              THE          A          KNEY             GENERAL
                                 OF       TEXAS




Honorable    James U. Cross                          Opinion   No. M-1130
Executive    Director
Parka and Wildlife      Department                   Re:   Validity     of contract
John H. Reagan Building                                    involving      acquisition
Austin,.Texas       78701                                  of Mustang Island         by
                                                           the State of Texas,
                                                           obligations      upon the
                                                           present     Commission and
                                                           remedies available         to
                                                           seller    in case of dis-
Dear Mr. Croes:                                            honor by the State.

      In your recent     request     for opinion   of this office,   you
state that instruments        constituting    a contract   were executed
on behalf  of the Texas Parks and Wildlife           Department by
former Executive     Director     J. R. Singleton    and former Acting
Executive  Director,     Robert G. Mauermann, with Mrs. Ada Rogers
Wilson concerning     the sale of her Interest         in Mustang Island
to the State of Texas.         You ask the following      questions:

             1.     Is   the   contract     valid?

             2.     If the contract   is        determined      to be valid,  what
                    are the contractual          obligations      of the present
                    Commission?

             3.     If the present  Commission chooses not to honor
                    the contract,  what would be Mrs. Ada Rogers
                    Wilson's  remedy at law?

        In answer to your first  question    you are             advised    that
Article    g78f-3al Sec. 3, Vernon's    Penal Code,              provides    in
part that:

                  "The Parks and Wildlife        Commission shall   have
             power and authority       to appoint   an Executive   Director
             who shall    be the chief    executive   officer   of the Parks
             and Wildlife    Department and shall perform its
             administrative     duties.   . . .'



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Honorable    James U. Cross,      page 2          (M-1130)



       We are advised    that there were In effect      at the time of
the execution    of these contracts,      resolutions   of the Commission
specifically    authorizing   the execution      of land purchase
contracts    by the Executive   Director.

       From an examination     of the instruments      and the facts
before   this office,     we hold that the contract      is valid and
duly authorized     at least    by a majority   of the members of the
Commission at the time of its execution          and it is currently
valid and legally      binding as an obligation       of the State of
Texas.     They appear to be for a lawful purpose and are in
acceptable    form.    In our opinion,    nothing has happended to
change the legal      status  of the contract     since Its execution.

       In answer to your second question,             wherein you ask what
are the contractual       obligation    s of the present       Commission,    you
are advised      that the contractual       obligations     of the present
Commission are the same as those of the Commission that
authorized     the execution     of the contracts,       which duty and
obligation     is to carry out the terms and conditions             of the
contract.      All Instruments       in this connection      which were
duly executed      and valid are still       binding    upon the state,
including     the voucher previously        submitted    to the Comptroller
of Public     Accounts.     Although the membership of the commission
has changed and its number has been increased,                 it nevertheless
remains the same legal         entity   that authorized       the execution
of the contract.        The new membership,        however,    is not required
affirmatively      to ratify    the acts of an earlier         commission,

       It is possible    that this second question      is inquiring
further   than the above answer would Indicate,         and that you
are asking what action       must this present    Commission take now.
If this be the case,       the answer would be, “None.”       The contracts
were executed,    the machinery for closing       the transaction
wa& initiated    and the transaction     would have long since been
consummated had there not been an injunction          Issued by the
Federal District      Court for the Western District      of Texas.
This injunction     has now been set aside by the Fifth        Circuit
United States Court of Civil       Appeals.    There exists    no
present   legal  impediment to the closing      of the transaction     and




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Honorable    James U. Cross,        page 3        (M-1130)



administratively       the same should be so processed      unless
stopped by affirmative       action  of a majority    of the Commission.
The rights    and responsibilities     of a state under a contract
are generally      the same as those of Individuals       and the
obli atione     arising   are binding on the state.       52 Tex. Jur.
2d 7 fz0, State of Texas, Sec. 31; 81 C.J.S.         1122, States,
Sec. 25; 49 Am. Jur. 285, States,        etc.,   Sec. 74, and many
cited   cases therein.

        In answer to your hypothetical            third question      concern-
ing the seller's       remedy at law in the event the Commission
chooses    not to honor the contract,           you are advised       that this
office    will presume that the present            commission    will honor
its valid     contractual    obligations      and perform its legal
duties.      For this office     to set forth        the varioue    legal
remedies of the seller,         Mrs. Wilson,       in the event the Commis-
sion breaches      its contractual       obligations     would be to render
legal    advise for the benefit        of unauthorized       private     individ-
uals and a violation       of Article       4399, Vernon's      Civil    Statutes.

                               SUMMARY

                    The contract     involving the acquisition     of
               Mustang Island by the State of Texas constitutes
               a valid,   binding   obligation  of the State of
               Texas, and the contractual      obligations     of the
               present  Commission are to carry out the terms
               and conditions     thereof.




                                                         y General    of   Texas

Prepared    by Harold     Kennedy
Assistant    Attorney     General

APPROVED:
OPINION COMMITl'EE

Kerns Taylor,      Chairman
W. E. Allen,      Co-Chairman



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                                                     .   c




Honorable   James U. Cross,   page 4      (M-1130)



Houghton Brownlee
John Reeves
Linward Shivers
W. 0. Shultz

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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