Judges: DAN MORALES, Attorney General of Texas
Filed Date: 7/9/1993
Status: Precedential
Modified Date: 7/6/2016
Honorable Roland Saul Criminal District Attorney Deaf Smith County 235 East Third, Room 401 Hereford, Texas 79045
Re: Whether the City of Hereford is authorized to convey a city park to the Deaf Smith County Hospital District (RQ-519)
Dear Mr. Saul:
On behalf of the Deaf Smith County Hospital District (the "hospital district"), you ask whether the City of Hereford (the "city") is authorized to convey a parcel of land to the hospital district. By way of background, you explain that the hospital district operates the Deaf Smith General Hospital (the "hospital") and that adjacent to the hospital is a one and a half acre parcel of land owned by the city. The property was deeded to the city to be used for a park for the benefit of the public. There are no improvements on the property. The hospital district "has determined that additional facilities are needed and . . . [t]he tract is the only location upon which the facilities could be constructed in the manner to best suit the [hospital district's] needs." In addition, you state that the hospital district has asked the city to make a gift of the land to the district, and that the district "anticipates that the [c]ity will find the paramount public use of the property to be the expansion of the [h]ospital and will convey the property to the [d]istrict for no cash consideration." In essence, you ask whether the conveyance would be prohibited by section
Section
(a) Except as provided by Subsection (b), the governing body of a municipality may sell and convey land or an interest in land that the municipality owns, holds, or claims as a . . . park. . . .
(b) Land owned, held, or claimed as a public square or park may not be sold unless the issue of the sale is submitted to the qualified voters of the municipality at an election and is approved by a majority of the votes received at the election1. . . .
(c) To effect the sale, the governing body shall adopt an ordinance directing the municipality's mayor or city manager to execute the conveyance.
(d) The proceeds of the sale may be used only to acquire and improve property for the purposes for which the sold property was used. Failure to so use the proceeds, however, does not impair the title to the sold property acquired by a purchaser for valuable consideration.
Local Gov't Code §
In Attorney General Opinion H-108 (1973), this office considered whether a city could convey parkland to a state agency under former article 1019, V.T.C.S., a predecessor statute to section
governing bodies with the power of eminent domain need not secure the consent of an electorate to obtain property they need for public purposes. . . . If the city and the county agree that the paramount need is a need for courthouse facilities, there is no difficulty. What Midland County might do by resort to condemnation proceedings, it can do by agreement with the City of Midland.
Attorney General Opinion
The hospital district has the power of eminent domain. See Acts 1971, 62d Leg., ch. 59, § 14, at 671 (Deaf Smith County Hospital District enabling act).2 We also note that the board of directors of the hospital district is authorized to accept donations, gifts, and endowments on behalf of the hospital district for hospital, medical and health care purposes by section 18 of the enabling act. Acts 1989, 71st Leg., ch. 874, § 4, at 3868 (amending Acts 1971, 62d Leg., ch. 59, § 18, at 673). Therefore, the reasoning of the foregoing attorney general opinions applies with equal force here. Accordingly, we conclude that, in order to convey the park to the hospital district, the city need not adhere to the procedures set forth in section 253.001.
Although we conclude that section
Finally, we note that chapter 26 of the Parks and Wildlife Code may apply to the proposed conveyance. Section 26.001(a) of this chapter states in pertinent part that a municipality 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 . . . resulting from the use or taking.
The foregoing findings may be made only after notice and a hearing. Parks Wild. Code § 26.001(b).4 Section 26.004 exempts certain land from these requirements. Although you have not asked about chapter 26 of the Parks and Wildlife Code and have not provided us with sufficient information to determine whether or not it would apply to the park at issue, you should be aware that this office has held that its predecessor statute applied to conveyances similar to the one you describe. See, e.g., Attorney General Opinions
Very truly yours,
DAN MORALES Attorney General of Texas
WILL PRYOR First Assistant Attorney General
MARY KELLER Deputy Attorney General for Litigation
RENEA HICKS State Solicitor
MADELEINE B. JOHNSON Chair, Opinion Committee
Prepared by Mary R. Crouter Assistant Attorney General
The district shall have the right and power of eminent domain for the purpose of acquiring by condemnation any and all property of any kind and character in fee simple, or any lesser interest therein, within the boundaries of the district necessary to the powers, rights, and privileges conferred by this Act, in the manner provided by the general law with respect to condemnation by counties . . . .