Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 7/26/2007
Status: Precedential
Modified Date: 7/6/2016
The Honorable José R. Rodriguez El Paso County Attorney 500 East San Antonio, Room 503 El Paso, Texas 79901
Re: Whether a home-rule municipality may lease or sell a portion of an existing city park to a school district (RQ-0566-GA)
Dear Mr. Rodriguez:
On behalf of the Ysleta Independent School District (the "District"), you ask several questions about a home-rule municipality's authority to lease or sell a portion of an existing city park to a school district.1 You explain that the District currently seeks to secure real property on which to construct new schools in the City of El Paso (the "City"), but it has been unable to acquire useable land. See Request Letter, supra note 1, at 2. After study, the District is "contemplating securing the use of city [parkland] through a long[-]term lease or conveyance from the City . . . for construction of a school." Id. You further explain that the proposal would provide the District
with much needed real property in a strategic location, at what could be a nominal cost. The City . . ., in turn, benefits from this arrangement by allowing its citizens secure access [to] and use of certain facilities located within the school campus at no added expense to the municipal taxpayer. Both the City . . . and [the District] have considered the potential benefits of this arrangement and would like to move forward with securing this land and construction of school facilities There does not appear to be any deed restrictions on the [City's] authority to convey the land or on the use of the [parkland].
Id.; see also id. at 3 (explaining that the land was conveyed in fee simple to the City as the result of the subdivision-platting process and "cannot be subject to any reservations, restrictions, or easements"). *Page 2
Based on these facts, you ask four questions:
1. Does a home[-]rule municipality have the authority to enter into a long[-]term lease with an independent school district, covering a portion of an existing city park, and to include in the instrument the right of the school district to renew the lease for an indefinite period (exceeding 40 years) at the end of the primary term without conducting an election or publishing notice and taking bids?
2. Does a home[-]rule municipality have the authority to convey fee simple title to a portion of an existing city park to an independent school district without conducting an election or publishing notice and taking bids as might be required in the event of sale to a private party?
3. If the answer to either 1 or 2 above is in the affirmative, what steps are required of the home [-]rule municipality and the independent school district to [effect] the conveyance or lease of city [parkland] to an independent school district for the purpose of [constructing] a public school?
4. If the answer to number 1 above is in the affirmative, would the independent school district have the authority to expend school district funds for the purpose of constructing a school building and related facilities upon the leased property?
Id at I.
First, section
Second, section 272.001 regulates apolitical subdivision's sale or exchange of real property, but it does not apply to a lease. See TEX. Loc. Gov'T CODE ANN. § 272.001 (Vernon2005); Walker,
Third, another provision in chapter 272, which the Legislature recently adopted, expressly applies only to leases of real property between political subdivisions. See Act of May 14,2007,80th Leg., R.S., H.B. 2618, § 1 (to be codified at TEX. LOC. GOV'T CODE ANN. § 272.005);see also HJ. OF TEX., 80th Leg., R.S. 2580-81 (2007) (reporting the bill's passage in the House on third reading); S. J. OF TEX., 80th Leg., R.S. 1984 (2007) (reporting the bill's passage in the Senate on third reading). The new provision, which will be codified at section 272.005, permits a political subdivision to promote its public purpose by leasing property to another political subdivision in certain circumstances:
*Page 4(a) To promote a public purpose of the political subdivision, a political subdivision may:
(1) lease property owned by the political subdivision to another political subdivision . . .;
. . . .
(b) In acting under Subsection (a), the political subdivision:
(1) shall determine the terms of the lease . . . so as to promote and maintain the public purpose;
(2) may provide for the lease of the property . . . at less than fair market value; and
(3) is not required to comply with any competitive purchasing procedure or any notice and publication requirement imposed by this chapter or other law.
Act of May 14,2007,80th Leg., R.S., H.B. 2618, § 1 (to be codified at TEX. LOC.GOV'T CODE ANN. § 272.005); see also TEX. CONST, art. Ill, § 52(a). Section 272.005 took effect immediately upon the Governor's approval. See H.J. of Tex., 80th Leg., R.S. 6652 (2007). As we have indicated, a municipality is a political subdivision of the state. SeeCity of Galveston,
Fourth, chapter 26 of the Parks and Wildlife Code protects public parks and recreational lands by regulating the use or taking of parkland, among other properties.3 See generally TEX. PARKS WILD. CODE ANN. ch. 26 (Vernon 2002). Under section 26.001 (a), a municipality may not approve the use or taking of parkland until the municipality has made certain determinations:
*Page 5A . . . municipality of this state may not approve any program or project that requires the use or taking of any public land designated and used prior to the arrangement of the program or project as a park . . ., unless the . . . municipality, acting through its duly authorized governing body or officer, determines that:
(1) there is no feasible and prudent alternative to the use or taking of such land; and
(2) the program or project includes all reasonable planning to minimize harm to the land, as a park . . ., resulting from the use or taking.
Id. § 26.001(a). The municipal governing body may make the required determinations only after publishing notice and holding a hearing "as required by this chapter." Id. § 26.001(b); see also id. § 26.001(c) (requiring the governing body or officer to consider "clearly enunciated local preferences"); id. § 26.002 (articulating notice requirements).4
The City is authorized to lease its property in accordance with statutory limitations. See Dallas Merck %
Under section
In addition, the City must comply with Parks and Wildlife Code chapter 26 if the lease will require a use or taking of parkland. Section 26.001 expressly applies to "any programor project that requires the use or taking of parkland and thus encompasses a lease. TEX. PARKS WILD. CODE ANN. § 26.001(a) (Vernon 2002) (emphasis added). As the Fort Worth court of appeals determined in 1990, section 26.001 "does not come into play where the project is of the same type or character as the use sought to be protected and the land is capable of being employed for that use after implementation of the project even as before." Persons v. City of FortWorth,
Because newly enacted Local Government Code section 272.005(b)(3) expressly abrogates statutory notice and publication requirements outside of chapter 272, we must consider whether, if both Local Government Code section 272.005 and Parks and Wildlife Code chapter 26 apply, the City must comply with chapter 26's notice requirements. See Act of May 14, 2007, 80th Leg., R.S., H.B. 2618, § 1 (to be codified at TEX. Loc. GOV'T CODE ANN. § 272.005(b)(3)). Section *Page 7 272.005(b)(3) does not define the phrase "notice and publication requirement." Id. While section 272.005's apparent purpose is to enable political subdivisions to lease property owned by another political subdivision without submitting to statutory competitive procurement requirements, section 272.005(b)(3) on its face does not limit itself to notice and publication requirements that are tied to competitive procurement requirements. See HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. H.B. 2618, 80th Leg., R.S. (2007) at 1-2; see also HOUSE COMM. ON COUNTY AFFAIRS, BILL ANALYSIS, Tex. H.B. 2618, 80th Leg., R.S. (2007) (stating that the bill would "allow counties to lease county-owned property to local, state[,] and federal government entities without the need for competitive bidding"). In our opinion, section 272.005(b)(3) refers to "notice and publication requirement[s]" like those found in competitive procurement statutes requiring a political subdivision to publish notice of a proposed transaction in a newspaper of general circulation published in the area. Act of May 14, 2007, 80th Leg., R.S., H.B. 2618, § 1 (to be codified at TEX. LOC. GOV'T CODE ANN. § 272.005(b)(3)); see, e.g., TEX. LOC. GOV'T CODE ANN. § 252.041(a) (Vernon 2005) (notice and publication requirement relating to a municipality's competitive sealed bidding procedure); id. § 262.025(a) (County Purchasing Act competitive bidding notice and publication requirements); cf. TEX. GOV'T CODE ANN. §§ 2051.041-.053 (Vernon 2000 Supp. 2006) (providing for notice by publication in a newspaper where a specific statute does not specify the manner of the publication). We do not construe section 272.005(b)(3) to apply to notice requirements that do not involve publication. See, e.g., TEX. GOV'TCODE ANN. § 551.041 (Vernon2004) (requiring the governmental body to notify the public of subjects to be discussed at a meeting).
Parks and Wildlife Code chapter 26 requires a political subdivision that is considering conveying parkland to provide two types of notice: (1) written notice "to the person, organization, department, or agency that has supervision of the land proposed to be used or taken"; and (2) notice to the public published in a qualifying newspaper of general circulation. TEX. PARKS WILD. CODE ANN. § 26.002(a), (c) (Vernon 2002). As we have construed section 272.005(b)(3), it abrogates chapter 26's requirement that the political subdivision notify the public of the contemplated taking of parkland by publication in a qualifying newspaper of general circulation.See id. § 26.002(c). On the other hand, section 272.005(b)(3) does not affect chapter 26's requirement that the political subdivision provide written notice to the entity that supervises the parkland. See id. § 26.002(a). Similarly, section 272.005(b)(3) does not abrogate chapter 26's hearing requirement, nor the requirement that the City determine that no "feasible and prudent alternative to the use or taking of [the] land" exists and that "the program or project includes all reasonable planning to minimize harm to the land, as a park, . . . resulting from the use or taking." Id. § 26.001(a) (Vernon 2002); seeid. § 26.001(b) ("finding required by Subsection (a) . . . may be made only after notice and a hearing").
In sum, the City may lease parkland to the District in compliance with Local Government Code section 272.005 and Parks and Wildlife Code chapter 26. If the lease complies with Local Government Code section 272.005, the City is not subject to chapter 26's requirement that the public receive notice in a qualifying newspaper of general circulation. We turn next to the school district's authority to enter the lease. *Page 8 2. A school district's authority
A school district's board of trustees is expressly authorized to acquire real and personal property and to "govern and oversee the management" of the district's public schools. TEX. EDUC. CODE ANN. §
A school district may not, however, enter a lease that commits future revenues unless specifically authorized by law. A school district's annual budget must "cover all . . . proposed expenditures . . . for the following fiscal year," and the approval of an expenditure exceeding the budgeted amount is a criminal offense. TEX. EDUC. CODE ANN. §§
Finally, with respect to the proposed lease, you ask about the District's authority to expend school district funds to construct a school and related facilities on leased property. See Request Letter,supra note 1, at 1. As this office recently has noted, a school district has express statutory authority to construct school buildings, and no statutory provision limits "a school district to constructing school district buildings on land owned by the school district in fee simple." Tex. Att'y Gen. Op. No.
B. The sale of parkland
Your remaining questions pertain to the City's authority to sell parkland to the District. See Request Letter, supra note 1, at 1 (questions 2-4). *Page 9
Section
And the City must comply with chapter 26 of the Parks and Wildlife Code — including the notice and publication requirements — if the sale "requires the use or taking of parkland. TEX. PARKS WILD. CODE ANN. § 26.001 (a) (Vernon 2002); see supra p. 6 (outlining determinations and procedures required by chapter 26). Section
A school district may not enter a lease that commits future revenues, but a school district may enter a long-term lease that allows the school district's board of trustees to terminate the lease at the end of each budget period or is conditioned on the school board's best efforts to obtain and appropriate sufficient funds for the contract, or both. The school district may construct a school and related facilities on the leased property.
A home-rule municipality may sell parkland to an independent school district for no less than fair market value. The municipality must comply with Parks and Wildlife Code chapter 26, including its notice and publication requirements, if the sale requires the use or taking of parkland.
Very truly yours,
GREG ABBOTT Attorney Genéral of Texas
KENT C. SULLIVAN First Assistant Attorney General
NANCY S. FULLER Chair, Opinion Committee
Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee
enter into a contract, lease, or agreement with any person relating to the management, operation, or maintenance of any . . . land or property of any other nature under the management and control of the board. Such a lease or agreement for the use of board properties by others may not exceed a term of 40 years.
TEX. LOC. GOV'T CODE ANN. § 306.038(b) (Vernon 2005). Section 306.038(b) on its face applies only to leases executed by a parks board. It does not apply to a home-rule municipality's authority to enter a lease relating to city-owned parkland, and you ask about only a home-rule municipality's authority in this regard. We do not consider in this opinion whether section 306.038(b) could be read to authorize a park board established under chapter 306 to lease property for the construction of a school building.
Texas Municipal League Intergovernmental Risk Pool v. Texas ... , 74 S.W.3d 377 ( 2002 )
City of Galveston v. State , 217 S.W.3d 466 ( 2007 )
El Paso County v. City of El Paso , 357 S.W.2d 783 ( 1962 )
R. L. Bowling v. City of El Paso , 525 S.W.2d 539 ( 1975 )
Bolton v. City of Waco , 447 S.W.2d 718 ( 1969 )
Persons v. City of Fort Worth , 790 S.W.2d 865 ( 1990 )
MJR's Fare of Dallas, Inc. v. City of Dallas , 792 S.W.2d 569 ( 1990 )
Walker v. City of Georgetown , 86 S.W.3d 249 ( 2002 )
State Ex Rel. Grimes County Taxpayers Ass'n v. Texas ... , 565 S.W.2d 258 ( 1978 )