                                                                                                                    .




                                   The Attorney General of Texas
                                                        October     22.    1981

MARK WHITE
Attorney General


Supreme Court Bullding         Fred Wendorf, Ph.D.,    Chairman                      Opinion     No. MW-378
P. 0. Box 12546                Texas Antiquities   Committee
Awtln. TX. 78711               P. 0. Box 12276, Capitol     Station                  Re:  Contract  for renovation
51214752501                    Austin, Texas     78711                               of Sam Houston Woodland Home
Telex 91OiB74-1357
                                                                                     in Huntsville
Telecopier  51214750296

                               Dear Mr. Wendorf:
1607 MaIn St., Suite   1400
Dallas. TX. 75201                     The Sam Houston      Woodland     Home in Huntsville,       Texas,   is   the
214l7428944
                               subject    of your   opinion    request.     This    home is   situated   on land
                               administered    by the Board of Regents        of the Texas State       University
4524 Alberta Ave., Suite 160   System.     It is designated   as a National      Historic   Landmark, is listed
El Paso, TX. 79905             in the National    Register   of Historic     Places,    and is a Recorded Texas
9151533.3484                   Historic   Landmark.

1220 Dallas Ave.. Suite 202
                                     On June 24. 1981, the Texas Antiquities           Committee designated      the
Houston. TX. 77002             Woodland Home as a State Archeological          Landmark.    We will    assume that
7131650-0965                   this designation       was effective   to confer    "landmark"   status    upon the
                               home.     The Board of Regents       is concerned     about  the effect     of this
                               designation      upon a contract     it entered    into   on May 23,      1980,   for
608 Broadway, Suite 312
Lubbock. TX. 79401             extensive     renovation   of the home.     Much of the renovation         work had
SCW747.5239                    been completed      when the designation    was made. but more       remains to be
                               done.     Your question    is whether    the Board of Regents       must obtain      a
                               permit    from the Texas Antiquities        Committee before     this    renovation
4309 N. Tenth, Suite   B
                               work can be completed.
McAllen. TX. 78501
5lM2.4547
                                      Sections     191.001,    et   seq.,     of   the     Natural     Resources    Code
                               constitute      the Antiquities      Code of Texas.           These    provisions    were
200 Main Plaza. Suite 400      enacted    in 1977.     Acts 1977, 65th Leg..        ch. 871, at 2345.          Formerly,
San Antonio, TX. 79205
                               they were contained       in article   6145-9.    V.T.C.S.,     enacted   in 1969.
51212254191

                                      Several Antiquities         Code provisions     are   relevant     to your        inquiry.
An Equal OpportunityI          Section   191.092 provides         that:
Attinnative Action EmPlOW

                                                  Other sites,       objects,       buildings,      artifacts,
                                           implements,        and       locations          of     historical,
                                           archeological,           scientific,           or      educational
                                           interest,        including           those       pertaining         to
                                           prehistoric      and historical           American      Indians     or
                                           aboriginal      campsites,       dwellings,        and habitation
                                           sites,    their   artifacts      and implements        of culture,




                                                                    p.    1273
                        .

Mr. Fred Wendorf             - Page 2         (MW-378)




                as well as archeological           sites   of every character
                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
                the    sole      property     of     the   State     of  Texas.
                (Emphasis added).

Prior    to the effective              date        of     Senate     Bill     No.   659,   section   191.093
provided    that:

                      Landmarks under Section      191.091 of this code
                are the sole property      of the State of Texas and
                may not be taken,      altered,     damaged,     destroyed,
                salvaged,  or excavated    without    a contract     with or
                permit from the committee.       (Emphasis added).

Section    191.094          provides    in pertinent               part     that:

                        (a) Any site located          on private      land which is
                determined by majority           vote of the committee to be
                of     sufficient         archeological,          scientific,         or
                historical         significance        to    scientific          study,
                interest,         or     public      representation           of     the
                aboriginal       or historical         past    of    Texas may be
                designated      a state      archeological        landmark by the
                committee.

Section    191.095      provides        that:

                       All    sites    or     items    of    archeological,
                scientific,      or historical      interest     located    on
                private     land    in the    State   of   Texas    in areas
                designated     as landmarks,      as provided     in Section
                191.094 of this code,        and landmarks under Section
                191.092 of this code,        may not be taken, altered,
                damaged, destroyed,      salvaged,   or excavated     without
                a permit from the committee or in violation             of the
                terms of the permit.        (Emphasis added).

     Senate   Bill   No. 659 became                         effective    on August 31.   1981.            It
amended section    191.093 by adding                       the following    underlined language:

                      Landmarks under    Section   191.091   or Section
                191.092 of this code are the sole property        of the
                State   of Texas and may not be taken,         altered,
                damaged, destroyed,   salvaged,   or excavated  without
                a contract   with   or permit    from the committee.
                (Emphasis added).

       Before      reaching        your question,                  we will   address two threshold
questions:         (1) Prior        to August 31.                  1981, was the Texas Antiquities




                                              p.        1274
Mr. Fred Wendorf         - Page 3            (MW-378)
                                                                                                 a


Committee    authorized      to         require   that    a permit   be obtained            before
section   191.092 landmarks             are altered?      (2) May the committee            require
that a permit be obtained                 if it  has not formally     designated           an item
listed  in section     191.092          as a “state    archeological   landmark”?

       Texas Antiquities         Committee v. Dallas             County Community College
District.      554 S.W.2d 924 (Tex.           1977).     is pertinent        to this      inquiry.
There,     the   college     district      sought     to    set    aside    an    order     of the
Antiquities      Committee denying it a permit to demolish three buildings.
The      committee      had     never      designated         the     buildings        as     state
archeological        landmarks.       Nevertheless,         it argued       that    the college
district      had to obtain         a permit      before       demolishing       the buildings
because     they were listed         in the National          Register     of Historic        Sites
and Buildings         and were       therefore     of     “historical        interest”       within
section     6, article      6145-9,     V.T.C.S.       That section          then provided         as
follows:

               All...     buildings...         of historical...        interest...
               located...       on...     lands belonging       to the State of
               Texas      or.. .      any    county,     city,     or     political
               subdivision            of      the     state       are.. .       State
               Archeological         Landmarks and are the sole property
               of the State of Texas and all such sites                    or items
               located     on private       lands withjn the State of Texas
               in areas       that have been designated              as a ‘State
               Archeological          Landmark’ as hereinafter            provided,
               may not be taken,             altered,    damaged...      withcut     a
               permit from.. . the Antiquities              Committee.

-See     §§191.092-191.095.

       Speaking     for   four      members of     the    court,    Justice     Pope held
section    6 unconstitutional         on its   face and as applied          in that case.
With    respect     to   the    latter    conclusion,       he found     no substantial
evidence     to support       the committee’s        refusal     to grant     the permit.
Justice     Greenhill     concurred,      agreeing      with   the plurality       on the
substantial     evidence     point,    but declining     to reach the constitutional
questions.      Justice    Denton dissented.

         The portion     of   Justice        Pope’s   plurality   opinion     that   concerns     us
is     as follows:

               The Antiquities        Committee has not designated             any
               of    the    three     buildings       at    issue     as    State
               Archeolol 3ical      Landmarks,      but   the Connnittee       has
               denied the Collene        District’s      request    to demolish
               the buildings       based upon the buildings’           expedited
               inclusion      in the National         Register     of Historic
               Sites    and Buildings.         The Antiquities        Code does
               not give the Antiquities           Committee authority        .over
               buildings     in the National         Register;    instead,     the
               Code    only     gives   the     Committee      authority      over




                                        p.    1275
Mr. Fred Wendorf - Page 4               (MW-378)

                                                                                              .


              buildings    which the Committee has designated          as a
              State Archeological      Landmark.    Since the Committee
              has    not    designated      the   buildings     as    State
              Archeological     Landmarks. the College      District    does
              not    need    the     Conrmittee’s    permission      before
              demolishing    the buildings.

554 S.W.Zd      at 926.     (Emphasis     added).

       The meaning          of     this     statement    is    clear:      the     Antiquities
Committee       has no jurisdiction              over   buildings      which     it    has    not
designated       as state       archeological       landmarks,     and its     permission      is
therefore      not needed before          such a building      is altered.       The question
concerns     the legal       significance       of this   statement.       Although     neither
Justice    Greenhill      nor Justice        Denton challenged      it in their      opinions,
it technically        reflects       the views of only four members of the court.
Moreover,      if   the fact        that the buildings        were never designated            as
landmarks      was dispositive          of the question        of whether       a permit      was
needed     to     demolish       them,     the   court   need     not   have     reached      the
constitutional       questions.         It could have disposed        of the case on that
ground alone.

       In our opinion,       however,      this statement         resolves    the question      of
when the Antiquities           Committee acquires            jurisdiction       of buildings,
sites,     and other items.         First.     the court of civil           anneals
                                                                             ..        relied   on
this     statement      in Board of          Regents     v.    Walker      County    Historical
Commission,       608 S.W.2d 252 (Tex.             Civ.   App. - Houston          114th Dist.1
1980, no writ),        which involved        the Woodland Home.            Second,    it is the
only reasonable        construction      of the Antiquities           Code provisions.        One
can hardly be expected to know that a particular                      item is a “landmark,”
and    is    therefore     subject      to     the    permit      requirement,       until     the
Antiquities      Committee formally         designates      it as such.

       The Woodland Home is a “building”    located    on land “belonging      to
the State of Texas or to any county,     city,    or political    subdivision”
within   section  191.092. For the foregoing      reasons,   we conclude     that
it became a “landmark” within the Antiquities       Code on June 24, 1981.

       We now consider          whether,   prior   to   August    31,     1981,     the
Antiquities       Committee’s   permission  was needed before     section     191.092
landmarks could be altered.          Put another way. does Senate Bill No. 659
effect    any change in the law in this area?         Before August 31. section
191.093     referred   only to “landmarks     under Section    191.091.”      Section
191.095 provided,       however, that:

                    All     sites     or     items      of    archeological,
             scientific,       or   historical       interest     located      on
             private      land    in the      State    of   Texas     in areas
             designated      as landmarks,        as provided      in Section
             191.094 of this code,          and landmarks under Section
             191.092     of this     code,     may not be...        altered...




                                            P.   1276
Mr. Fred Wendorf         - Page 5        (MW-378)



               without     a permit     from the committee....              (Emphasis
               added).

       This section     was derived    from section    6. article      6145-9.    supril.
Section    6 was discussed       in Attorney      General   Opinion      H-250   (1974),
which observed       that although     the “peculiar      wording”    of the section
might suggest     that the “taken,     altered,    damaged,” etc..      clause   applied
only to landmarks        on private     lands,   the legislature       certainly     must
have intended       to protect     landmarks    on public     land “with       the same
vigor. ” Attorney      General Opinion H-250 concluded         as follows:

               In our opinion,     then.    56 of the Antiquities     Code
               requires    that the permission      of the Antiquities
               Committee be obtained         in the form of a permit
               before   any site    of historical      or archeological
               interest   located   on public    lands can be altered,
               damaged, destroyed,     etc.    (Emphasis added).

       In our opinion,        the legislature       merely ratified      this   conclusion
when it       enacted     section     191.095    in     1977.      The wording     of    that
section--particularly            its   reference       to     section   191.092--clearly
indicates      that   all    section    191.092     landmarks were intended           to be
subject    to the pzit         requirement.      Senate Bill No. 659 does not enact
new law, therefore,        but only clarifies        existing      law.

      The Antiquities   Committee,   therefore,   was obliged   to require     that
a permit   be obtained    prior   to the alteration      of a section      191.092
landmark   even before     Senate   Bill     No. 659 became effective.          The
remaining  question   is whether the committee may now require          the Board
of Regents    to obtain    a permit      before  further   renovation     work is
performed   on the Woodland Home pursuant        to the contract      of May 23,
1980.

        Section     191.093 now provides             that section        191.092 landmarks         “may
not be . ..altered      . ..without      a . ..permit     from the committee.”            The law is
settled      that    unambiguous         statutory        language       will   he construed          as
written.        Ex parte         Roloff,       510 S.W.Zd         913 (Tex.       1974).       In our
opinion,      a straightforward             reading     and application          of this       statute
compels the conclusion             that once a building               is designated      as a “state
archeological        landmark.”        it may not be altered              without   a permit       from
the     committee.          We perceive           no basis          for   concluding        that     the
legislature       did not intend for the permit requirement                       to apply where,
as here,        alterations         were       contracted        for    before     a building         is
designated      a landmark.          On the contrary.           given the state’s         legitimate
interest      in preserving          the integrity           of landmarks,        we believe         the
legislature       fully      intended      the permit         requirement      to apply       in such
instances.

       It is suggested  in an accompanying     brief   that to conclude      that
the Board of Regents must obtain      a permit before     this renovation    work
is completed    is to raise  constitutional     questions     under article     I,
section   10 of the Federal  Constitution     and article     I, section    16 of




                                          p.   1277
Mr. Fred Wendorf          - Page 6        (NW-378)




 the Texas Constitution,              which prohibit         laws impairing            the obligation
 of contracts.          However. we are not here confronted                        with lenislatlon
which      has that       effect.         See,   e.g..      Texas       State      Board of         Barber
 Examiners      v.    Beaumont Barber College.                 Inc.,       454 S.W.Zd        729 (Tex.
 1970);    Biddle     v. Board of Adjustment,               Village        of Spring Valley,           316
 S.W.2d 437 (Tex.          Clv. App. - Houston 1958. writ ref’d                          n.r.e.l:      see
also     review     of cases        in- Attorney       General- Letter            Advisory        No; 136
(1977).       As we have observed,           even though section              191.093 has now been
 amended to include            section       191.092     landmarks.           section     191.095      has
existed     in its present         form since 1977,           Accordingly,          when the parties
entered      into    the May 23. 1980, contract,                 the law then provided                that
section     191.092 landmarks may not be altered                     without a permit from the
committee.         The parties         must be presumed               to have known that               the
Woodland Home could             at any time he designated                    as a landmark,           thus
 triggering       the permit         requirement.          See.      e.g.,       Reid v.       Gulf Oil
Corporation,         323 S.W.2d          107 (Tex.        Civ.       App.      -    Beaumont        1959),
affirmed,      337 S.W.2d 267 (Tex. 1960); Lange v. Schulte,                           276 S.W.2d 889
 (Tex. Civ. App. - Amarillo               1954, writ ref’d           n.r.e.);        13 Tex. Jur. 2d
Contracts       $165 (parties         to contract       presumed to have known existing
law and to have contracted                 with reference           to it).         Our courts        have
held that the enforcement               of legislation         in effect         when a contract         is
made does not Impair the obligations                   created       by the contract.             McKenna
v. City of Galveston,             113 S.W.2d 606 (Tex. Civ. App. - Galveston                         1938,
writ dism’d) ; see also Romeike v. Houston Ind. School                                  District,      368
S.W.2d 895 (Tex. Civ. App. - Waco 1963, no writ).

      We therefore  conclude  that the Board of Regents    must obtain  a
permit from the Texas Antiquities    Committee before renovation work on
the Woodland Home is completed,     even though the work was contracted
for before  the home was designated   a “landmark.”

       It must be emphasized,             however,      that     the committee       may not
arbitrarily      refuse     to grant      a permit        or impose       any requirements
whatsoever     as conditions     precedent       to the issuance       of a permit.      Texas
Antiquities      Committee v. Dallas            County Community College           District,
supra,    demonstrates     that the committee’s         decision     will   be tested under
the substantial       evidence    rule.       In making its decision,           for example,
the committee certainly         could not overlook          the fact that, based upon a
restoration      study    made by an architectural                firm,    the legislature
appropriated     funds for repairs        and rehabilitation         of the Woodland Home
in 1979.      General    Appropriations        Act, Acts 1979, 66th Leg.,            ch. 843,
art.    IV,   01,    at   2844.      In other        words,     the Woodland        Home was
designated     a landmark after         the legislature        had placed      its   stamp of
approval    on the restoration        project     currently    in progress.

                                            SUMMARY

                     The Board    of   Regents  of    the    Texas   State
               University   System must obtain     a permit      from the
               Texas Antiquities     Committee before     completing   the
               renovation  work on the Sam Houston Woodland Home




                                           p.   1278
Mr. Fred Wendorf     - Page 7       (Mb'-378)




             in Huntsville       which      it    contracted    for   in   May,
             1980.




                                                     MARK        WHITE
                                                     Attorney   General of    Texas

JOHN W. FAINTER, JR.
First Assistant Attorney         General

RICHARD E. GRAY III
Executive Assistant     Attorney        General

Prepared    by Jon Bible
Assistant    Attorney  General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,     Chairman
Jon Bible
Rick Gilpin
Eva Loutzenhiser
Jim Moellinger




                                   p.    1279
