Untitled Texas Attorney General Opinion ( 1943 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Xonorsble Clsrk C. l@t?n, EXeautlYe Seam
Texas Aatlonal Quard-Armory Board
ROUU 1603 - Seoond Xfttlonal Bank Build- I..
Rouston (zone 2), Texea
<’ \
Dear Sir:
letter of
ot this depart-
. ‘kp quote the body of your
e questiona are the follovlng
&Zhap&r 1. Title 8UIlitla’ p, 486, G.L.
06 Is& Art, 5790.
nAu~orlzlng the Adjutant General to execute
In behalf of the atate a8 Lessee, leasee and sub-
leases vith Texas National Guard Armory Board and
to renev such leases and sub-leases fran time to
tlm?.
520
:lorable Clark C. Wren, Executive Seoretary, Page 2
"Chapter 2. auprs~pp 487 et seq. (The
Arnrory Board Aot)
‘Creating the Anuory Board an s body {olltlo
and corporate end providing that it shall hare
aharge of the acquisItIOn, oon8tructlon, rental,
control, maintenance and operation of all-
.wl Guard Anuorlcr~ etci ‘poseesr all pavers
necessary and convenient for the aaoompll&nnent
of such duty’ etc. (Sea 2); ‘enter Into aontraots
h oonnectlon vlth any matter vlthln the objoots,
purpores or dutleo of the Board’ (Sec. 2b) f *ao-
qulre, by gift or purchase, property of any end
every deeoriptlon, real, personal or mixed lnolud-
lng leasehold estster (Sea 2f); lease and sub-
lease its roperty and pledge the revenues there-
0S (Sea 2gP i borrow money and issue bonds and
bther evidences of Indebtedness secured by a pledge
of the revenuea of Its property etc. (Se0 2h) f exe-
cute and deliver lesaes or sub-lessas demising
snd leasing to the State of Texsr$ determIne the
term of suoh leasea; aud providing .that the lav
requiring notice and aompetltlve blds,ahall not
1s to leasing or sub-leasing of auoh property.
It I iddthatthe B rd halldt
the &%&n&i of renta?to :e paIdebt132 Tex. 613, 126 S.W. (26) 627, 632, by
Suetloe sharp, vho vrote the opinion:
"The Clear pU~O84 Of this Aot i8 to give
8tability to the m.iPilitary arm of the State. It
provides that the pr8onr acting ae m4Uib0r8 of
the 4Xi8tbg Texas National Guard Armory Board
8hsll compose the members Of the Board under this
Act. This Aat provides that those who constitute
this Board shall be the three rank- member8 of
the 'fOXa lPatioaa1 Guard, vhlch ineuro axper-
ienced men on the Board to guldo and direct tho
affair8 of the Texas Nations1 Guusrd. The meabero
of the Board serve without pay, and it la to then
a duty of tru8t end honor. The dominant objeat
Of thi8 DCU't Of the Act 18 t0 h4VS CCUltirmity Of
service on the Board of men of military training,
and who have been seleoted for their expsrlenco
and merit, in order that the efficiency of the
Board may not be Impaired."
Slnoe the above ea.84 was dooFd4d tvo odditlonal
members have boon added to th.4 Armory Board by the 46th
L4gIrlatur4. The tvo additional members ar4 the aenlor
active officer of the National Guard of Texas and the
realor cavalry officer of said Guard. see Acts 1939, 46th
Los., p. 487, Sea. 1. It i8 thU8 apparent 'that the u&8-
letUP ha8 sought to 8t8ff the AX%lOl'yBoard with the OUt-
rtaadlag mllltary men of the State.
!l!ho pavers and authorities vhich ve have quoted
frcm the statute are but a 8mall portioa.of the man 4Xpr488
power8 conferi‘ed UpOn the Armory Board b Article 5 90b.
Those are the powers and authorities vi t3; vhloh v4 ti
ar4 prl-
m@ily cO&O4ra4d here, but We She11 h&V0 OOCd.On at a later
gi”t in this Opbb& t0 refer t0 other pOWOr pO884slrOd by
.
The vital function of tha Armory Board, end the
obvious pUrpoS8 of the LegIs1ature l.n creating it, 18 to pro-
vide a m4ar.18of socurlng amorles to houso the State milltla
aad it8 equtpment. In thi8 OO&neCtioa x4, direct your atton-
tlon to other langus,ge in the 0884 of Texas National Guard
Honorable Clark C. Wren, Exeoutive Seoretary, P8ge 10
Armory Board V. MoCrav, supra, vhloh appeara at page 681
~1~IvsSouthvestern Reporter olted, and vhioh reads 8s
:
W vould be dirri0Ult for the mind t0
conceive hov 8x1 army c8n be Faised, equip ad,
and disolpllned, 8s oomnwnded by Section &6
0r utiOi6 16 or the (T~XUS c0mitUtion,
VithOUt 8ISlOri8S to house t h, amy snd its
eqtipment . The pover to provide for the 8my
iS left t0 the VisdOIB Or the ~gi6lUtUXt, sub-
jeOt Only t0 the linclt8tiOXl that SUOh 18VS 8s
ah811 be passed by the Legislature, shall not
be ‘Incompatible with the Constitution and
Lavs or the united Statea.’ The u73i~18+2~3
has seen f%l to enaot t&f13 lav for the purpose
Or proouring s,ites snd erecting armories, and
ha&f’urnIshed the method for flnanclng the
, The visdcm or the expedlenoy of’ the lav
is left exoluslvely to the Legislature to de-
termine, and courts al-6 conoernod only vlth
it5 Validity,"
Article 589Ob, to us, evidences the oonsidered
purpore or the Texas ugiSl8tUre to place absolute 8nd un-
lbited discretion for the aoo~plfslnnent or the objeots
therein enumersted in a board ccmpoaed Of men with military
buokground. Tiw pavers vhloh have there been oonferred up-
on the Armory Board by the Legislature are, in every in-
8t8no8, 8 reared in the broadest poeslble terms, thus fIu-
ther reve 3 w the tma&takablp intent of the Legislature
that the entire dlsoretlon In matters oonoomed vith secur-
w 8muaria8 to how* State milit8z-y eitabllahments rest in
the Armory Boa@. !l!boughout this srtlale, the Legialsture
bar vith rrorupulous oare stated that nothing oxpressedthere-
in is to be oonstrued as a 1LDitation upon tha pover snd au-
thoritr vhich the ~rm0a-y Board may need for the aoooniglish-
8b6d 0r it8 purp08e8. A delegation of authority more sweep-
ing in its scope, to the end that stability be given to the
adlitury arm of the Stete, oannot be lmaglned.
yundpul or the purpose ror vhioh the Armory Board
V8S Ore8ted and of the plenary powers for aeocanplishlng this
Honorable Clark C. Uren, Executive Secretary, Page 11
purpose vhioh have been conferred upon It, and mindful or
the IEilitUrJr oharaoter of the Armory Board and of its
undeptakfng, we do not believe that the Legislature would
Vest any portion of that 8uthorlty in another board without
using language clearly expressing tbat intention. Nor do we
believe that the 48th Leglalature by enACting Senate Blll
No. 266 (Chapter 289, Acts 1943, p8ge 385) intended to take
ftrom the Armory Board any of the brond powers and discre-
tion vhloh had been theretofore conferred upon It.
Article 789Ob placea in the Armory Board the ex-
Qreas duty to acquire leasehold estatea and grants to It
all powers neoeaaary and convenient for the accomplishment
of euoh duty.” If we hold th8t Senate Bill No. 266 applies
to the Armory Board, we must necessarily hold that the
Legislature intanded.to take from the Armory Board these
broad powers and discretions.
In Senate Bill No. 266, the 48th Legislature has
918Ced absolute discretion over the need by any agency or
department of the rental space whlchTproposea to lease
or rent in the Board of Control. Some possible diatinotlon
may be made on the basis that Senate Bill No. 266 refers to
8nd applies to rental space, vhile Article 789Ob applies to
leasehold estates. However, ve will not quarrel with mere
temo1ogy. A8 we have seen, Artlole 58gOb places abaolute
dlacretion In the Armory Board over the necessity or desir-
ability 0r such leasehold estate a8 it de6iroS to acquire.
Llkevise under Article T&Ob selection d sltea is left to
the dlsoretlon of the Armory Board ua a neceaaury corollary
of the grant of “all power8 necessary and convenient to the
8coompllshment” 0r 14s duties. Under Senete Bill No. 266,
selection would be made to depend, ln’part at least, upon
the amount bid and other factors Vhfoh may or may not take
into oonsfderatlon the desirability Of the site as 8 till-
tary installation.
Again quoting rrom the oplnlon or Justice Sharp
in Texaa National Armory Board v. MoCraw, supra:
“It la well to keep in mind that we are
dealing with statutes and provlslons of the
Conatltution relating to mllltary matters and
lonorable Clark C. Wren, Executive Seorotary, Page 12
the power of the State to create an army and
provide for ite malntenanoe . . . . This Act
1s a part of the program adopted by the Legls-
lature OS Texan relating to the organization
and maintenance of the Texas Rational Guard,”
We do not believe that In passing Senate Bill Ho.
266, the 48th Legislature intended to enoroaoh upon the
broad dlaoretion vhloh it has placed in the military ana
of the State end entrust those matters to men vithout mill-
targ bpokground. A8 ve have seen, the Legislature in Artiole
789Ob has been oareSu1 to prescribe that only men wlth mill-
tary baokground eerve on the Armory Board. The primary
funotlon of the Armory Board la to seoure and malntaln ar-
aorles and the Armory Board Act places the burden upon the
,?gnory Board to do vhatever is neoessary to carry out its
objeots and purpose,s.
While Senate Bill Ho. 266, according to its ex-
press language, applies to all State agenoles, we are of the
r~pinion that properly oonstrued, It does not apply, and vas
not intended by the Legislature to apply, to governmental
oorporatlons, such as the Arrmory Board, to vhloh the Legls-
lature has granted broad and extensive powers for the aaocan-
plirhment OS a partiaular and segregated purpolre of the State.
J@&.ave already slluded to the fact that the Armory Board,
a8 set up by the Legislature, Is oonstituted a body politic
&fCZoorporation, which, vhlle it performs funotlons bene-
Sl~iZl to the 8tat8, is not in a true sene.e a component and
interdependent part OS the admlnlstratlve lnaohinery OS the
state government.
------- -
-s.,;
In Its broadest oonnotation, the expression “atate
ageaoy” may and does enoompass all organizations and bodies
serving any of +he objeots or purposes OS the State govern-
ment. Under thin deffnitlon all organiztitlons whiah are
oreated by the State to carry out any one of the many State
pwposea, as distinguIshed from those whioh serve strl.$~
private enterprises, are 018ased 88 stste agencies.
Lindsey-Btrathmoe Irr. Diet., D, C. Cal., 21 F. Supp. 129.
Thus a school dlstrlat, a port oommiaalon, a oity board of
eleatlons, an drrigation distriot and a bridge distrlot
53 1
Honorable Clark C. Wren, Rxecutlve Sccretnrg, page 13
havo all been held to be state aganalos. See 40 Words &
Phrases (Perm. Rd.) 19.
And under this broad definition, even lncor-
porated cltlea have been called State nyencles by the
oourts of Texas. As pointed out ln Terss National &ard
Armory Board V. McGraw, supra:
“In its governmental capacity a city Is
a political subdivision of the State, and ln
many lnstanaes Is oonsldered as an agent of
the State; and the State may use such agent In
the discharge of its duties. Yett v. Cook,
115 Tex. 205, 281 S.W. 837; City of Uvalde v,
Uvalde Elec. k Ice Co., Tax. Comm. ~pp., 250
S.W. 40; City of Trenton v. Neu Jersey, 262
. U.S. 182 43 s. ct. 534, 67 L. Ed. 937, 29
A.L.R. 14 1; 43 C.J., Sec. 5, p. 79, and sec.
179, p. 1i 2 and cases cited in footnotosj Cor-
poration of San Fell e De Austin v. State, 111
Tex. 108, 229 9.W. i3i5; city of Armlsss Pass V.
Keeling, 112 Tex. 559, 247 S.W. 818; 43 C.J.,
880. 5, p. 70.”
We doubt that anyone would seriously contend
that a oity is a State department or that anyone would
seriously urge that the provisions of Senate Bill No.
66 are intended to apply to cities. While cities are,
in the broad sense, arms of the State, they are neverthe-
less sovereign ln themselves vlthln the llmltatlons lm-
posed by the Constitution and statute8 of the State.
They are not like those agencies or departments of the
state government which perform limited functions as a cog
ln the sdmlnlstratlve machinery of state government and
vhlch have no sovereignty of’ their own.
Yet, If we were seeking an annlogy, ve would
oertaldly conclude that the Amory Borrrd is more nearly
Ilke a municipal corporation or city than a State depart-
mwlt . To all Intents and purposes, the Armory Board is a
governmental corporation, with povers and authorities com-
mensurate with those possessed by private corporations or
Ionorable Clark C. Wren, Executive Secretary, page 14
3unlalp81 corporations. It has been created by the Legis-
lature to asrve oertain, llmlted interests OS the State,
wselp, the eaquisitlon of armorlea for the State’r armed
forces.
Artiale 589Ob giver, the Azao Board almost un-
Limited over8 to effectuate and aaoomp
7 lsh Its purposes,
9ec tlon i of that article provides thatr “In the exeou-
tion and edmlnistratlon OS objeats and purposes herein set
forth, the (Armory) Board shall have pover to adopt means
and methods reasonably calculated to aooompllsh suoh ob-
jects and purposes and this Aat rho11 be oonstrued llberel-
ly in order to effectuate such objects and purposes,”
Under this statute, it possesses numerous povers
vhlch are not ordinsrlly, and, in Sect, most of vhlch are
nevq, grwted to ordinary state departments, For exsmple,
to n8me a fev of the powers grsnted, the Armory Board has
authority to sue or be sued in its ovn name and to enter
into contracts in Its oyll nsmej to have and use a oorporate
seal1 to 0.x the number of and compensation of its employees;
to adopt, change and amend by-lava, rules snd regulations
for the conduot of its affairs; to oonstruct buildings and
to buy, ovn, sell or exohange property 3.31Its ovn nsmeJ to
borrov money and isrue and sell bonds for the purpose OS ao-
Quirlng building sites and build-8 snd to oontraot vlth
the State as a separate entity.
For all of the reasons rtated, ve have oonaluded
that Seaate Bill Ro. 266 doe8 not Ppply to the Texas Bstlonal
Guard Armory Board and you are 80 respeotSully advised,
What we have stated aPaVers all of the questions
propounded by you vlth the sxoeption of your questions l(b)
and l(o), whloh we will nov oonslder.
In the negotiation of all leases and sublease8 be-
tveen the Texas Ration81 Quard Msory Board and the State OS
Texas the Adjutant Qeneral, under the provlslons of subsea-
tlon (i) of Seotlon 2 of Artlale 589Ob, Is authorlted and
designated to sot for the State, We quote this subsection
3n full, as follows;
--
.
Honorable Clark C. Wren, Executive Seoretary, Page 15
“To execute and deliver leases, or aub-
leases in the aase of buildings looated upon
leasehold estates acquired by the Board, de-
mlslng and leasing to the Stats of Texas
through the Adjutant General, uho shall exe-
cute the same for said State, for such lavSu1
term es may be determined by the Board, any
build- or bulldings and the equipment there-
In and the site or sites therefor, to be used
for Armory and other purposes and to renew
such leases or sub-leases from time to time;
provided, however, that if at any time the
State OS Texas shall Sail or refuse to pay
the rental reserved In any suoh lease or sub-
lease, or shall fell or refuse to lease or
sub-lease any suoh building and site, or to
renev any existing lease or sub-lease thereon
et the rental provided to be paid, then the
Board shall have the power to lease or sub-
lease such buildlug and equipment and the
site therefor to any person or entity and
won such terms as the Board may determine.
The law wqtirlng notloe and ao&atltlve bids
Board ahhi determine) to be charged the State
OS Texas for the use of euoh property leased
or sub-leased to It by the Board shall be
suffiolent to provide for the operation and
maintenance OS the property so leased or sub-
lassed, to pay the interest on the bonds, de-
bentures or other evidences of indebtedness,
IS any; issued for the purpose of acquiring,
aonstructing or equipping such property, to
provide for the retirement of such bonds, de-
bentures or other evidenaes OS indebtedness,
If any, and the payLS8nt of the expenses inol-
dent to the lesuanoe thereof, es vell es the
necessary and proper expenses of the Board
not otherwise provided for.” (blnyhaels added)
Honorable Clark C. Wren, Wecutlve Seorotary, Page 16
It vi11 be observed that this subsection speclf-
Ioally states (see underlined sentence above) that the ‘lav
requiring notloe and oompetltive bids shall not apply’ to
leases OF sub-leases betveen the Texas National Guard Arc
mory Board and the State of Texas.
Senate Bill No. 266 on the other hand provides
that leases to all departments and agencies of the State
shall be made on aompetitive bids by the Board of Control,
Ho provision vas made in this bill, however, for either
speclfid or general repeal of oonfllcting legislation. If
the underlIned provision of submotion (I) bas been repealed
by Senate Bill Bo, 266, such repeal must have been accom-
plished by Implication since no actual repeal, either speclf-
IO or general, is oontained In the Bill as passed by the Leg-
islature. Such repeals are not favored by the aourts and
vi-l1 not be Invoked unless .the old and the neu law are so
antagonistic and repugnant that both oannot stand, the pre-
sumption being that the Legislature ln enaatIng the new law
Intended for the old provision to remain in sffeat, 39 Tex.
Jur. 140, md casea oited in the footnotes.
“If by any reasonable oonstructlon two
acts or statutory provisions can be reconciled
and so construed that both may stand, one will
not be held to repeal the other. Espeolallg
vhere the older law Is particular and Is ex-
pressed In negative terms, and th later stat-
enoral, a oonstruotion viz1 be sought
late
vhiohIS harmon
+ zes them and leaves both in con-
current operation.” 39 Tex. Jur. 141-2, and
oases cited In the footnotes. (IS&hasis added)
The ;nderlIned provision ln subsection (I) of Sec-
tion 2 of Article 58gOb Is expressed in negative tenss. It
applies to a partioular type of lease--those for armories-
and It Is restrloted to leases betvoen the Armory Board and
the Adjutant General, acting as agent for the State.
The new law--Senate Bill No. 266--b general. It
applies to all leases by all departments and agencies of the
State.
Honorable Clark C. Uren, Exeautlve Seorotarg, Page 17
Therefore, applying the quoted rule of statutory
construotlon, both provisions should be allowed to stand.
Subsection (I) of Seation 2 of Artiole 58gOb vi11 be con-
sidered an exoeption to the general provisions contained
In senate ~111 No. 266. 39 Tex. Jim. 149-50; Townsend v.
Terre& 118 Tex. 463, 16 9.W. (26) 1063~ Cole v. State,
lo6 Tex. 472, 170 S.W. 1036, dlsmlsslng error 163 S.W.
353; Ellis v. Batts, 26 Tex. 703.
Your iuqulries are therefore respectfully an-
svered as follovs: 1. a No. (b) Yes. (a) Yes.
2. Senate Bill No. 26bh as no affect on the arrangements
you outline. 3. Yes. 4. No.
Trusting that we hrve fully answered your inquiry
and that you will call upon us If we can be of further serv-
Ice, ve are
Ap’TF:.vT-Dm 3, 1943
Yours very truly
ATTOIUEYGENERAL
OF T&XAS
~-----bd7
BY _ ~/ C.? *.J
Peter ManIsoaloo
Assistant
PM:ff
.