Untitled Texas Attorney General Opinion ( 1972 )

GENERAL
AUSTIN. - 78711
February 1. 1972
Honorable James U. Cross Opinion No. M- 1’061
Executive Director
Texas Parks 81 Wildlife Dept.
John H. Reagan Building Re: Several questions relating to
Austin, Texas 78701 authority‘of the Texas Pa&s &
Wildlife Department to act
pursuant to the “Uniform Re-
location Assietance and Real
Property Acquisition Policies
Act of 1970” (Public Law 91-
646; 84 Stat. 1894) relative to
acquisition projects where
Federal matching funds are
Dear Mr. Cross: requested.
In your recent request for an opinion you ask the following questions:
“1. Does the Parks and Wildlife Department
under present state law have the authority to
make or accept payments for relocation
assistance costs required by Section 210 of
Public Law 91-646 for state acquisition
projects for new state parks and/or wildlife
management areas or fish hatcheries prior te
July 1, 19727
“2. Does the Parks and Wildlife Department
under present state law have the authurrty to
make or accept payments for relocation assis-
tance costs required by Section 210 of Public
Law 9G646 for state acquisition projects for new
state parks and/or wildlife management areas or
fish hatcheries after July 1, 19727
“3. DoCounties. Cities, Water Authorities or
Water Districts who are authorized to acquire
-5178-
.
Honorable Jamer U. Crorr, page 2 (M-1061)
and develop park facilities under present state
law have authority to make or accept payments
for relocation assistance costs required by Section
210 of Public Law 91-646 for 1ocaI parka projects
so as to quallfy for Bureau of Outdoor Recreation,
Land and Water Conservation funds as administered
by the Parks and Wildlife Department prior to
July 1, 19727
“4. Do Counties, CLUes, Water Authorities or
Water Districts who are authorized to acquire and
develop park facilities under present state law
have authority to make or accept payments for
relocation assistance costs required by Section
210 of Public Law 91-646 for local parks project
so as to qualify for Bureau of Outdoor Recreation,
J-and and Water Conservation funds as administered
by the Parks and Wildlife Department after July 1,
19727
“5. Does the Parks and Wildlife Department under
present law have authority to comply witk%lx?pro-
visions of Section 301 through Section 305 of Public
Law 91-642 [sic. 91-64617
“6. ln the event you fii that the Department has
the authority to pay relocation assistance costs,
what specific State funds may be used for the
payment?”
The “Uniform Relocation Assistance and Real Property Acquisition
Act of 1970” (Public Law 91-646; 84. Stat. 1894, 23 U.S. C. A. 501 et.
seq.) 1 (hereinafter referred to as the Federal Act) requires the State,
in order to qualify for Federal financial assistance to pay all or part of
the cost of any program or project, to give satisfactory assurance to
c the Federal Government that:
“Sec. 210. Notwithstanding any other law, the
heed of a Federal agency shall not approve any
grant to, or contract or agreement with, a State
agency, under which Federal fina.nc@l ‘assistance
* See.also, ‘Ynterim~,Regulations and Procedur.es for hnpl,ementing the
Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970” Federal Register, Vol. 36, No. 74, Friday, Apr. 16, 1971.
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Honorable James U. Cross, page 3 (M-1061)
will be available to pay all or part of the costs
of any program or project which will result in
the displacement of any person on or after the
effective date of this title, unless he receives
satisfactory assurances from such State agency
that --;,
“(1.) fair and reasonable relocation payments and
assistance shall be provided to or for displaced
persons, as are required to he provided by a
Federal agency under sections 202. 203, and 204
of this title;
“(2) relocation assistance programs offering the
services described in section 20.5 shall be pro-
vided to such displaced persons;
“(3) within a. reasonable period of time prior to
displacement, decent, safe, and sanitary replace-
ment dwellings will be available to displaced
persons in accordance with section 20.5(c) (3). ”
The relocation payments and assistance referred to in Section 210
are summarized below:
Section 202 provides for moving and related expenses, as follows:
“(1) actual reasonable expenses In moving himself,
his family, busirress, farm operation, or other
personal property;
“(2) actual direct losses of tangible personal
property as a result of moving or discontinuing
a business or farm operation, but not to exceed
an amount equal to the reasonable expanses that
would have been required to relocate such prop-
erty, as determined by the head of the agency; and
“(3) actual reasonable expenses in searching for
a replacement business or farm.~
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Honorable James U. Cross, page 4 (M-1061)
“(b) Any displaced person eligible for pay-
ments under subsection (a) of this section who is
displaced from a dwelling and who elects to accept
the payments authorized by this subsection In lieu
of the payments authorized by subsection (a) of this
section may receive a moving expense allowance,
determined according to a schedule established
by the head of the Federal agency, not to exceed
$300; and a dislocation allowance of $200.
“(c) Any displaced person eligible for pay-
ments under subsection (a) of this section who is
displaced from his place of business or from his
farm operation and who elects to accept the pay-
ment authorized by this subsection tn lieu of the
payment authorized by subsection (a) of this section,
may receive a fixed payment in an amount equal to
the average annual net earnings of the business or
farm operation, except that such payment shall be
not less than $2,500 nor more than $10,000. In
the case of a business no payment shall be made
under this subsection unless the head of the Federal
agency is satisfied that the business (1) cannot
be relocated without a substantial loss of its exist-
ing patronage, and (2) is not a part of a commercial
enterprise having at least one other establishment
not being acquired by the United States, which is
engaged in the same or similar business. . . . ”
Section 203 provides for replacement housing for homeowners as
fdlows:
“(a) (1) In addition to payments otherwise
authorized by this title; the head of the Federal
agency shall make an additional payment not
in excess of $15,000 to any displaced person
who is displaced from a dwelling actually owned
and occupied by such displaced person for not
less than one hundred and eighty days prior to
the initiation of negotiations for the acquisition
of the property. . . . ”
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Honorable James U. Cross, page 5 (M-1061)
Section 204 provides for replacement housing for tenants and certain
others, as follows:
“(1) the amount necessary to enable such displaced
person to lease or rent for a period not to exceed
four years, a decent, safe, and sanitary dwelling
of standards adequate to accommodate such person
in areas not generally less desirable in regard to
public utilities and public and commercial facili-
ties, and reasonably accessible to his place of
employment, but not to exceed $4,000, or
“(2) the amount necessary to enable such person
to make a downpayment (including incidentaI
expenses described in section 203 (a) (1) (C) on
the purchase of a decent, safe, and sanitary
dwelling of standards adequate to accommodate
such person in areas na generally less desirable
in regard to public utilities and public and com-
mercial facilities, but not to exceed $4,000,
except that if such amount exceeds $2, Ooo, such
person must equally match any such amount in
excess of $2,000, in making the downpayment. ”
Section 205 provides for relocation assistance advisory services,
as follows:
“(c) Each relocation as.sistance advisory
program required by subsection (a) of this
section shall include such measures, faclli-
ties, or services as may be necessary or
appropriate in or&r to --
“(1) determine the need, if any of displaced
persons, for relocation assistance;
“(2) provide current and continuting infor -
mation on the availability, prices, and rentals,
of comparable decent, safe, and sanitary sales
and rental housing, and of comparable commer-
cial properties and locations for displaced
businesses;
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Honorable James U. Cross, Rage 6 (M-1061)
“(3) assure that, within a reasonable period
of time, prior to displacement there will be
available in areas not generally less desirable
in regard to public utilities and public and com-
mercial facilities and at rents or prices within
the financial means of the families and individuals
displaced, de,cent, safe, and sanitary dwellings,
as defined by such Federal agency head, equal
in number to the number of and available to such
displaced persons who require such dwellings
and reasonably accessible to their places of
employment, except that the head of that Federal
agency may prescribe by regulation situations
when such assurances may be waived;
“(4) assist a displaced person from his
business or farm operation in obtaining and be-
coming established in a suitable replacement
location:
“(5) supply information concerning Federal
and State housing programs, disaster loan pro-
grams, and other Fede.ral or State programs
offering assistance to displaced persons; and
“(6) provide other advisory services to dis-
placed persons in order to minimize hardships
to such persons in adjusting to relocatkn. ”
Your attention is directed to Senate Bfll 521, Acts 62nd Legislature,
Regular Session, 1971, which amended Article 6674n-4. Vernon’s Civil
Statutes, to read:
“Sec. 1. When in the acquisition of real
property for a program or project undertakea
by any department, agency, or instrumentality
of this State or of a political subdivision of this
State it becomes necessary that any individual,
family, property of a bus_iness concern, farm or
ranch operation, or nonprofit organization be
displaced they may be paid their moving expenses,
relocation payments, be provided financial assistance
to acquire replacement housing, or allowed
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. .
Honorable James 0. Cross, page 7 (M-1061)
: .’ .~
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 such property
acquisition. Each department, agency, or instru-
mentality of this State or of a political subdivision
of this State shall formulate’the rules and regula-
tions 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 Assis-
tance and Real Property Acquisition Policies
program.
“Sec. 2. Each department, agency, or instru-
mentality of this State or of a political 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 shall be compatible
with the Federal Uniform Relocation Assistance
Advisory program.
“Sec. 3. The Comptroller of Public Accounts
is hereby authorized to issue a State warrant on
the appropriate account of each State department
or agency for all relocation costs and the costs
of administering the relocation assistance program. ”
Expenditure of public monies for the purposes stated in this
Article is for a public purpose. Davis v. City of Lubbock, 160 Tex.
38, 326 S.W.2d 699 (1959); Atty. Cen. Cpin. Nos. C-536(1%5) and
M-782 (1971).
The above statute is the enabling statute which the Texas Legisla-
ture passed in order that the various departments of the State would be
able to comply with the Federal Act. It should be noted that nothing
in the Federal Act is intended to change State laws regarding the amount
of damages or the value of property in condemnation proceedings. This
is the interpretation of the Economic Development Administration of
the U. S. Department of Commerce, charged with the administration
and enforcement of the Act.
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Honorable James U. Cross, page 8 (M-1061)
Relocation assistance costs, when authorized by the Legislature,
have been upheld as constitutional and do not necessarily amount to a
gift or loan of credit of the State or as a release of an obligation of
individuals, or as an appropriation for private or individual purposes.
See State v. City of Austin, 331 S.W.2d 737 (Tex. Sup. 1960).
Senate Bill 521, supra, authorizes “any department, agency,
or instrumentality of this State or of a political subdivision of this
State” to expend funds necessary to carry out the provisions of the
Federal Act. We are here concerned only with the power of the State
in the acquisition of property by purchase as distinguished from
condemnation. Generally, the State is held to have the same rights
and powers in respect of such acquisition of property as an individual.
It may acquire real or personal property by conveyance or otherwise
and hold or dispose of it or apply it to any purpose as the State sees
fit. 52 Tex. Jur. 2d 737, State of Texas, Section 27, and cases cited.
Therefore, Questions 1, 2, 3, and 4 are answered in the affirmative.
We now consider your Question 5. Article 6081r, Vernon’s
Civil Statutes, reads as follows:
“Section 1. The Parks and Wildlife Department
of the State of Texas is hereby designated as
the State Agency to c=perate with the Federal
bvemment in the administration of the provi-
sions of any federal assistance programs for
Ihe planning, acquisition, operation, and devel-
opment of the outdoor recreation resources of
the state, including the acquisition of lands
and waters and interests therein, and specifically
to cooperate with the Federal Government in the
administration of the provisions of the ‘Land and
Water Conservation Fund Act of 1%5’ (Public
Law 88-578) effective January 1, 1%5, and any
amendments which may be added thereto from
time to time, in the event no other State Agency
is by law designated to cooperate with the
Federal Government in the administration of
the provisions of such Act or other Acts which
may be hereafter enacted by the Congress. ”
(Emphasis added. )
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Honorable James U. Cross; pge 9 (M-1061)
Sec. 304 (a) of the Federal Act provides that a land owner may
be reimbursed:
!I
. . . for his reasonable costs, disbursements,
and expenses, including reasonable attorney,
appraisal and engineering fees, actually incurred
because of the condemnation proceedings, if:
“(1) the final judgment is that the Federal
agency cannot acquire the real property by con-
denmation; or,
“(2) the proceeding is abandoned by the
United States. ”
Our opinion is that Article 3265 provides for payment of the same ex-
penses or items wherein it provides that where a plaintiff
. . ..desires to dismiss, abandon the proceedings,
or refuse the jury verdict. returned by the jury
or by a court prior to entry of judgment, said
plaintiff shall by motion be heard thereon, and the
court hearing the same may as part of ths terms
of granting such motion, make an allowance to
the landowner for reimbursement of his reasonable
attorneys’ and appraisers’ fees, shown to have been
incurred, and reimbursement for ,a11 necessary
expenses incurred by the filing and hearing of such
condemnation case to date of such hearing on said
motion; . . . ”
Furthermore, in enacting Article 6674n-4, supra, the Legislative
intent appears clear that it was contemplated that the State and its instru-
mentalities were to provide a program “compatible with the Federal
Uniform Relocation Assistance and Real Property Policies Program. ”
In this connection, it authorized the State, in the acquisition of real
property for a program or project, to compensate the displaced owner
for various expenses to him. These include:
“moving expenses, relocation payments, . . .
financial assistance to acquire replacement
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. .
Honorable James U. Cross, page 10 (M-1061)
housing, or allowed rental supplements and com-
pensated for expenses incidental to the transfer
of property to the State all of which payments
or expenditures are hereby declared to bs an
expense and cost of such property acquisition. ”
Question No. 5 particularly inquires whether or not the Parks
and Wildlife Department has present authority to comply with the
provisions of Section 301 through Section 305 of Public Law 91-642
(sic 91-646). These sections are codified as 42 U.S. C. 4651 through
4655. The requirements of the federal law are of two types; mandatory
and non-mandatory. Certain of the non-mandatory policies enumerated
in 42 U.S. C. 4651 and 4652 present very serious questions concerning
their permissibility under state law. In particular we point to 42 U.S. C.
4651 (9) which provides a policy for the acquisition of uneconomic
remnants and 42 U.S. C. 4652(b) (1) and (2) which provide a policy for
the appraisal and purchase of buildings owned by a tenant. You have
stated that the question raised by 42 U.S. C. 4651 (9) is not posed for
opinion because you do not anticipate the circumstance of acquiring
an uneconomic remnant. For that reason we express no opinion con-
cerning this. Because we do not consider it necessary in order to
answer your question five, we expres.s no opinion on the problem pre-
sented by 42 U.S. C. 4652.
It is enough that we can assure you that you may comply with the
provisions of 42 U.S. C. 4653 and 4654 (Sections 303 and 304) which are
the mandatory provisions of the federal act, and that we can assure you
that “to the greatest extent practicable under state law” you may be
guided by the land acquisition policies in 42 U.S. C. 4651 and 4652
(Section 301 and 302). That you may comply with the mandatory re-
quirements, and may comply “to the greatest extent practicable under
state law” with the non-mandatory requirements is sufficient to enable
you to comply with 42 U.S. C. 4655 (Section 305). If it is necessary
to define in particular circumstances what is “the greatest extent
practicable under state law,” we will advise you as necessary in the
context of particular situations.
Our conclusion is that the obligation for uniform payments and
services under Section 304 of the Federal Act can be met by the State.
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Honorable James U. Cross, page 11 (M-1061)
Reimbursement to such owner for his reasonable costs, disbursements
and expenses, including reasonable attorney, appraisal and engineering
fees, actually incurred because of the condemnation proceedings can
be paid if the final judgment is that the federal or state agency cannot
acquire the real property by condemnation, or the proceeding is
abandoned by the United States or state, or the plaintiff, in an inverse
condemnation action, shall receive a judgment or settlement in his
favor.
We also observe that under Section 213 (b) of the Federal Act,
the State is empowered, through promulgation of appropriate rules and
regulations by the state agency concerned to give assurance that a
displaced person will be paid promptly and that any person aggrieved
by a determination as to eligibility for a payment authorized by the
Uniform Act may have his application reviewed by the head of the
federal or state agency having authority over the applicable program
or project.
We are not here concerned with whether the expenditures will
require the approval of the Governor in order to consummate such
transactions. Nor are we concerned with the limit of the expenditures
as may or may not be involved in the rider to the current Parks and
Wildlife Department Appropriation. See the General Appropriation
Bill, Article Ill, p, 113, et seq. We also note that where there is a
lack of statutory authority to negotiate an agreement with the United
States, Article IV, Section 10, Constitution of Texas, authorizes the
Governor to approve a state agency agreement so as to become a
binding contract. See Attorney General Cptnion No. M-312 (1%8).
In answer to your sixth and last question concerning what
specific State funds may be used to pay.the relocation assistance costs,
you are advised that any of tbs specific state funds listed tn your
request may he used for the uses and purposes as set out in the
statutes or Appropriation Bill authorizing the same.
The General Revenue Fund is available and is covered by the
specific appropriation in the current Appropriations Bill, Item 10,
Article Ill, page 106, which may he used for the acquisition and
development of certain sites for parks improvements. State Parks
Fund No. 64, pursuant to Article 607h, Section 10, Vernon’s Civil
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Honorable James U. Cross, page 12 (M-1061)
Statutes, may bs used for the acquisition of land or park purposes.
This is an authorized contributional fund under Article III, Section
49e, Constitution of Texas. Special Game and Fish Fund No. 9 may
be used to pay such relocation assistance costs incurred in connection
with the acquisition ‘of land and water for hunting and fishing purposes
as provided in Article 978f-3a, Section 6, Texas Penal Code. See
also Article 895 of the Penal Code and Article 4386b, Vernon’s Civil
Statutes. Articles 405Ob, 405Od, and 405Oe, Vernon’s Civil Statutes,
expressly authorize the acceptance of funds to be so used. Land and
Water Recreation and Safety Fund No. 63 is likewise available for
the purpose of acquiring land for recreational purposes as well as to
enforce the Water Safety Act, as authorized in Article 9.13(6a), B,
Taxation-General, Vernon’s Civil Statutes. Special Boat Fund No,
59 is authorized to be used to acquire land as necessary for construc-
tion and maintenance of boat ramps on or near public waters. Federal
Land and Water Conservation Fund No. 223 is a special fund set up
by the Comptroller for B. 0. R. Federal Funds and relocation costs
may be paid out of it in connection with purchase of park lands for
state parks. Texas Park Fund No. 31 is also available where under
Article 7.06, Section (3) (a), Taxation-General, Vernon’s Civil
Statutes, land is acquired for planning and development of state parks
and historic sites.
SUMMARY
The Parks and Wildlife Department has the
authority under present State law to make or accept
payments prior and subsequent to July 2, 1972, for
relocation assistance costs as required by the Uniform
Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (Public Law 91-646; 84 Stat. 1894,
23 U.S. C. A. 501, et seq.). The same authority is
vested in Counties, Cities, Water Authorities and Water
Districts so as to qualify for Bureau of Outdoor Recrea-
tion, Land and Water Conservation funds as administered
by the Parks and Wildlife Department, both prior to
and subsequent to July 2, 1972.
The Parks and Wildlife Department has the
authority under present State law to comply with the
provisions of the Uniform Relocation Assistance and
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Honorable James U. Cross, page 13 (M-1061)
Real Property Acquisition Policies Act of 1970 relating
to uniform policy or real property acquisitions and the
payment of expenses required by Section 301 through
305 of the Federal Act. However, no opinion is ex-
pressed on whether authority under state law exists for
acquisition of “uneconomic remnants” as contemplated
by Section 301 (9) of the Federal Act.
The Parks and Wildlife Department has the
authority to pay relocation assistance costs out of the
General Revenue Fund: the State Parks Fund No. 64,
Special Game and Fish Fund No. 9, Land and Water
Recreation and Safety Fund No. 63, Special Boat
Fund No. 59, Federal Land and Water Conservation
Fund No. 223, and the Texas Park Fund No. 31,
where such costs are incurred for the uses and pur-
poses set out in the Appropriation Bill or authorizing
statute.
Yo*ry truly,
ORD C. MARTIN
ey General of Texas
Prepared by Bill Flanary
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Banks
Houghton Brownlee
John Reeves
Mike Stork
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Honorable James U. Cross, page 14 (M-1061)
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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