of each particular situation, and subject to
           review by the courts for substantial evidence
           to support the committee8s decision.       The
           committee's decisions in permit application
           cases are contested cases under the Adminis-
           tration Procedure and Texas Register Act and
           the applicants for permits have a right under




                                   p. 4867
Mr. T. R. Fehrenbach - Page 14     (JM-958)




         that statute for judicial        review   of   the
         committee's decision.
             The committee's denial of a demolition
        permit to a school district does not consti-
        tute an unconstitutional taking of property
        without compensation in violation of article
        I, section 17, of the Texas Constitution.
             Section 191.054 of the Natural Resources
        Code, which authorizes the committee to issue
        a demolition permit for state archeological
        landmarks if "it is the opinion of the com-
        mittee #at the permit is in the best interest
        of the State of Texas," is not invalid for
        lack of standards to guide the committee's
        exercise of delegated legislative power.   The
        "best interest" standard may be made more
        specific by reading it in reference to other
        provisions of the Antiquities Code       which
        evidence the legislature's intent for exercise
        of the committee's permit power.




                                   JIM     MATTOX
                                   Attorney General of Texas
MARYRELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General




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