Untitled Texas Attorney General Opinion ( 1983 )

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The Attorney General of Texas
March 10, 1983
JIM MAlTOX
Attorney General
Mr. Leonard IL.0. Sueerman Opinion No. JM-8
Supreme Court Building President
P. 0. BOX 1254B Texes Southern University Re: Whether Texas Southern
Austin. TX.‘.78711- 2546 Eouston. Texas 77004 University must pay a claim
51214752501
under the Texas Relocation
Telex 9wa7c1367
Telecopier 512l4750286
Assistance Program established
by article 3266b. V.T.C.S.
1607 Main Sl.. Suite luxl Dear Mr. Speerman:
Dallas. TX. 75201”t704
214/74Z.B944
In your recent request for an opinion you asked the following
questions:
4824 Alberta Ave.. Suite 180
El Paso. TX. 79905.2793 1. Whether the Texas Relocation Assistance
Fw33.3484
Program, article 3266b, V.T;C.S.. applies to
institutions of higher education.
1220 Dallas Ave.. Suite 202
Housto”. TX. 770026998 2a. Whether Texes Southern University is
7 1365w666
obligated to reimburse the owners of property it
acquires for the cost of closing and moving
IN6 Broadway. Suite 312 expenses under article 3266b. V.T.C.S.
Lubbock. TX. 79401.3479
8081747.5238 b. Whether payment of one claim would require
payment to all potential claimants.
4309 N. Tent!!. Suite B
McAllen. TX. 78501.1595 3. Whether such payments are subject to any
512i662.4547 limitation on their amounts.
Article 3266b. V.T.C.S.. provides in pertinent pert:
200 Main Plaza. Suite 400
San Antonio. TX. 792052797
5121225.4191 Section 1. When in the acquisition of real
property for a program or project undertaken by
any department, agency, or instrumentality of this
An Equal Opportunityl
State or of a political subdivision of this State
Affirmative Action Employer
it becomes necessary that any individual, family,
property of e business concern. farm or ranch
operation, or nonprofit organization be displaced,
they may be paid their moving expenses and
relocation paymants, provided financial assistance
/- to acquire replacement housing, or allowed rental
supplements and compensation for expenses
p. 30
Mr. Leonard H. 0. Spear-man- Page 2 (JM-8)
incidental to the transfer of property to the
State, all of which payments or expenditures are
hereby declared to be an expense and cost of such
property acquisition. Each department. agency, or
instrumentality of this State or of a political
subdivision of this State shall formulate the
rules and regulations necessary to carry out the
provisions of this section and shall not authorize
payments or expenditures in excess of those
authorized by or under the Federal Uniform
Relocation Assistance of Real Property Acquisition
Policies Program.
....
Sec. 2. Each department, agency or instrumen-
tality of this State or of a politicel subdivision
of this State may provide a relocation advisory
service for all individuals, families, business
concerns. farm and ranch operations, and non
profit organizations which shsll be compatible
with the Federal Uniform Relocation Assistance
Advisory program.
The language of article 3266b makes it applicable to "any department. ?
agency. or instrumentality of the State or of a political subdivision
of the State," and institutions of higher education are agencies of
the state. See Attorney General Opinions H-1116 (1978); R-365 (1974).
Texas South= University is an institution of higher education.
Educ. Code 561.003(3), (4). (7). Therefore, it is subject to article
3266b.
The question of whether or not Texas Southern University is
obligated to make payments under article 3266b to owners of property
acquired by the university for the purpose of expanding its campus
facilities depends on whether the provisions of article 3266b are
mandatory or permissive in nature. Section 1 of article 3266b
provides that persons whose property is acquired under those
circumstances to which the statute is made applicable "may be paid"
their moving and other specified expenses. Although the word "may" is
sometimes construed se if it were "shell," It is ordinarily used as a
word of permission, end, before treating it as a word of command,
there should be something either in the subject matter or the context
to indicate an intention that it be employed in that sense. San
Angelo National Bank v. Fitzpatrick, 30 S.W. 1053. 1054 (Tex. 1895).
To place article 3266b in context requires an examination of the
history of relocation assistance legislation.
p. 31
Mr. Leonard H. 0. Spearman - Page 3 (Jh-8)
The Federal Highway Relocation Assistance Act (formerly 23
U.S.C.. sections 501 thru 512) was enacted August 23, 1968, by Public
Law 90-495. 82 Stat. 830-34. Public Law 90-495 provided in pertinent
part:
Section 502. Assurances of adequate relocation
assistance program.
The Secretary shell not approve any project
under section 106 or section 117 of this title
which will cause the displacement of any person,
business, or farm operation unless he receives
satisfactory assurances from the State highway
department that --
(1) fair and reasonable relocation and other
payments shall be afforded to displaced persons in
accordance with sections 505. 506, and 507 of this
title;
(2) relocation assistance programs offering
the services described in section 508 of this
title shall be afforded to displaced persons.
In its original form, article 3266b was enacted by the Sixty-first
Legislature as article 6674n-4. Acts 1969, 61st Leg., ch. 45, at 133.
The original enactment, while substantially similar to the present
statute, referred only to the acquisition of rights of way for stste
highWayS. Article 6674n-4 provided in pertinent part:
Section 1. When in the acquisition of right of
the way for any highway designated by the State
Highway Coxsaission as part of the State Highway
System it becomes necessary that any individual,
family, property of a business concern, farm or
ranch operation or non-profit organization be
displaced they may be paid their moving expenses,
relocation payments, be provided financial
assistance to acquire replacement housing, or
allowed rental supplements and compensated for
expenses incidental to the transfer of property to
the state all of which payments or expenditures
are hereby declared to be an expense and cost of
right of way acquisition. The State Highway
Commission shall formulate the rules and
regulations necessary to carry out the provisions
of this section and shall not authorize payments
or expenditures in excess of those authorized by
the Federal Highway Relocation Assistance program.
p. 32
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Mr. Leonard H. 0. Spearman - Page 4 \JM-6)
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Sec. 2. The State Highway Cosaaissioa Shall
provide a relocation advisory service for all
individuals, families, business concerns, farm and
ranch, operations, and non-profit organitations
which shall be compatible with the Federal Highway
Relocation Advisory program.
It is cl.ear from the structure of article 6674n-4, its repeated
reference to the Federal Highway Relocation Assistance Program and the
time of its enactment, that it was passed as enabling legislation to
permit the State Highway Department to comply with the requirements of
the Federal Highway Relocation Assistance Act in acquiring rights of
way for its federally-funded projects.
The Uniform Relocation Assistsnce and Real Property Acquisition
Policies Act of 1970, 42 U.S.C.. sections 4601-4655, was enacted by
Public Law 91-646. 84 Stat. 1894, and took effect January 2. 1971.
This statute was patterned after the Federal Highway Relocation
Assistance Act of 1968. above, and expanded its coverage to include
all federally funded projects requiring acquisition of real property.
Like the Federal Highway Relocation Assistance Act of 1968, the
Uniform Relocation Assistance and Reel Property Acquisition Policies
Act of 1970 made the paymsnt of relocation assistance mandatory for
federally funded projects.
Article 6674n-4, V.T.C.S., was amended by the Sixty-second
Legislature, effective August 30, 1971. to expand its coverage to
include all departments, agencies, or instrumentalities of the state
of Texas or any of its political subdivisions. Acts 1971, 62d Leg.,
ch. 918. at 2817.
These provisions were recodified in 1973, as the present article
3266b. V.T.C.S., quoted previously. Acts 1973. 63d Leg., ch. 586, at
1625.
The practical effect of the amendments leading to the present
article 3266b. following as they did the enactment of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of
1970, was to expand the coverage of .article 3266b to include all
agencies, instrumentelities, and political subdivisions of the state,
pursuant to the expansion in the scope of the Federal Relocation
Assistance Program. This expansion was required for the same reason
that the passage of the original article 6674n-4 was required, that
IS. in order to enable the affected agencies to comply with the
mandatory requirements of federal relocation assistance legislation.
The provision that displaced persons "may be paid" relocation
assistance payments has remained a feature of all enactments on this
subject commencing with article 6674n-4 and continuing to the present
article 3266b. This is consistent with the legislature's evident
p. 33
Mr. Leonard H. 0. Spearman - Page 5 (Jh-8)
L,
purpose of permitting state agencies receiving federal funds for
programs which would require acquisition of real property to comply
with federal requirements for such funding. It is reasonable to
suppose that.an intention on the part of the legislature to command
the state and its agencies and subdivisions to pay very extensive
relocation assistance benefits, in all csses, would have been
manifested by a change from the permissive language of these enabling
acts to some form of mandatory language.
It is clear that there is nothing in the subject matter or
context of article 3266b to indicate that the word "may" was used in
other than the permissive sense in which it is normally understood.
The answer to your question 2a. then, is that article 3266b is
not a mandatory provision and does not in its own terms obligate Texas
Southern University to pay relocation assistance to owners of property
acquired for the purpose of expanding its campus.
In answer to your question 2b. should Texas Southern University
elect to make relocation assistance payments, or be required to do so
by federal law. such payments would have to be made in full compliance
with the provisions of article 3266b. including that article's
provisions concerning rule-making. If the university establishes a
relocation advisory program either electively or in order to comply
with federal law, it is consistent with the Federal Uniform Relocation
Advisory Program. The university would then be required to make
payments to all persons determined to be eligible under the rules thus
established.
Under terms of article 3266b. agencies making relocation
assistance payments are expressly forbidden to "authorize payments or
expenditures in excess of those authorized by or under the Federal
Uniform Relocation Assistance and Real Property Acquisition Policies
Program." In answer to your third question. then, the limit for any
relocation assistance payment made under any such program in which
Texas Southern University may elect to involve itself will be
determined by consulting the provisions of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, cited
previously, with respect to the particular type of payment to be made.
SUMMARY
Article 3266b, V.T.C.S.. is by its terms
applicable to institutions of higher learning.
Article 3266b. V.T.C.S., is permissive and not
mandatory in nature and does not of its own force
obligate any department, agency, instrumentality,
or political subdivision of the state to make
relocation assistance payments or to provide
p. 34
Mr. Leonard 8. 0. Spearman - Page 6 (JM-8) :
relocation advisory services in connection with
its acquisition of real property. Should a
department, agency. instrumantality, or politicel
subdivision of the state elect to make relocation
assistance payments and provide relocetion
advisory services under article 3266b, or should
it be required to do so by federal law, such
payments should be made uniformly to all persons
determined to be eligible under the rules required
to be made under article 3266b. The limits for
relocation assistance payments to be made under
article 3266b have been set by the legislature by
reference to the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970. 42
U.S.C., sections 4601-4655, and may be determined
in each case by reference to the specific
provisions of that act.
-Jz#&
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by William T. Palmer
Assistant Attorney Ganeral
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Willism T. Palmer
p. 35