Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 13,2004
Mr. J. Paul Johnson, Chair Opinion No. GA-0249
Board of Regents
Texas Southern University Re: Whether certain deed restrictions apply to
3 100 Clebume Avenue property owned by Texas Southern University, on
Houston, Texas 77004 which the university is constructing privatized
student housing (RQ-0199-GA)
Dear Mr. Johnson:
On behalf of Texas Southern University (the “University”), your general counsel has asked
whether certain deed restrictions apply to University-owned property, on which the University is
constructing privatized student housing.’
We understand that the University acquired property in the Tierwester Oaks subdivision
within the City of Houston through purchase and condemnation.* The property appears to be subject
to deed restrictions tiled in Harris County with the Tierwester Oaks subdivision plat, including
restrictions upon apartment construction within the subdivision.’ We limit our response to
restrictions on property acquired by a governmental entity by purchase or condemnation.
‘SeeLetter fromLynn Rodriguez,GeneralCounsel,Texas SouthernUniversity,toNancy Fuller, Chair, Opinion
Committee, Texas Attorney General’sOffice, at 1 (Mar. 17,2004) (on file with the Opinion Committee, also available
af http://www.oag.state.tx.us)[hereinafterRequest Letter].
2SeeTelephone conversation with Lynn Rodriguez, General Counsel, Texas Southern University (June 22,
2004); Letter from LionellHoward,President,Tienvester Civic Association,toNancy Fuller, Chair, Opinion Committee,
Texas Attorney General’s Office (May 18, 2004) (on file with the Opinion Committee) [hereinafter Tierwester Civic
Association Brief]; Request Letter, supra note 1, at 1. The City of Houston, which has jurisdiction OV~Ithe property,
has advised the University that it “will not enforce any deed restriction that purports to prohibit 01 even restrict the
[University’s] right to acquire and hold real property .” Letter from Anthony W. Hall Jr., City of Houston
Attorney, to Dr. Priscilla D. Slade, President, Texas Southern University (Mar. 4, 2003) (on tile with the Opinion
Committee); accord Lena from Arturo G. Michel, City of Houston Attorney, to Nancy Fuller, Chair, Opinion
Committee,Texas Attorney General’sOffice(received May 5,2004) (on tile with the Opinion Committee). In addition,
in February 2003 an attorney in the TransportationDivision of this office advised the University that the application of
deed restrictions against a governmental entity is “deemed contrary to public policy and void.” Memorandum from
Randall M. Ward, Senior Attorney, Transportation Division, Texas Attorney General’s Office, to Lynn Rodriguez,
General Counsel, Texas Southern University (Feb. 28,2003) (on tile with the Opinion Committee).
‘SeeDeclarationandPetitionForthe Modificationof, and Addition to, Restrictions for TIERWESTEROAKS,
attached to Request Letter, supra note 1.
Mr. J. Paul Johnson - Page 2 (GA-0249)
The University is a statewide general purpose institution of higher education located in the
city of Houston. See TEX. EDUC.CODEANN. $3 106.01-.02 (Vernon 2002). The University’s
governing body, the board of regents, see id. 5 106.11, may acquire, “by purchase, exchange, or
otherwise” (including by condemnation), any real property “necessary or convenient” to carry out
“the purposes of state-supported institutions of higher education”; the board also may lease any
University-owned land. Id. 5 106,35(a), (c). The proceeds from any lease of land “or other real
property” must be added to the University’s general funds. Id. 4 106.35(b).
Several judicial decisions conclude that deed restrictions and restrictive covenants do not
apply to a governmental entity, particularly one with authority to condemn, with respect to property
the governmental entity has acquired by purchase or condemnation. See Wynne v. City of Houston,
281 SW. 544, 544 (Tex. 1926) (per curiam) (concluding that no contract could restrict a
municipality’s authority to construct and maintain fire stations); Deep E. Tex. Reg ‘IMental Health
&MentalRetardation Sews. v. Kinnear, 877 S.W.2d 550,560 (Tex. App.-Beaumont 1994, no writ)
(concluding that restrictive covenants “must yield to the exercise of the state’s legitimate police
power”); P&fox v. Boyd, 400 S.W.2d 946, 949-50 (Tex. Civ. App.-El Paso 1966, no writ)
(concluding, based upon Wynne and other cases, that restrictive covenants cannot be applied against
agovemmental bodywithauthorityto condemn); CityofRiver Oaksv. Moore, 272 S.W,2d389,391
(Tex. Civ. App.-Fort Worth 1954, writ ref dn.r.e.) (concluding that deed restrictions are not binding
on the state or a subdivision thereof). Based on the holdings in these cases, we conclude that deed
restrictions do not apply to University-owned property in this situation.
We have found no authority indicating that the conclusion would be different because the
University-owned property is used for privatized student housing. The University has determined
that the housing, when constructed, “will serve a public purpose directly related to the performance
of the University’s duties and functions, specifically, to house students enrolled at the University.”
Request Letter, supra note 1, at 2. Presumably, lease payments the University receives from the
private entity controlling the housing will be deposited into the University’s general fund, in
accordance with section 106.35 of the Education Code, which requires lease proceeds to be added
to the University’s general funds. See TEX. EDUC.CODEANN. 5 106.35(b) (Vernon 2002).
A brief we have received raises numerous fact issues regarding the University’s use of the
property and the purported public purpose. Seegenerally Tierwester Civic Association Brief, supra
note 2. This office cannot resolve fact questions. See Tex. Att’y Gen. Op. No. GA-0156 (2004) at
10 (stating that fact questions cannot be answered in the opinion process). We assume, therefore,
that the University, as the requesting governmental body, has set forth a correct and complete version
of the facts. C$ Tex. Att’y Gen. ORD-609 (1992) at 5 (stating that, where this office may not
resolve fact issues under the Open Records Act as a matter of law or from the face of the documents,
we “must rely on the representations of the governmental body requesting our opinion”).
Mr. J. Paul Johnson - Page 3 (GA-0249)
SUMMARY
Deed restrictions do not apply to property owned by Texas
Southern University, which the University acquired bypurchase or by
condemnation and on which privatized student housing is being
constructed.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee