Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 9/27/2004
Status: Precedential
Modified Date: 7/6/2016
The Honorable Phil King Chair, Regulated Industry Committee Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910
Re: Whether the Weatherford College District may lease real property to the Wesley Foundation, an organization associated with the United Methodist Church, to construct a student center, chapel, and other facilities (RQ-0205-GA)
Dear Representative King:
You ask whether the Weatherford College District (the "College District") may lease real property to the Wesley Foundation, an organization associated with the United Methodist Church, to construct a student center, chapel, and other facilities.1
The long-term lease agreement is to be sufficient to accommodate the Wesley Foundation's commitment to facilitate the cost of constructing a student center including a lounge, classrooms, kitchens, and administrative offices for the Weatherford District Superintendent of the United Methodist Church.
The facility to be constructed will be under the control of the Foundation, subject however to significant review and approval provisions relating to the construction plans. The center is to be non-denominational, and while a Chapel is contemplated, the facilities' primary use will be to provide another venue for Weatherford College students' social and educational experiences. It is additionally contemplated that the Foundation will build excess parking which will immediately be used by the College and at the end of the lease term the facility will revert to or pass to Weatherford College.
Id. at 1. Although you do not provide any information about the Wesley Foundation's purpose or nature, we gather that it is an organization of or associated with the United Methodist Church. We assume that the student center would be open to all students and that the chapel would be nondenominational.
We understand from newspaper reports that the lease would be for up to a 50-year term and that the Wesley Foundation would pay the College District $1.00 a month for the use of the property. SeeFort Worth Area Briefs, Weatherford, The Fort Worth Star Telegram, Feb. 20, 2004 ("The Weatherford College board has authorized the college to move forward with an agreement with the Wesley Foundation to lease college-owned land for the construction of a student center. The agreement calls for the foundation to pay $1 a month for 50 years for use of the property."); see also Gale M. Bradford, Weatherford Collegetrustees table church group's lease plan, The Fort Worth Star Telegram, Jan. 15, 2004. It is not clear from your letter or the newspaper reports whether the entire facility or only the excess parking would revert to the College District. See Request Letter,supra note 1, at 1.
You ask two very general questions about the lease:
Does current Texas law prohibit Weatherford College from leasing all or a portion of its lands to any entity, including without limitation a 501(c)3 non-profit entity?
If permitted, does the non-profit entity's religious affiliation prohibit such a lease agreement as generally outlined in the facts set forth above?
Id. at 1-2. Your first question requires us to determine whether the College District is authorized to lease real property to a private entity and then to examine the common-law, statutory, and constitutional limitations on that authority. Your second question requires us to consider more particularly whether the College District may lease real property to a religious organization.
II. Weatherford College District's Authority to Lease RealProperty to a Private Entity
A. A Junior College District's Statutory Authority to LeaseProperty
The College District is a junior college district governed by chapter 130 of the Education Code. See Tex. Educ. Code Ann. §
technical programs up to two years in length leading to associate degrees or certificates;
vocational programs leading directly to employment in semi-skilled and skilled occupations;
freshman and sophomore courses in arts and sciences;
continuing adult education programs for occupational or cultural upgrading;
compensatory education programs designed to fulfill the commitment of an admissions policy allowing the enrollment of disadvantaged students;
a continuing program of counseling and guidance designed to assist students in achieving their individual educational goals;
work force development programs designed to meet local and statewide needs;
adult literacy and other basic skills programs for adults; and
Id. § 130.003(e).such other purposes as may be prescribed by the Texas Higher Education Coordinating Board or local governing boards in the best interest of post-secondary education in Texas.
The Texas Higher Education Coordinating Board ("Coordinating Board") exercises "general control of the public junior colleges of this state," id. § 61.060 (Vernon 1996); see also id. § 130.001(a) (Vernon 2002) ("The Coordinating Board . . . shall exercise general control of the public junior colleges of Texas."), and is generally required to approve building construction at institutions of higher education financed from any source, see id. § 61.058(a) (Vernon Supp. 2004). However, the Coordinating Board's authority to approve or disapprove new construction on junior college district property does not extend to construction on land leased to a private entity that does not involve state funding. See id. § 61.058(a)(E) ("the requirement of approval by the board does not apply to a junior college's construction, repair, or rehabilitation financed entirely with funds from a source other than the state, including funds from ad valorem tax receipts of the college, gifts, grants, and donations to the college, and student fees"), (F) ("[T]he requirement of approval by the board does not apply to construction, repair, or rehabilitation of privately owned buildings and facilities located on land leased from an institution of higher education if the construction, repair, or rehabilitation is financed entirely from funds not under the control of the institution, . . . provided that: (i) the buildings and facilities are to be used exclusively for auxiliary enterprises; and (ii) the buildings and facilities will not require appropriations from the legislature for operation, maintenance, or repair unless approval by the board has been obtained.").
Authority not vested in the Coordinating Board "is reserved and retained locally in each of the respective public junior college districts or in the governing boards of such junior colleges as provided in the laws applicable." Id. § 130.002 (Vernon Supp. 2004); see also id. § 61.060 (Vernon 1996) ("All authority not vested by this chapter or other laws of the state in the board is reserved and retained locally in each respective public junior college district or the governing board of each public junior college as provided in the applicable laws."). A junior college district board of trustees is "governed in the establishment, management and control of the junior college by the general law governing the establishment, management and control of independent school districts insofar as the general law is applicable." Id. § 130.084 (Vernon 2002). Section 130.0021 governs a junior college district's authority to donate, exchange, convey, sell, or lease land to a university system. Seeid.
§ 130.0021.2 Because no other chapter 130 provision governs the authority of a junior college district to convey land,3 we look to the law applicable to independent school districts' authority to lease school district land. See id. § 130.084.
The trustees of an independent school district "as a body corporate have the exclusive power and duty to govern and oversee the management of the public schools of the district." Id. § 11.151(b) (Vernon Supp. 2004). Under section 11.151(a) of the Education Code, the trustees of an independent school district "in the name of the district may acquire and hold real and personal property, sue and be sued, and receive bequests and donations or other moneys or funds coming legally into their hands." Id. § 11.151(a). In addition, section 11.151(c) provides that "[a]ll rights and titles to the school property of the district, whether real or personal, shall be vested in the trustees and their successors in office. The trustees may, in any appropriate manner, dispose of property that is no longer necessary for the operation of the school district." Id. § 11.151(c). Section 11.154(a) further provides that a "board of trustees of an independent school district may, by resolution, authorize the sale of any property, other than minerals, held in trust for public school purposes." Id. § 11.154 (Vernon 1996). A board of trustees holds school property in trust to be used for the benefit of school children in the district. See Love v. Cityof Dallas,
While sections 11.151(c) and 11.154 authorize a board of trustees to dispose of real property that is no longer necessary for the operation of the school district and to sell property, no provision expressly authorizes a board of trustees to lease school real property to another entity. However, in RoyseIndependent School District v. Reinhardt,
Based on these facts, the court concluded that "such use [of the property] is not so inconsistent with the purposes to which the property has been dedicated or set apart as renders the contract . . . illegal or unauthorized." Id. Relying on Royse, a number of attorney general opinions have recognized boards of trustees' implied authority to permit private groups to lease school property when the lease does not interfere with the property's school purpose. See, e.g., Tex. Att'y Gen. Op. Nos. WW-1364 (1962) at 7 (concluding that a school district board of trustees was authorized to lease school property to a fire protection district so long as the lease "does not impede or interfere with the operation of the school"); O-5354 (1943) at 9 (concluding that a school district board of trustees was authorized to lease a school building to a religious sect for a summer religious school provided that the school district received reasonable consideration and the lease did not "interfere with use of such property for school purposes"). Cf. Tex. Att'y Gen. Op. No.
While judicial and attorney general opinions after Royse have not questioned school district boards of trustees' implied authority to lease school district land, it is important to note that subsequent opinions addressing long-term leases have concluded that boards of trustees lack authority to enter into a lease that interferes with the property's use for school purposes or that relinquishes the board's authority to control the property's use. For example, in 1972 this office concluded that an independent school district lacked authority to lease school property for use as a neighborhood center for a 20-year term:
[A] minimum twenty-year lease by the present trustees of the property in question, without any discretion being left in the trustees of the future for possible needed use for school purposes, would exceed the recognized discretionary leasing authority of the school . . . . The lease would not be deemed a temporary, casual, or incidental use and would amount to an impermissible diversion of governmental property from its intended use for school purposes.
Tex. Att'y Gen. Op. No. M-1047 (1972) at 3.
And even more significantly, in 1986, in the last judicial opinion to consider a school district lease's validity, the court declared the lease ultra vires and void. See River Rd.Neighborhood Ass'n v. S. Tex. Sports,
The lease is for a primary term of 30 years and grants to lessee, STS, the right to extend the term for two additional 10-year periods. The lease is, thus, for a minimum period of 30 years, and if STS chooses to exercise its options, for an additional 20 years.
The lease gives STS the right to the "exclusive use" of the leased premises for "all lawful purposes," without paying until at least February 1, 1986.
Id. at 559. The plaintiffs did not question the district's right to permit a private organization to use district property in a manner that would not interfere with the property's use for school district purposes, but contended that the lease relinquished the board's right to manage and control the property, including its right to allow other groups to use the property. Id. The court agreed:
Id. at 560.There can be no doubt that [the] District's Board exceeded its powers when it, by the lease in question, effectively divested itself of the exclusive right to manage and control the property in question, including, for a period of perhaps 50 years, the exclusive right to determine when the District itself could use the school property for school purposes. The invalidity of such abdication of power and diversion of property held for public purposes has been recognized in Texas at least since 1887.
In sum, the College District board of trustees has implied authority under the Education Code to lease district real property to a private entity. However, in leasing district property, the College District board of trustees may not (i) permit uses of the property that would interfere with the property's use for district purposes, or (ii) divest itself of the exclusive right to manage and control the property in question. The final determination whether a lease comports with these limitations involves questions of fact, see Tex. Att'y Gen. Op. No.
B. Other Limitations on a Junior College District's Authority toLease Land to a Private Entity
State statutes and the Texas Constitution impose additional limitations on the authority of a junior college district to lease real property to a private entity.
Section 272.001(a) requires that "before land owned by a political subdivision of the state may be sold or exchanged for other land, notice to the general public of the offer of the land for sale or exchange must be published in a newspaper of general circulation," with information about sealed bidding procedures.See Tex. Loc. Gov't Code Ann. § 272.001(a) (Vernon Supp. 2004). Section 272.001(b) excepts certain types of land and interests from the section 272.001(a) notice and bidding requirements, including "land that the political subdivision wants to have developed by contract with an independent foundation." Id. § 272.001(b)(4). As this office has previously advised the College District, "any contract of sale under the terms of Local Government Code section 272.001(b)(4) between a political subdivision and a private foundation for the development of a parcel of public land owned by the political subdivision must include an undertaking that the foundation will develop the land as the political subdivision determines." Tex. Att'y Gen. LO-97-076, at 3. The land and interests described by 272.001(b), including section 272.001(b)(4), "may not be conveyed, sold, or exchanged for less than the fair market value of the land or interest unless the conveyance, sale, or exchange is with one or more abutting property owners who own the underlying fee simple." Tex. Loc. Gov't Code Ann. § 272.001(b) (Vernon Supp. 2004).
Whether a lease arrangement is a sale or exchange subject to section 272.001 depends upon the lease's terms, such as the lease's duration, the political subdivision's right to control the land during the lease term, and the political subdivision's right to improvements at termination. See Tex. Att'y Gen. LO-96-053, at 3 (noting that a court could "conclude that a transaction in which a county transfers equitable title to county real property to another entity with an irrevocable option to purchase constitutes a sale of land for purposes of section 272.001"). A court of appeals recently concluded that section 272.001 does not apply when a political subdivision temporarily leases land to a private entity. See Walker v. City ofGeorgetown,
Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art.
Section 52(a) prohibits "gratuitous payments to individuals, associations, or corporations," but "[a] political subdivision's paying public money is not ``gratuitous' if the political subdivision receives return consideration." Tex. Mun. LeagueIntergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n,
The College District is a political subdivision, see Tex. Att'y Gen. Op. No. M-707 (1970) at 3, and its agreement to permit a private entity to use its land constitutes a "thing of value" for purposes of article III, section 52(a), see Walker,
Here, the College District proposes to lease district property to a private entity for a 50-year term for $1 a month. But the College District may receive other more meaningful consideration, such as the construction and use of a student center, classrooms, and parking facilities. While the lease would be prohibited by section 52(a) if the College District receives no or merely nominal return consideration, this does not appear to be the case. See Tex. Mun. League Intergovernmental Risk Pool,
III. Weatherford College District's Authority to Lease RealProperty to a Religious Organization
Your second question asks, if the College District is permitted to lease land to a private nonprofit entity, whether "the non-profit entity's religious affiliation prohibit[s] such a lease agreement as generally outlined in the facts set forth above?" Request Letter, supra note 1, at 1-2. No statute specifically addresses the College District's authority to lease real property to a religious organization or affiliate. Thus we consider whether the United States or Texas Constitution prohibits such a lease given "the non-profit entity's religious affiliation." Id.
The United States Court of Appeals for the Fifth Circuit has gleaned from United States Supreme Court precedent three different tests used to determine whether governmental action violates the Establishment Clause. See Freiler v. TangipahoaParish Bd.,
We have not located any Establishment Clause case examining whether a public school district, college, or university may lease land to a religious organization to construct campus improvements. We have located several cases that examine whether a political subdivision may sell or lease real property to a religious organization to operate or construct a religious sanctuary or other improvements. See, e.g., Freedom from ReligionFound., Inc. v. City of Marshfield,
It is clear from these cases that courts apply the Establishment Clause tests in light of each situation's unique facts, and a court's decision in any particular case is extremely fact sensitive. We examine the proposed lease in light of this case law to provide the College District with guidance. Given the limited information available to us about the proposed lease, however, we cannot ultimately determine how a court would view the College District's proposed action, should it be challenged in a legal action. See Tex. Att'y Gen. Op. Nos.
Applying the Lemon test, courts generally defer to a government's statement of secular purpose. See Edwards v. Aguillard,
The second prong of the Lemon test — whether the government action's primary effect either advances or inhibits religion — and the endorsement test involve similar concerns, and we address them together. See Lara,
Here, the College District would lease land to the Wesley Foundation for $1 a month for a 50-year term, a benefit that appears to be more than indirect, remote, or incidental. Assuming that the College District benefits from the lease's terms, however, the fact that the Wesley Foundation is also benefitted does not necessarily bar the transaction. See Southside FairHousing Comm.,
The overall effect of the lease will depend upon facts not provided in your letter, particularly the extent to which the proposed facilities would be associated with the Wesley Foundation or the United Methodist Church and the College District's past practice and general policies with respect to leasing land to private groups. See, e.g., Southside Fair HousingComm.,
Furthermore, assuming the College District has adopted neutral policies regarding access to campus land and facilities, the fact that the Wesley Foundation, students, or other religious groups may use the leased land for religious expression is not constitutionally problematic. The Supreme Court has consistently sustained against Establishment Clause challenge neutral government policies that permit private religious speech on and within state educational and other properties on the same terms as private secular speech is permitted. See, e.g., Rosenberger,
Finally, the proposed lease need not entangle the College District in the Wesley Foundation or United Methodist Church's religious affairs. The College District must continue to exercise authority over the leased land because state law precludes the College District from divesting itself of the exclusive right to manage and control the property and because the Texas Constitution mandates that the lease serve a public purpose and that the College District include sufficient controls in the lease to ensure that the public purpose is carried out. See Part II, supra. But the College District, in its role as lessor, may exercise the requisite level of control over the land's development and use without involving itself in religious matters. See, e.g., Los Angeles Cmty. Coll. Dist.,
In sum, the Establishment Clause does not prohibit the College District from leasing land to a nonprofit entity because of its religious affiliation. Whether the lease comports with the Establishment Clause depends upon the totality of the facts and cannot be resolved here.
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.
Tex. Const. art.
Very few judicial opinions have addressed these state constitutional provisions. The Texas Supreme Court recently stated that these state constitutional provisions are equivalent to the federal Establishment Clause, suggesting that they impose identical limitations on government action. See Lara,
In addition, we note that the few attorney general opinions addressing the article I, section 7 ban on appropriations of funds and property for sectarian purposes suggest that these provisions do not prohibit the College District from leasing land to the Wesley Foundation for reasonable consideration or from permitting the Foundation to build a nondenominational chapel on campus with private funds. Specifically, this office has opined that the article 1, section 7 ban on appropriations to religious organizations does not prohibit a school district from leasing a school building to a religious group provided that the lease does not interfere with the use of the property for school purposes and that "the school district receives a quid pro quo," or "reasonable consideration," "in return for the use of its property." Tex. Att'y Gen. Op. No. O-5354 (1943) at 9 (addressing a school district's lease of a school building to a religious sect for a summer religious school). The determination whether consideration is reasonable is a matter within the discretion of the school district's board of trustees. See id. With respect to religious buildings on a public campus, this office has concluded that article I, section 7 does not prohibit a public college from building a nondenominational chapel on campus provided that it does so with private funds. See Tex. Att'y Gen. Op. Nos. WW-1269 (1962) at 6 (article I, section 7 did not prohibit the University of Houston from building with donated funds a nondenominational religious center), V-940 (1949) at 3 (article I, section 7 did not prohibit the West Texas State College from building with donated funds a nondenominational chapel); see also Tex. Att'y Gen. Op. No.
In sum, article I, sections 6 and 7 do not prohibit the lease agreement on the basis of the nonprofit entity's religious affiliation. To comport with these provisions, the proposed lease arrangement must comport with the federal Establishment Clause. In addition, article I, section 7 would prohibit the College District from using public funds to construct sectarian facilities and requires the College District to obtain reasonable consideration for the lease.
The Weatherford College District board of trustees has implied authority under the Education Code to lease district real property to a private entity, such as the Wesley Foundation, but lacks authority to enter into a lease that interferes with the property's use for district purposes or that divests the board of its exclusive right to manage and control the property.Section
272.001 of the Local Government Code, which governs the junior college district's authority to sell or exchange land or interests in land and generally requires a district to provide notice of the sale and to obtain bids, may apply to a long-term lease in certain circumstances. In addition, articleIII , section52 (a) of the Texas Constitution would prohibit the lease if the College District received no or nominal return consideration. Assuming that is not the case, section 52(a) requires the College District's board of trustees to determine in good faith that the proposed lease serves a public purpose of the College District. In addition, the board of trustees must ensure that the lease includes sufficient controls to ensure that the public purpose is carried out.The United States Constitution's Establishment Clause does not prohibit the College District from leasing land to the Wesley Foundation because of the Foundation's religious affiliation. Whether the lease comports with the Establishment Clause depends upon the totality of the facts, particularly the extent to which the proposed facilities would be associated with the Wesley Foundation or the United Methodist Church and the College District's past practice and general policies with respect to leasing land to private groups. Article
I , sections6 and7 of the Texas Constitution do not prohibit the lease agreement on the basis of the nonprofit entity's religious affiliation. To comport with these provisions, the proposed lease arrangement must comport with the federal Establishment Clause. Article I, section 7 would prohibit the College District from using public funds to construct sectarian facilities and requires the College District to obtain reasonable consideration for the lease.
Very truly yours,
GREG ABBOTT Attorney General of TexasBARRY MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
Mary R. Crouter Assistant Attorney General, Opinion Committee
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Rosenberger v. Rector & Visitors of University of Virginia , 115 S. Ct. 2510 ( 1995 )
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Jane Hawley Eileen Roberts and David Finley v. City of ... , 24 F.3d 814 ( 1994 )
Briggs v. State of MS , 331 F.3d 499 ( 2003 )
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Widmar v. Vincent , 102 S. Ct. 269 ( 1981 )
Freedom From Religion Foundation, Inc., and Clarence ... , 203 F.3d 487 ( 2000 )
Williams v. Lara , 44 Tex. Sup. Ct. J. 998 ( 2001 )
Royse Independent School Dist. v. Reinhardt , 1913 Tex. App. LEXIS 201 ( 1913 )
jane-doe-individually-and-as-next-of-friend-for-her-minor-children-jane , 168 F.3d 806 ( 1999 )
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Epperson v. Arkansas , 89 S. Ct. 266 ( 1968 )
Edwards v. Aguillard , 107 S. Ct. 2573 ( 1987 )
southside-fair-housing-committee-lucy-rodriguez-miguel-de-los-santos-israel , 928 F.2d 1336 ( 1991 )
Lamb's Chapel v. Center Moriches Union Free School District , 113 S. Ct. 2141 ( 1993 )
Lemon v. Kurtzman , 91 S. Ct. 2105 ( 1971 )
Love v. City of Dallas , 120 Tex. 351 ( 1931 )
River Road Neighborhood Ass'n v. South Texas Sports , 1986 Tex. App. LEXIS 9307 ( 1986 )