                                            NE




Hon. C. H. Cavness           'Opinion    No. V-1443
State Auditor
Austin, .Texas                Re:     Applicability     of H.B.
                                      753, Acts 52nd Legis-
                                      lature,    1951, estab-
                                      lishing    an accounting
                                      system for State prop-,
                                      erty,   to such property
                                      as The Alamo, the French
                                      Embassy, Battleship      Tex-
Dear Sir:                             as, and the like.
              Your request    for    an opinion   Is as follows:

            "Your Interpretation      or answers to the
     following    questions   In connection   with House
     Bill   753 of the 52nd Legislature,      an Act pro-
     viding    for the responsibility     and accounting
     for State property,      are desired   not only by
     this office    but also by the State Comptroller
     of Public Accounts and the State Board of
     Control.

              "1 . Are the following   agencies subject
     to all      the provisions  of House Bill No. 7531

                     A.   Texas Hall of State,    Dallas,
                          Texas
                     B.   San Jacinto    Museum, San Jaclnto
                          Monument, Texas
                     C.   Battleship   Texas, San Jacinto
                          Monument, Texas
                     D.   The French Embassy, Austin,
                          Texas
                     E.   The Alamo, San Antonio,     Texas
                     F.   Museum, In the old Land Office
                          Building   here in the Capitol
                          Grounds, operated    by the Daugh-
                          ters of the Republic    and the
                          Daughters of the Confederacy

              "2 .   In the event    any of the above agencies
     are    fount'   to be subject    to compliance  with H.B.
                                                                       .   1




Hon. C. H. Cavness,       page 2     (V-1443)


       No.   '(53,shall   the records,     reports,,  and forms
       as referred    to in Section      2, Sub-section     (a)
       thereof   be filed   with the     Comptroller    by the
       agency in question,     ‘or by    the State Board of
       Control   which serves,. In a     supervisory    capacity?”

            House Bill   753, Acts 52nd Leg.,           R.S. 1951,
ch.   356, p. 602 (Article   6252-G, V.C,.S:),
                                        .               provides:

             “Section     1.    The Legislature      finds that
      the State has a very substantial              investment
      in real and personal          property    and that a sub-
      stantial     portion    of the annual income of the ,
      State is spent to acquire           property     for State
      purposes and to maintain State property.                   The
      purpose of this Act Is to establish                ansystem
      for the orderly        accounting    for State property,
      to establish      responsibility       for the mainte-
      nance and care of State property             and to pre-
      scribe    the method of fixing         pecuniary     liabil-
      ity for the misuse         of State property        by offi-
      cials    and employees.        The principles       embodied
      in this Act dare now found in the common law
      and Statutes      of this State;       this Act restates
      those principles        and prescribes      the imple-,,
      menting procedures.          The State has a real
      interest     in its property      and is entitled        to
      having it managed and used in a sound and
      businesslike      manner so that .the maximum bene-
      fits   may be obtained       from it and the State’s
      investment     thereinprotected.

              “Sec. 2. The provisions         of Articles
      10, 11, 12, 14, 22, and 23, Revised,Civil
      Statutes     of Texas, 1925, and Acts, Fiftieth
      Legislature,      1947, Chapter 359,,on th.e in-
      terpretation      of Statutes     shall apply speci-
      fically     to this Act.      In addition   to these
      standard definitions,         In this Act,   unless
      the context     otherwise     requires:

              “(a)      ‘Agency’ shall     include    any State
      department,        agency,    board or other lnstru-
      mentality,       whethe,r it is financed        in whole
      or in part by funds appropriated               by the
      Legislature        or not; bu,t shall not include
      local    political      subdivisions      of the State,
      such as counties,          cities,   towns, school
      districts,       flood   control    districts,    irri-
      gations      districts,     and the like.
.   .




        Hon. C. H. Cavness,      page 3      (V-1443)



                     "(b)   'Agency head' shall mean the full-
             time State elected     or appointed    official  or
             officials    who administer    the agency or the
             executive    who has been appointed     to administer
             the agency by a part-time       State elected   or
             appointed    of,flclal or officials.

                    "Sec. 3. All real and personal    property
             belonging    to the State shall be accounted    for
             by the head of the agency which'has     possession
             of the property.      ,,

                    "(a)     The Comptroller      of Public Accounts I
             shall administer       the property     accounting     system
             established      by this Act.      The State, Auditor
             shall administer       the property     responsibility
             system established        by this Act.      The Comptrol-
             .ler shall    issue   such rules and regulations
             and manual of Instruction          and prescribe      such
             records,     reports,   and forms as he deems neces-
             sary to accomplish        the objects    of this Act
             subject     to the approval     of.the   State Auditor.
              . . .

                    "(b)     The Comptroller     shall maintain
             a complete and accurate          set of centralized
             records     of State property.        However, where
             the Comptroller        finds that an agency has
             demonstrated       its ability    and competence       to
             maintain complete and accurate            detailed     re-
             cords of the property          it possesses    without
             the detailed       supervision    by the Comptroller,
             the Comptroller        may direct   that the detailed
             records     be keptat      the principal    office     of
             such agency.         Where the Comptroller       issues         I
             such order,      the Comptroller      shall keep only
             summary     records    of the property     of such
             agency and the agency shall keep such de-
             tailed    records     as the Comptroller      directs
             and furnish      the Comptroller      with such re-
             ports at such times as the Comptroller               di-
             rects,

                     "(c)  Each agency head shall cause
             each Item of State property     possessed   by
             his agency to be marked so as to identify
             it.     The agency head shall follow    the ln-
             structlons    iasued by the Comptroller    in
             marking State property.
Hon. C. H. Cavness,       page 4    (V-1443)



            “Sec. 4. (a)    All State agencies       shall
      comply with the provisions     oft this Act and
      shall  keep the property~records      required   by
      this Act.                                  .'

              "(b)   All realnroperty       owned by the
      State    shall be accounted     for   by the agency
      which    possesses  the property.       ,:Y; ,Y.

            "(c)  All personal    property-owned     by
      the State shall be accounted      for by the
      agency which possesses    the property.       The
      Comptroller  shall by regulation       define what
      is meant by personal    property    for the pur-
      poses of this Act.     . . ,

            “Sec.  5. Each agency head is respons-
      ible for the proper custody,     care, malnte-
      nance, and safekeeping     of the State property
      possessed   by his agency.    . . .

             "(e)   Each agency shall make a complete
      physical    inventory of all property    in its
      possession    once a year.  The inventory     shall
      be taken on the date prescribed      for the agen-
      cy by the Comptroller.

           "(f)  The agency head shall forward a
     signed statement describing     the method by
     which the .inventory was verified,    along with
     a copy of such inventory    within forty-five
     (45) days after the inventory     date for the
     agency.

            "(g)   The Comptroller      shall   sub&vise
      the property   accounting     records   of each agen-
      cy so that the records      accurately     reflect
      the property   currently    possessed    by the agen-
      CY. The Comptroller       shall prescribe       the
      methods whereby items of property          are delet-
      ed fr?m the property     records     of the agency.
      . . .

           It is noted ,from the above quoted provisions
that House Bill   753 is applicable    to all property,     real
and personal,   owned by the State;    and to the "agency"
which has possession    of such property.     "Agency    is
defined  by the act as "any State department,       agency,
board or other instrumentality      whether it is financed
.   .




        Hon. C. H. Cavness,        page 5    (V-1443)


        in wl~ole or in p:irt by funds appropriated          hy the
        Leglslxture     or not” with exceptions      not applicable
        to your request.       Therefore,   two questions     must be
        determined    in regard to each property       listed   in your
        request.     First,   is the property     owned by the State?
        Second,    if the property     is owned by the State,     what
        agency,    as defined   by H.B. 753, has possession       Of
        the property?       We will discuss    these questions    as
        they regard the individual        property   under considera-
        tion.

                       1.    The Alamo Property. S.H.B. 1, Acts
        29th   Leg.,    R .S. 1905, ch. 7, p. 7, provides In part:

                       “That the Governor of the State of Texas
               be and is hereby authorized        to purchase at a
               price not to exceed Sixty-five        Thousand Dol-
               lars ($65,000),       and to procure to be execut-
               ed to the State of Texas by the owners of the
               property    herelna’fter   mentioned a good and
               sufficient    conveyance    in fee of all the land
               in the City of San Antonio,        Texas, known as
               the Hugo & Smeltzer Company property,         former-
               ly a part of the old Alamo Mission and adjoln-
               lng the Plamo Church property        now owned by
               the State:     . . .

                       “Sec. 3. Upon the receipt           of the title
               to said land, the Governor shall deliver              the
               property      thus acquired,      together   with the
               Alamo Church property          already    owned by the
               State,     to the custody and care of the Daugh-
               ters of the Republic          of Texas, to be maln-
               talned by them in good order and repair,
               without charge to the State,            as a sacred
               memorial to the heroes who immolated them-
               selves     upon that hallowed ground; and &
                the Daughters of the Republic            of Texas to
               be maintained or remodeled upon plans adopt-
               ed by the Daughters of the Republic              of Tex-
               as, and approved by the Governor of Texas;
               provided      that no changes or alterations
               shall be made in the Alamo Church proper,
               as It now stands,         except such as are abso-
               lutely     necessary    for its preservatipn.        All
               of said property        being subject      to future
                legislation
                leglslation’by by the
                                    ihe Legislature
                                          Leglslacure     of the State
               of Texas. ”
                                                                     .




Hon. C. H. Cavness,     page 6    (V-1443)



             Pursuant to the above quoted provisions
the Alamo property      as it now exists     was acquired
by the State and custody        of the property    placed
 in the Daughters of the Republic.          In construing    its
provisions    it was held in Conley v. Daughters of
the Republic,      106 Tex. 80, 156 S.W. 197.(1913),       that
"the state,     acting  by its Legislature,     had the au-
thority    to acquire   title   to the Alamo property     and
to place that property        in the custody of the cor-
poration,    the Daughters of the Republic."          The court
also stated:

             "We are of the opinion    that by the accept-
      ance of the terms of the statute      the cor-
      poration   became a trustee   for the State."
      155 S.W. at 200.

             Since the Daughters of the Republic        is a
trustee   for the State,    it is an "instrumentality"       which
has possession     of state property,   and it is our opinion
that it constitutes      an agency for the State within the
meaning of H.B.' 753.      Therefore,  the Daughters of the
Republic,    being the agency in possession       of the Alamo
property,    should keep the property     records   required
by the act, account for all property         owned by the State
In its possession,     and file   such reports    as directed
by the Comptrolle:.-.     Letter Opinion to Honorable Hall H.
Logan, Chairman of State Board of Control,          dated Decem-
ber 13, 1949.

           2.    The French Embassy Property. H.B.           728,
Acts 49th Leg., R.S. 1945, ch. 286, p. 455 (Art.             687b,
V.C.S.)  provides:

             "Section  1.  There is hereby appropriated
      all moneys now in the Texas Centennial     Com-
      mission    funds If and when available to apply
      on the purchase of the French Embassy build-
      ing and all properties    therein.

             "Sec. 2.    Said property   to consist    of
      Embassy building      and two and one-half    (24)
      acres out of the Southeast       part of Outlot
      No. 1, in Division      B, City of Austin,    Texas,
      facing   easterly   on San Marcos Street,     with
      line commencing at the intersection        of San
      Marcos and Ninth Streets       and running south-
      erly with the West line of San Marcos Street
      to an alley     between Seventh and Ninth Streets.
Honk. C. H. Cavness,      page 7     (V-1443)




      main In custody      of   the’Bo&d     bf Control.”

           Pursuant to the foregoing      provisions     the
State Board of.C.ontrol    was authorized    to purchase
the French Embassy property      for the State.      Att’y
Oen. Op. V-206 (1947).       As soon as title    was ac-
quired by the State,     custody and possebsion      of the
French Embassy,property      was placed in the Daughters
of the Republic    in accordance    with the provision     of
H.B. 728 of the 49th Legislature.        Therefore,    our
discussion  relative    to the Alamo property     is appli-
cable to the French Embassy property.

          3. Battleship   Texas.  The Battleship Tex-
as wa8 acquired  by the State by gift from the United
States Oovernment.

           Article  6145-2, V.C.S.,   created  the Battle-
ship Texak Commission for the purpose of accepting
the gift  and maintaining   the property   as a permanent
memorial.   Section  3 provides:
              “The duties of the Commission shall be:
      To provide a proper berth for the Battleship
       ‘Texas,’   to select    a location      add&cent to,
      or on, the San Jaclnto         Battlegrounds       for
      such. b,pptti; ‘to .+eady th&Ges&Xi’fo,r          visita-’
      tion by ,the, publicj     to ascertain,       and insti-
      tute    a proper charge for admission           to said
      vesselj    to maintain and operate said vessel
      as a permanent memorial and exhibition,                 and
      to allocatq,the      money herein appropriated
      as may be nkceeeary       for’the     fulfillment       of
      the dutlee contained        herein.      Said Commis-
      sion is further      authorized     to perfornl all
      other duties     in addltion.,Uo      thoae apecifi-
      tally    named above oi- mentioned         below which
      are necessary      to carry out the provisions
      and purposes of this Acti           The aforesaid
Hon. C. H. Cavness,     page 8    (V-1443)



      Commission shall be and hereby is authorized
      to accept gifts  or donations for the pur-
      poses of this Act."

           In a letter    opinion to Mr. Gordon H. Lloyd,
Executive  Secretary   of the Employees Retirement  System,
dated April 11, 1949, this office     held that employees
of the Battleship    Texas Commission were eligible   to
become members of the State Employees 'Retirement     System
since the Commission Is a "Department"     of the State
Government within the meaning of Article     6228a, V.C.S.

           In view of the foregoing,    it is our oFin:
ion that the Battleship     Texas Commission Is an agen-
cy" of the State within the meaning of H.B. 753.        As
it has possession   of the Battleship   Texas,*it  should
keep the property   records   required by the act.

             4.   San Jacinto   Museum Property.    "The San
Jaclnto    State Park',   composed of the lands owned and
acquired    by the State called     the San Jaclnto  battle-
field,    was established    in 1907 by the Legislature      and
placed    in the custody of the State Superintendent         of
Public Buildings      and Grounds (now State Board of Con-
trol)    and the San Jaclnto    State Park Commissioners.
S.B..18,    Acts 30th Leg., R.S. 1907, ch. 48, p. 104.

            In 1939, the San Jacinto     Memorial Tower was
constructed   and the Legislature    then authorized   the
State Board of Control    to contract   with the San Jacinto
Museum of History   Association   to the end that the as-
sociation,  should assume the care,    custody and control
of the SawnJacinto   Memorial Tower.      S.C..R. 21 of the
46th Leg., R.S. 1939, P. 733.

          Attorney   General's   Opinion O-951 (1939) up-
held the validity   of a contract   placing   the care,
custody, and control   of the San Jacinto     Memorial Tower
in the San {aclnto   Museum of History     Association,
stating:
             1,. . * The contract    does not violate
     Article     3, Section   51 of our Constitution,
     nor, so far as we have observed,        any other
     portion     or provision   of the Constitution
     of Texas.      The authority    of the State of
     Texas to enterinto        contracts  of this char-
     acter was upheld In the case of Conley vs.
     Daughters of the Republic;156         S.W. 197.
     . . .
Hon. C. H. Cavness,        page 9       (v-14431,


              ,I
               . . . By Section      6 of the con-~
       tract,   It Is contemplated      that the corpora-
       tion,   as trustee    for the State,    shall    use
       the money collected       from operating     the
       elevator    to defray the expenses of operat-
       ing the elevator,       paying jahltors    and watch-
       men, and for maintenance        and policing     of
       the building,      and for complylng~HSt~h the
       general   terms of the resolution’      bf the ‘Legis-
       lature   In respect     to insurance,   with the
       balance of said moneys, as well as the bal-
       ance of the net profits        remaining after      the
       payment of such expenses,        to be used on the
       grounds of. the San Jaclnto       State Park under
       the direction      of the Board of Control.         . . .’

           Since the San Jacinto      Museum of History    As-
sociation  is trustee   for the State,     It is our opinion
that it constitutes    an “agency” of the State within
the meaning of H.B. 753. Since it is in possession
of the San Jacinto    Memorial Tower, the San Jaclnto
Museum of History Association       should keep the property
record% required    by H.B. 753, account for all State
property  In its possession     as required   by the act,
and file  such reports    as directed    by the Comptroller.

               Old Land Office  Building Property.  H.B.
831,  Acts 24th Leg., R.S. 1915, ch. 208, ‘p. 486, pro-
vides in part:
                :
               “That as soon as the building       located
        near the Capitol       and known as the General
        $ndT;:;;ce      Building,   in Austin,   Travis coun-
                       is vacated the same is hereby set
        aside for’the      uses and purposes of the Daugh-
        ters of the Republic       and the Texas Division
        of the Daughters of the Confederacy;          and the
        said Daughters of the Republic         and the Texas
       ,Divlsion    of the Daughters of the Confederacy
       .be and the same .are hereby authorized         to
        take full    charge of said b,uildlng and use
        the same conjointly       as they see proper;     pro-
        vided,    however,   that the Daughters of the
        Republic    shall occupy the upper floor       of said
        building    and the Texas Division      of the Daul’h-
        ters of the Confederacy       shall occupy the lowor
        floor    of said building:

             “In   order   that   the   said   building   known
  Hon. CI H. Cavness,         page 10    (V-1443)



           as the General Land Office,        and now occupied
           as the General Land Office,        In Austin,  Travis
           county,    Texas be properly    repaired   and re-
           modeled, after     the same has been vacated
           as the General Land Office,        the sum of ten
           thousand ($lO,OOO.OO) dollars         or so much
           thereof    as may be necessary,     is hereby ap-
           propriated    out of any fund not otherwise
           appropriated,     to be used In repairing     and
           remodeling    said building,    the same to be
           expended under the ;dlrection       of the Super-
           intendent    of Public’ Buildings    and Grounds.”

               The Legislature     by the above quoted provl-
  sions placed the custody and control         of the “Old Land
  Office   Building”   in the Daughters of the Republic          and        .
  the Daughters of the Confederacy,        thereby,making      them
  trustees   for the State.      Conley v. Daughters of the
  Re ublic,    supra.   Therefore,    our discussion    relative
-TAiz-T     lamo property    and the French Embassy property
  is applicable     to the “Old Land Office     Building.”

               6.   Texas Hall of State property.     S.B. 22,
  Acts 43rd Leg., 2nd C.S.,     1934, ch. 69,     p. 164, created
  the Texas Centennial     Commlasion, granting    it “plenary
  power to do any and all things In Its judgment necea-
  aary to carry out the purposes of the organization,’
  to-wit,   the holding   of the Texas Centennial    Celebration
  or Celebrations     in 1936.  Section  14 of the act, how-
  ever,   provided:

                  “All lands and bulldings          purchased by
           Legislative     appropriations      and all net prof-
           its that may be acquired          by said Commission
           shall be turned over to the State of Texas
           within two years from the close            of the Texas
           Centennial     celebration     for such disposition
           as the Legislature        may then determine after
           a final    report   to the Legislature        by the
           Commlssion shall have been filed            with the
           Secretary     of State,    and the Commisslon shall
           then be discharged        by legislative      action,
           and the corporation        dissolved.”

                  Section   11 of H.B. 11,    Acts   44th Leg.,      R.S.
  ,1935,    ch.   174, p.   427, pFovidea:

                  "All permanent buildings to be erected
           ,ln the City of Dallas for ,the Central
.   .,   I




                                                              hereby
                                                              ite of
                  the Cerlt;etM.al Central        kpositlon      in the
                  City of Dallas in a&olBdance with plans
                  and spec i~t’ictit! ens a~p1~1~oved    by’ the Texas
                  Centennial     Cetitr,:ri Expositibn,      and on land
                  the title     to wht!:), shall be in the State
                  of Texas.      The Texas CentetYnial Oentral
                  Exposition     shall have the right         to, pos-
                  sessiop    of, and the free use and occupancy
                  of+ the said buildings        for the duration       of
                  ttie Central Exposition;         provided,     however,
                  that the aforesaid        buildings     and the land on
                  which they will be situated            are hereby leased
                  by the State of Texas to the City of Dallas
                  for a period of twenty (20) years,              commenc-
                  ing at the termination          of the Central Exposi-
                  tion,   at a rental      of One Hundred Dollars
                  ($100) per year for said’ buildings,             payable
                  annually    in advance.       , . ,’

                       On October 15, 1935, the City of Dallas ia-
             sued a warranty deed on a tract of land situated  In
             Dallas to the State of Texas upon which the Texas Hall
             of State was built.  Vol. 1920, page 397 of the ~Deed
             Records of Dallas County, Texas.

                        On February 25, 1938, pursuant to the pro-
             visions  of H.B. 11 of the 44th Legislature,   the State
             of Texas acting’through   the Board of-Control  leased
             the Texas Hall of State to the City of Dallas for a
             period of twenty year,?,.  This lease contract  provided
             in part:

                        ‘“The City of Dallas covenant’s z&d agrees
                  that during the term of this lease,           aaid’6Uilkii
                  ing, furnishings,     and equipment’ sh~all .be us’ed’
                  only foe public     purposes;   inclkding     annual
                  State expositions;     and that such building
                  shall not, be maintained      or operated     for pur-
                  poses of private     profit;   that there shall       be
                  no charge imposed upon any exhibitor            ifi any
                  of said buildings     for exhibit    space,     and
                  that there shall be no admission          charge
                  for entrance    into such building.”

                       The City of Dallas is merely a lessee    of
             the State by virtue  of H.B. 11 of the 44th Leglila-
             ture and not an agent or trustee. for the State.     There-
             fore, it Is our opinion  that M&State   Board of Control
     Hon. C; H. Cavness,      page 12     (V-1443)



     is the agent of the State in possession        of the Texas
     Hall of State property      and is required   to keep the
     property    records,  account  for all property   owned by
     the State In its possession,        and file such reports
     as direc’ted    by the Comptroller.

                               SUMMARY

                  House Bill       53, Acts 52nd Leg., R.S. 1951,
           ch. 356, p. 602 7Article         6252-6, V.C.S.),      estab-
           lishing     an accounting    system for state property
           is applicable      to the Texas Hall of State,         San
           Jacinto     Memorial Tower, Battleship      Texas,
           French Embassy, Alamo, and the Old Land Of-                ’
           fice Building,      all of which property      is owned
           by the State of Texas.          The groups or*asso-
           clatlons     in possession    of these state prop-
           erties    are “agencies”     of the State as that
           term Is defined        In H.B. 753, and are, there-
           fore,    required    to keep the property     records,
           account for all State property          in their    POS-
           session,     and file    such reports   as directed
           by the Comptroller        of Public Accounts,     as
           provided     in H.B. 753.

                                           Yours     very   truly,

     APPROVED:                                PRICE DANIEL
                                           Attorney  General
     J. C. Davis, Jr.
     County Affairs  Division

     E. Jacobson    ’
     Reviewing Assistant                       John Reeves
                                                 Assistant
     Charles D. Mathews
     First Assistant

     JR:lllh




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