Can a Texas city give a public park to a hospital district without holding an election?

Plain-English summary

The City of Hereford owned a small parcel, about an acre and a half, that had been deeded to it for use as a public park. Right next door, the Deaf Smith County Hospital District ran the local hospital and wanted that land to build an expansion. The district asked the city to simply give it the property for free, and the county's district attorney asked the Attorney General two things: did state law force the city to hold a public vote before parting with parkland, and did the state constitution's ban on gifts of public property block the deal?

The Attorney General gave a mixed answer. On the election question, the answer was no, the city did not have to hold one. The usual rule is that a city cannot sell a park without putting the sale to the voters. But there is a long-standing exception when the buyer is a government body that has the power of eminent domain, meaning it could condemn and take the land anyway. The hospital district had that power, so making it go through a condemnation lawsuit just to reach the same result would be pointless. The district was also allowed to accept gifts for hospital purposes.

The "free" part was the problem. A 1985 statute says that when a city hands land to a government entity with eminent domain power, it can skip the public notice and bidding, but it still cannot convey the land for less than fair market value, and the value is set by an appraisal the city obtains. So the city could sell or transfer the park to the district without an election, but it could not give it away for nothing. The Attorney General also flagged that a separate chapter of the Parks and Wildlife Code, which protects designated parkland and requires findings after notice and a hearing before parkland is used for another project, might apply, though there was not enough information to say for sure.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Confirm the current text of Local Government Code sections 253.001 and 272.001 and Parks and Wildlife Code chapter 26 before relying on anything described here.

Background and statutory framework

Local Government Code section 253.001 lets a municipality sell land it holds as a park, but subsection (b) bars the sale of a public square or park unless the issue is submitted to the voters and approved at an election. Article III, section 52 of the Texas Constitution bars a city from lending its credit or granting public money or a thing of value to any individual, association, or corporation.

The Attorney General relied on a line of its own opinions reading an eminent-domain exception into the predecessor parkland statute (former article 1019, V.T.C.S.). In Attorney General Opinion H-108 (1973) and Attorney General Opinion H-1256 (1978), the office concluded that the election and procedural restrictions did not apply when the grantee was a governmental body with the power of eminent domain over the property, because such a body need not secure voter consent to obtain property it needs for a public purpose; what it could do by condemnation it could do by agreement. Those opinions drew on Kingsville Indep. Sch. Dist. v. Crenshaw and El Paso County v. City of El Paso. Because the Deaf Smith County Hospital District had the power of eminent domain under its 1971 enabling act, and its board could accept gifts for hospital purposes, the AG concluded the city did not have to follow section 253.001's election procedure.

The conveyance still ran into Local Government Code section 272.001, enacted in 1985 after those earlier opinions. Subsection (a) generally requires notice and competitive bidding before a political subdivision sells or exchanges land. Subsection (b)(6) exempts a real property interest conveyed to a governmental entity with eminent domain power from that notice-and-bidding process, but subsection (b) also provides that such land may not be conveyed for less than fair market value, with the value fixed by an appraisal the owning subdivision obtains, which is conclusive. So the city could convey the park without an election or bidding, but not gratuitously. The opinion added that chapter 26 of the Parks and Wildlife Code, which restricts the use or taking of designated parkland unless the governing body makes specified findings after notice and a hearing (section 26.001, with exemptions in section 26.004), might also apply, though the AG lacked enough information to decide.

Citations

• Local Gov't Code § 253.001 (municipality may sell parkland only if the sale is approved by the voters at an election)
• Local Gov't Code § 272.001 (notice and bidding before a political subdivision sells or exchanges land); § 272.001(b)(6) (exemption for a real property interest conveyed to a governmental entity with eminent domain power; such land may not be conveyed for less than fair market value, set by a conclusive appraisal)
• Tex. Const. art. III, § 52 (prohibition on grants of public money or things of value)
• Parks & Wild. Code § 26.001 (municipality may not approve a project using designated parkland absent findings, made after notice and a hearing, that there is no feasible and prudent alternative and that harm is minimized); § 26.004 (exemptions)
• Kingsville Indep. Sch. Dist. v. Crenshaw, 164 S.W.2d 49 (Tex. Civ. App.-San Antonio 1942, writ ref'd w.o.m.)
• El Paso County v. City of El Paso, 357 S.W.2d 783 (Tex. Civ. App.-El Paso 1962, no writ)

Common questions

Does a Texas city have to hold an election before selling a park?
Usually yes, under Local Government Code section 253.001. But the Attorney General concluded the election requirement did not apply here because the buyer, a hospital district, had the power of eminent domain, so it could obtain the land by condemnation anyway.

Could the city just give the park to the hospital district for free?
No. Even though the election and bidding rules did not apply, the Attorney General concluded that Local Government Code section 272.001 barred the city from conveying the land for less than its fair market value, which had to be set by an appraisal the city obtained.

Why did eminent domain matter?
Because a governmental body that can condemn property does not need voter approval to acquire land it needs for a public purpose. The Attorney General reasoned that what the hospital district could accomplish through a condemnation lawsuit, the city and district could accomplish by agreement, without an election.

Did the Parks and Wildlife Code affect the deal?
Possibly. The Attorney General noted that chapter 26 of the Parks and Wildlife Code, which requires specific findings after notice and a hearing before designated parkland is used for another project, might apply, but said there was not enough information to decide whether it covered this particular park.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0232
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0232.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 9, 1993

Honorable Roland Saul
Criminal District Attorney
Deaf Smith County
235 East Third, Room 401
Hereford, Texas 79045

Opinion No. DM-232

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 253.001 of the Local Government Code or article III, section 52 of the Texas Constitution.

Section 253.001 of the Local Government Code provides in pertinent part:

(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 election. . . .

(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 § 253.001 (footnote added). Article III, section 52 of the Texas Constitution provides that a city is not authorized "to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever."

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 253.001 of the Local Government Code. This office concluded that the restrictions and procedures set forth in article 1019 were inapplicable "where the proposed grantee is . . . an agency having powers of eminent domain over the property involved," relying upon Kingsville Indep. Sch. Dist. v. Crenshaw, 164 S.W.2d 49 (Tex. Civ. App.-San Antonio 1942, writ ref'd w.o.m.), and El Paso County v. City of El Paso, 357 S.W.2d 783 (Tex. Civ. App.-El Paso 1962, no writ). Attorney General Opinion H-108 (1973) at 2-3. Similarly, in Attorney General Opinion H-1256 (1978), this office considered whether the City of Midland could donate a street right-of-way to Midland County under the same provision. With respect to article 1019, this office stated that

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 H-1256 (1978) at 2 (citations omitted). The opinion concluded, "If the city and the county reach agreement respecting the paramount public use of the property, and if the exchange is made for an adequate consideration or to accomplish a proper public purpose, we believe a transfer of the property to Midland County without an election would probably be upheld by the courts." Id.

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). 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 253.001 of the Local Government Code is inapplicable, we believe that a provision enacted in 1985, some years after the foregoing attorney general opinions were issued, precludes the city from gratuitously conveying the property. See Local Gov't Code § 272.001(b)(6); Acts 1985, 69th Leg., ch. 367, at 1440. Section 272.001, subsection (a) of the Local Government Code generally requires that before land owned by a political subdivision of the state may be sold or exchanged, notice of the land for sale or exchange must be published and bids must be accepted. Local Gov't Code § 272.001(a). Subsection (b) provides that these notice and bidding requirements do not apply to certain types of land and real property interests, including a "real property interest conveyed to a governmental entity that has the power of eminent domain." Id. § 272.001(b)(6). Subsection (b), however, also makes clear that such land and interests "may not be conveyed, sold, or exchanged for less than the fair market value of the land or interest." Id. § 272.001(b). It further provides that "[t]he fair market value is determined by an appraisal obtained by the political subdivision that owns the land or interest, and the appraisal is conclusive of the fair market value of the land or interest." Id. § 272.001(b). Accordingly, we conclude that the city is prohibited from conveying the property to the hospital district for less than fair market value.

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 provides 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, 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). 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 presented 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 MW-471 (1982); H-108 (1973); M-788 (1971).

SUMMARY

In order to convey a city park to the Deaf Smith County Hospital District, the City of Hereford need not adhere to the procedures set forth in section 253.001 of the Local Government Code. Section 272.001 of the Local Government Code, however, prohibits the conveyance of the land to the hospital district for less than fair market value. In addition, chapter 26 of the Parks and Wildlife Code may apply to the proposed conveyance.

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