Untitled Texas Attorney General Opinion ( 1988 )

September 28, 1988
Mr. T. R. Fehrenbach Opinion No. JM-958
Chairman
Texas Antiquities Committee Re: Jurisdiction of the State
P. 0. BOX 12276 Antiquities Committee over
Austin, Texas 78711 property held by an indepen-
dent school district (RQ-1404)
Dear Mr. Fehrenbach:
On behalf of the Texas Antiquities Committee you
request advice on the authority of the committee to
designate school district buildings as state archeological
landmarks. Your questions arise because of legal challenges
to the committee's attempts to exercise its statutory
authority over school district property. See Texas
AnticfuitiesCommittee Dallas C untv Communitv Collese
District, 554 S.W.2d 9;; (Tex. 197;). We will review the
committee's statutory authority and relevant case law before
turning to your specific questions.
The committee is created by section 191.011 of the
Natural Resources Code, and its powers and duties are set
out in the Antiquities Code of Texas, sections 191.001
through 191.174 of that code. &R Nat. Res. Code § 191.001.
It "shall . . . determine the site of and designate land-
marks . . . as provided in Subchapter D" of chapter 191 of
the Natural Resources Code. Nat. Res. Code 5 191.051(b)(2).
Subchapter D provides that:
[slites, objects, buildings, artifacts,
implements, and locations of historical,
archeological, scientific, or educational
interest . . . 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 eligible for
designation.
Nat. Res. Code § 191.092(a). A structure or building has
P
historical interest if it:
p. 4855
,.
Mr. T. R. Fehrenbach - Page 2 (JM-958)
(1) was the site of an event that has
significance in the history of the United
States or the State of Texas:
(2) was significantly associated with the
life of a famous person:
(3) was significantly associated with an
eventthat symbolizes an important principle
or ideal:
(4) represents a distinctive architec-
tural type and has value as an example of a
period, style, or construction technique; or
(5) is important as part of the heritage
of a religious organization, ethnic group, or
local society.
Nat. Res. Code S 191.092(b).
Before the committee may designate a structure or
building as a state archeological landmark, it must be
listed on the National Register of Historic Places. Nat.
Res. Code 5 191.092(c); see 16 U.S.C. 5 470(a). The
committee is required to adopt rules establishing criteria
for such designations and must consider "any and all fiscal
impact on local political subdivisions" before it may
designate as a state archeological landmark a building or
structure owned by a political subdivision. Nat. Res. Code
f 191.092(d), (e).
Landmarks designated under section 191.092 of the code
"are the sole property of the State of Texas and may not be
removed, altered, damaged, [or] destroyed . . . without a
contract with or permit from the committee." & s 191.093.
This provision has been the focus of conflicts between the
committee's role in preserving the historical value of state
archeological landmarks owned by school districts, see
Attorney General Opinion JM-104 (1983), and the school
district's interest in using, altering, or replacing its
buildings to carry out its educational purposes.. &8 Texas
ittee v. Dallas County Communltv Collea
District, sunrq G Hoard of R cents lker Count:
Historical Com~zssron 608 S.W.2de 252 (zex.W:iv. APP. -
Houston [14th Dist.1'1980, no writ) (building located on
land administered by Board of Regents of the Texas State
University System).
--.
p. 4856
Mr. T. R. Fehrenbach - Page 3 (JM-958)
Texas Antiauitie
Collece District is t:e leadinTc&e on t:e authority 0: the
Antiouities Committee and some of vour o-uestions are
specifically based on it. In the palias Co&y case, the
Texas Supreme Court set aside an order of the Antiquities
Committee denying the Dallas County Community College
Distr~icta permit to demolish three buildings. The court
was divided on both the reasoning and result of this case.
An opinion of~four judges Nled in favor of the community
college district on the ground that a provision of the
Antiquities Code was both unconstitutional and unconstitu-
tionally applied, and that the permit denial was not
supported by substantial evidence. The chief justice
concurred on the basis of the substantial evidence rule and
declined to reach any constitutional question. Four judges
dissented.
The prevailing opinion of four judges determined that
former section 6 of article 6145-9, V.T.C.S., the prede-
cessor to section 191.092(a) of the Natural Resources Code,
was unconstitutionally vague and lacked sufficient standards
governing the delegation of legislative authority. The
predecessor statute declared buildings and locations of
historical, archeological, scientific, educational
interest located on lands of political sub%visions to be
State Archeological Landmarks. The Antiquities Committee
contended only that the Dallas buildings were "of his-
torical interest." Neither the statute nor any rule gave
this description more specificity or predictability, and the
law did not include the explicit standards necessary to
prevent arbitrary and discriminatory enforcement. 554
S.W.Zd 924, at 928.
The same opinion also found the Texas Antiquities Act,
formerly article 6145-9, V.T.C.S., unconstitutional as
applied to the community college buildings because no sub-
stantial evidence supported the action of the Antiquities
Committee. 554 S.W.2d 924, at 928. The evidence was such
that reasonable minds could not have reached the conclusion
that the committee must have reached. Restoration of the
buildings would require the diversion of public funds held
in trust to benefit people in the school district. In
addition, the buildings could not be restored except by
spending an unreasonable amount of money, and even costly
rebuilding would not make them usable for educational
purposes. 554 S.W.2d 924, at 929.
In answer to the argument of the Antiquities Committee
that a political subdivision has no contract or property
rights protectable against the committee#s powers, the
p. 4857
,,
Mr. T. R. Fehrenbach - Page 4 (JM-958)
opinion pointed out that a state agency could not divest
property and contract rights in violation of specific
constitutional provisions. Snr:&ove v. Citv of Dalla 40
S.W.Zd 20 (Tex. 1931); &ilam Cq&ntv v. BatemaD, 54 Tex.' 163
(1880).
We turn to your seven questions.
You first ask whether the committee's designation of a
public school building as a state archeological landmark
(SAL) would divert dedicated educational funds or property
to non-educational purposes in violation of article VII,
sections 3 and 6, of the Texas Constitution.
you ask as your second question whether the committee's
denial of a school district's request for a permit to
demolish a designated building would divert educational
funds or property to non-educational purposes in violation
of article VII, sections 3 and 6, of the Texas Constitution.
Article VII, section 3, of the constitution requires
that certain tax revenues shall be used to support the
llpublicfree schools." See Attorney General Opinion H-961
(1977). Article VII, section 6, provides that lands granted
to the counties for educational purposes are the property of
the counties, with title thereto vested in the counties.
The lands and proceeds generated by the sale thereof are to
be held by the counties "as a trust for the benefit of
public schools therein." See Attorney General Opinion
JM-729 (1987).
The prevailing opinion in Texas Antiouities Committee
V. Dallas Countv CommuDitv Collese District, in saying that
constitutional prohibitions would restrain one state agency
from divesting vested property and contract rights of
another agency of the state, cited and discussed Love v.
Citv of u, a, and Bilam Countv v. Bateman, szuEmr
cases relying. on article VII, sections 3 and 6, respec-
tively. In Wilam Countv v. BatemaD, the court stated that
the state may not arbitrarily take school land from the
county and give it to private parties. Milam Countv, 54
Tex. 163, at 166. In Love v. Citv of Dallas, the Supreme
Court found violative of article VII, section 3, legislation
which required a school district to use its funds to educate
persons who. did not reside in the district. The school
funds and properties were held in trust by the city, school
district, county, or other statutory agency to be used for
the benefit of the school children of the community and the
legislature could not devote them to any other purpose.
&yg, 40 S.W.Zd 20, at 26. Seem also Citv of El Paso v. El
p. 4858
Mr. T. R. Fehrenbach - Page 5 (JM-958)
P
tv Colleae District 729 S.W.2d 296 (Tex. 1986)
(providing that article VIII,' section l-g(b), of Texas
Constitution creates exception from article VII, section 3
prohibition against school tax funds being used for
non-educational purposes).
We turn to your first question. The designation of a
school building as an SAL serves to retain the status guo
and to subject the building to the committee's jurisdiction
and to the permit requirement in section 191.093 of the
Natural Resources Code. a Hoard of Reaents v. Walker
Countv Hiswcal oassion 608 S.W.2d 252 (Tex. Civ. App.
- Houston 114th D:st.] 1986, no writ): Attorney General
Opinion MW-378 (1981). Thus, it is certainly possible that
the designation of a building would not change the dis-
trict's use of dedicated educational funds or property. We
cannot, however, rule out the possibility that on the facts
of some cases the SAL designation will have the effect of
making such a diversion, for example, by requiring the
school to maintain a building that can no longer be used for
educational purposes.
The answer to your second question will depend on
the facts of the particular situation, and it cannot be
answered in an Attorney General Opinion. The court in
Texas
Colleae District; indicated that a constitutional question
would not have arisen if funds other than public school
money had been available. 554 S.W.2d 924, at 928. Moreover,
on the facts of that case, the buildings could not have been
made usable for educational purposes. Different facts
presumably could yield a different conclusion.
your third question is as follows:
Is the Committee's reading of the pBllas
County case correct in that where funds not
subject to the "public trust01are available,
the SAL designation and ownership of the
building's intrinsic value may not be
disturbed absent a showing of. unsuitability
for educational purposes?
The Antiquities Committee had not designated any of the
three buildings at issue in the Dallas County case as state
archeological landmarks. 554 S.W.Zd 924, at 926. Before
the Supreme Court issued its opinions in that case, this
office read the statute itself to designate certain
publicly-owned properties as state archeological landmarks.
See Attorney General Opinions H-620 (1975); H-250 (1974).
p. 4859
Mr. T. R. Fehrenbach - Page 6 (JM-958)
Since the mlas County case concerned the denial of a
demolition permit, we will answer your question in terms of
the committee's denying a permit to demolish a building.
We do not agree with your characterization of the
supreme court's decision. Five judges agreed that "this
particular determination of the Antiquities Committee is not
supported by substantial evidence." 554 S.W.Zd 924, at 931
(concurring opinion). This was the basis of the majority
decision. The committee acted arbitrarily and without a
sound basis with respect to the Dallas buildings, as shown
by the reasons set out in the first opinion. ;EBt In
addition to evidence on the issues you mention, the court
cited evidence that the buildings could be restored only by
complete reconstruction from the foundation up at a cost
greater than new construction and that the outside walls
might collapse if reconstruction were undertaken. Similar
evidence, as well as facts not before the court in the
Dalla C UntY could be relevant to other exercises of
the c&m~ttee~?s$mit power over SAL-designated school
district buildings. As this office stated in Attorney
General Opinion H-620 (1975), a site may be "of such slight
historic interest and of such little utility" that denial of
a permit would be an unreasonable and arbitrary exercise of
the committee's power. Whether other actions with respect
to school buildings are supported by substantial evidence
must be determined on a case-by-case basis by an adjudicator
with power to make fact-findings, and cannot be determined
in an attorney general opinion.
Your fourth gues~tionis as follows:
If the answer to one, two and/or three is
no, then to what extent, if any, may the
Committee constitutionally and statutorily
subject public school properties to its
jurisdiction?
To the extent that this question can be answered in the
abstract, it has been answered in the discussion preceding
your questions and the discussion of your first three
questions.
your fifth question is as follows:
If a public school district allows a SAL
designation of one of its properties, has the
school district waived its right to assert
the diversion principle in future proceedings
(A, demolition permit proceedings)?
p. 4860
Mr. T. R. Fehrenbach - Page 7 (JM-958)
The Antiquities Committee is subject to the Adminis-
trative Procedure and Texas Register Act, article 6252-13a,
V.T.C.S., and the Natural Resources Code, section
191.021(a). A %ontested case" under that Act includes a
proceeding in which an agency decides whether or not to
issue-~apermit. m V.T.C.S. 6252-13a, s 3(2), (3). Your
request letter in fact states that the committee deals with
requests for demolition of SALs as contested cases under the
Administrative Procedure and Texas Register Act. See also
Attorney General Opinion MW-378 (1981) (committee's decision
in permit application cases will be tested under the
substantial evidence rule). The Administrative Procedure
and Texas Register Act gives parties to a contested case
notice and an opportunity for hearing as well are a right to
judicial review after exhaustion of administrative remedies.
V.T.C.S. art. 6252-13a, 55 13, 19.
You next ask whether the committee's denial of a
demolition permit to a public school district constitutes an
unconstitutional taking of property without compensation.
Article I, section 17, of the Texas Constitution
provides in part:
No person's property shall be taken, damaged
or destroyed for or applied to public
use without adequate compensation being
made . . . .
In 2 Au t'n, 582
;.:.:d)2:9 (Tex. Civ? App. - Tylk '19795) writ ref'd,
. . - , a case involving zoning of a privately-owned hotel
as a historic landmark, the court held that the city imposed
a servitude on property when it restricted the owners from
reconstructing, altering, removing, or demolishing the
building without a permit. Since the city made no provision
for any compensation to the owners, the court held that
there had been a "damaging" of the property for public use
without adequate compensation in violation of article I,
section 17, of the constitution. ;EBLat 238. Thus, designa-
tion of private property as a state archeological landmark
or denial of a demolition permit for private property may
invoke the requirement for adequate compensation in article
I, section 17.
Article I, section 17, has generally been read,
however, as applying to~the taking, damaging, or destruction
of private property. See. e.a,, State v. Steck Co 236
S.W.2d 866, 869 (Tex. Civ. App. - Austin 1951, writ r;f*d).
Public property may be taken for another public use if there
p. 4861
,
Mr. T.~R. Fehrenbach - Page 8 (JM-958)
is express or implied legislative authority to do so, if the
additional public use will not materially interfere with the
existing use, or if the subsequent taking is for a public
purpose of greater importance which cannot be accomplished
in any other practical way. ustin Indeoendent School
pistrict v. Sierra Cl& 495 S.W.td 878 (Tex. 1973); Sn llen
224 S.W.Zd 305 (Tex. Civ. Ap;. -
writ ref'd n.r.e.). The committee has
statutory auth&ity to designate school buildings as SALs
and to grant or deny demolition permits to the school
district. If it exercises these powers in compliance with
all applicable.provisions of law, it will not damage or take
property without compensation in violation of article I,
section 17, of the Texas Constitution. Although it has been
argued as a policy matter that governmental bodies should
receive compensation when their property is taken, this view
has not been adopted *in Texas. &R J. M. Payne, Inter-
o vernmental Condemn ion as a Problem in Pub1ic Finance, 61
Tzx. Law Rev. 949 (1%3).
Your last question is as follows:
There being no regulatory standards
concerning the approval or denial of w
are the penal provisions. of the Code uncon'
stitutional on their face since the legisla-
ture has delegated discretionary authority in
this area without statutory standards?
Section 191.171 of the Natural Resources Code
establishes a criminal penalty for violations of the
provisions of chapter 191 of the code. It states in part:
(a) A person violating any of the
provisions of this chapter is guilty of a
misdemeanor, and on conviction shall be
punished by a fine of not less than $50 and
not more than $1,000, by confinement in jail
for not more than 30 days, or by both.
Nat. Res. Code § 191.171(a).
The Natural Resources Code provides that landmarks
established under section 191.091 of the code may not be
removed, altered, damaged, destroyed, salvaged, or excavated
without a contract with or permit from the committee. Nat.
Res. Code 8 191..~093.See also Nat. Res. Code 5 191.095.
The committee "shall . . . consider the requests for
and issue the permits provided for" in section 191.054 of
p. 4862
Mr. T. R. Fehrenbach - Page 9 (JM-958)
the Natural Resources Code. Nat. Res. Code 5 191.051(b)(4).
Section 191.054 provides in part:
(a) The committee may issue a permit to
other state agencies or political sub-
f:;A;ions or to qualified -private institu-
companies, or individuals, for the
surve; and discovery, excavation, demoli-
tion, or restoration of or the conduct of
scientific or educational studies at, in, or
on landmarks, or for the discovery of
eligible landmarks on public land fi it is
(b) Restoration shall be defined as any
rehabilitation of a landmark excepting normal
maintenance or alterations to nonpublic
interior spaces. (Emphasis added.)
Nat. Res. Code 5 191.054.
Violations of administrative rules and orders may be
punishable by a legislatively-established penalty. Dnited
States v. Gordon, 580 F.2d 827 (5th Cir. 1978); Harrincton
v. Rgilroad Co~&jssion 375 S.W.Zd 892 (Tex. 1964); Tuttle
V. Wood 35 S.W.2d 106i (Tex. Civ. App. - San Antonio 1931,
writ rei*d). Section 191.171 of the Natural Resources Code
establishes such a penalty.
An invalid administrative order may not, however, be
enforced by a criminal penalty. Your last question thus
raises the issue of whether section 191.054 is invalid
because it lacks regulatory standards concerning the
approval or denial of permits.
When the legislature delegates to an agency the
authority to adopt rules and orders, it must prescribe
adequate standards to guide the discretion it confers.
Antiouit;ies Couee v. Dal1 8 Countv Comm nitv
-District, i4ul2.a:
Ex 561 S.W.2dU 503
(Tex. Crim. App. 1978); Tex. Const. art. II: .q1; art. III,
s 1. The Antiquities Committee has been delegated legisla-
tive authority to grant permits, subject to the standard
that, in the opinion of the committee, the permit is in "the
best interest of the State of Texas." Nat. Res. Code
s 191.054. We must therefore determine whether the quoted
language provides a sufficient legislative standard to
control the committee's exercise of discretion and to guard
p. 4863
Mr. T. R. Fehrenbach - Page 10 (JM-958)
against arbitrary and unfair decisions on permit
applications.
The standard, "in the best interest of the State of
Texas," was included in the predecessor of section 191.054
when the Antiquities Code was adopted in 1969. Acts 1969,
61st Lag., 26 C.S., ch. 2, 5 10, at 101. As adopted, the
permit provision read in part as follows:
The Antiquities Committee shall
authorized to issue permits to other stat:
agencies or institutions and to qualified
private institutions, companies, or indivi-
duals for the takina. salvaainc. excavation,
restorina. or the conductinc of scientific or
educational studies at, in, or on State Arche-
ological Landmarks as in the opinion of the
Antiquities Committee would be &) the b t
kiterest of the State of Texas . (Rmpha%
added.)
XL 5 10.
This provision did not originally appear to contemplate
the alteration or demolition of a public building which had
been designated as a State Archeological Landmark. It was
more relevant to activities such as salvaging or restoration
that were consistent with the purpose of historical pre-
servation set out in the code:
It is the public policy and in the public
interest of the State of Texas to locate,
protect, and preserve all sites, objects,
buildings, pre-twentieth century shipwrecks,
and locations of historical, archeological,
educational, or scientific interest . . . .
Nat. Res. Code 5 191.002. Thus, in the context of the
original Antiquities Code, the cited standard could be read
together with the purpose clause to require the committee's
permit decisions to serve the state's best interest relative
to historical preservation. See. e.a S ate D D
z;zt;;,"', 409 So. 2d 53, 57 $a. :pp. 19:2:* (::
interest of the public" refers. to
. best
interest of'taxpayers of state): -cation of Pribil
N.W.2d 356, 358 (Neb. 1966) ("best interest" in &at:::
relating to land transfers between two school districts
means best educative interest).
p. 4864
Mr. T. R. Fehrenbach - Page 11 (JM-958)
Moreover, the adoption of the Antiquities Code was
precipitated by the state's efforts to reclaim 16th century
artifacts removed by a salvage company from a Spanish
galleon which sank off the shore of Texas. Comment, !f&
exas Ant ties Code.. An
*%&text, 24 SW. L.9
Criteria for D``&D&&D I 11 St. Mary's
76 (1979). -See Platoro. Ltd. v. Unidentified
of a Vessel Supp. 351 (S.D. Tex. 1970),~
m. 371 F. Supp. Tex. 1973), rev d on other
m, 508 F.2d 1113 (5th Cir. 1975) (PlatoLo I) The
emergency clause of the bill adopting the code stated in
pa*:
The fact that irreparable damage and harm is
rapidly being done to the archeological and
historical heritage of the State of Texas and
its citizens, and that historical and
archeological sites, and treasures on public
lands are without adequate legal protection
and supervision and are being destroyed and
damaged without lawful authority, create an
emergency . . . .
Acts 1969, 61st Leg. 2d C.S., ch. 2, 5 23, at 103.
Thus, the nbest interest" standard was adopted by a
legislature anxious to stop private interests from damaging
the state's archeological and historical resources and
imposed a duty on the committee to make permit decisions
that would serve the state's interests in such resources.
These circumstances also support the conclusion that the
committees should make permit decisions that would serve the
state's interests in such resources.
The "best interest" language has not changed, while
other provisions of the Antiquities Code have been amended
to acknowledge that other important public interests exist
in the governmental functions carried out by political
subdivisions. .The committee must now consider "any and all
fiscal impact" on a local political subdivision before
designating a building or structure which it owns as a state
archeological landmark. Nat. Res. Code 5 191.092(e). See
m Nat. Res. Code 5 191.021(b) (procedure for considering
educational purpose of higher education buildings in SAL
designation). Moreover, now that section 191.054 expressly
authorizes the committee to issue a demolition permit for a
building previously designated as a state archeological
landmark, the committee presumably has a duty to consider
the applicantts reasons why such a building should be
p. 4865
Mr. T. R. Fehrenbach - Page 12 (JM-958)
-,
demolished and not preserved. The "best interest" standard,
as originally understood, provides the committee little
guidance when it has to reconcile the state's interest in
historical preservation with a political subdivision's
competing interest in controlling the use of its real
property to carry out its own legislatively-imposed
responsibilities.
In Taxas Antwties Coattee v. Dallas Countv Com-
mnltv Colleae District the prevailing opinion of the
supreme court included the following discussion of standards
that should accompany the legislature's delegations of
powers to state agencies:
Depending upon the nature of the power, the
agency, and the subject matter, varying
degrees of specific standards have been
required in testing the reasonable breadth of
statutes. 1 Sutherland, Statutory Construc-
tion, 5 4.05 (4th ed. 1975); &R&n v. State
Board f Insurance, 160 Tex. 506, 334 S.W.Zd
278 $60). Sound reasons support the rule
that some reasonable standard is essential to
the constitutionality of statutory
delegations of powers to state boards and
commissions.
[Quotation from EIgvned v. Citv of
Roc;rf, 408 U.S. 104, 108-09 (1972)I
deleted.]
We adhere to the settled principle that
statutory delegations of power may not be
accomplished by language so broad and vague
that persons *of common intelligence must
necessarily guess at its meaning and differ
as to its application.'
554 S.W.Zd at 927-28. The same opinion of the court
considered the argument that administrative standards in the
form of published rules could be substituted for statutory
standards. 554 S.W.Zd at 928 [discussing Davis, Administra-
tive Law Treatise, 5 2.16 (1st ed. 1970)]. The opinion
stated that in the present case no standard or criteria by
statute or rule provided safeguards for the affected
parties.
As the Antiquities Code has been amended to deal with
the legal questions that arose in the Dallas County case,
the legislative intent underlying the code has changed to
P. 4866
Mr. T. R. Fehrenbach - Page 13 (JM-958)
acknowledge that public interests other than historical
preservation may be relevant in particular permit applica-
tion cases. The "best interest" standard is stated in
language broad enough to incorporate the modifications in
the legislative intent brought about by amendments to the
Antiquities Code. m -tina v. Texas State Board f
Medical EXB ' S 310 S.W.2d 557 (Tex. 1958) (amendment a:d
old law must be C&&Ned as harmonious whole). Relying on
the argument raised in the Uas Countv case, we be;::;:
the committee may adopt rules which amplify the
interest" standard to give weight to the public interest of
political subdivisions in controlling their resources as
necessary to perform their constitutionally and legisla-
tively imposed duties. The “best interest of the State of
Texas" in a particular case could reasonably be an interest
arrived at by weighing the public interest in preserving
archeological resources against other important public
interests seNed by the governmental entities which have
custody of archeological resources.
Accordingly, we do not believe that section 191.054
must fall for lack of regulatory standards or that
prosecutions under section 191.174 for violation of the
permit requirements are impermissible. Whether any permit
denial is a valid agency action and whether any individual
is guilty of a violation under section 191.174 must be
determined on a case-by-case basis in an appropriate forum.
SUMMARY
Designation by the State Antiquities Com-
mittee of a school building as a state archeo-
logical landmark could divert dedicated
education funds or property to non-educational
purposes in violation of article VII, sections
3 and 6, of the Texas Constitution, depending
on the facts of the particular case. Whether
the committee's denial of a school district's
request for a permit to demolish a designated
building would cause such a diversion of
educational resources would have to be decided
on a case-by-case basis, considering the facts
of each particular situation, and subject to
review by the courts for substantial evidence
to support the committee8s decision. The
committee's decisions in permit application
cases are contested cases under the Adminis-
tration Procedure and Texas Register Act and
the applicants for permits have a right under
p. 4867
Mr. T. R. Fehrenbach - Page 14 (JM-958)
that statute for judicial review of the
committee's decision.
The committee's denial of a demolition
permit to a school district does not consti-
tute an unconstitutional taking of property
without compensation in violation of article
I, section 17, of the Texas Constitution.
Section 191.054 of the Natural Resources
Code, which authorizes the committee to issue
a demolition permit for state archeological
landmarks if "it is the opinion of the com-
mittee #at the permit is in the best interest
of the State of Texas," is not invalid for
lack of standards to guide the committee's
exercise of delegated legislative power. The
"best interest" standard may be made more
specific by reading it in reference to other
provisions of the Antiquities Code which
evidence the legislature's intent for exercise
of the committee's permit power.
JIM MATTOX
Attorney General of Texas
MARYRELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 4868