Do neighborhood deed restrictions apply to land a Texas public university acquired by purchase or condemnation?

TX AG Opinion GA-0249: Deed Restrictions vs University

Plain-English summary

Texas Southern University's Board of Regents asked whether deed restrictions filed against the Tierwester Oaks subdivision plat in Harris County, including restrictions on apartment construction, applied to University-owned land within that subdivision. The University had acquired the property by purchase and condemnation and was building privatized student housing on it. A neighborhood civic association had raised objections, and the City of Houston had already told the University it would not try to enforce any deed restriction against the University's right to acquire and hold the property.

The opinion concluded the deed restrictions did not apply. Texas courts have repeatedly held that deed restrictions and restrictive covenants do not bind a governmental entity, especially one with the power of eminent domain, when the entity acquired the property by purchase or condemnation. The opinion found no reason that outcome should differ just because the property would be used for privatized student housing rather than a more traditional government use; the University had determined the housing served the public purpose of housing its enrolled students, and lease proceeds from the private housing operator would go into the University's general fund under the Education Code. The opinion also declined to wade into a civic association's factual objections to the University's use of the property, since the AG opinion process cannot resolve disputed facts and had to accept the University's account of the situation.

Currency note

This opinion was issued in 2004. 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.

Who this opinion affected (as of 2004)

Texas Southern University: The opinion confirmed the University could proceed with constructing privatized student housing on the Tierwester Oaks property without the subdivision's deed restrictions on apartment construction applying, because the University had acquired the land by purchase and condemnation as a governmental entity.

The Tierwester Oaks Civic Association and neighboring property owners: The opinion meant the subdivision's recorded deed restrictions could not be used to block or limit the University's construction on the land, even though the association had raised objections about the University's use of the property; the opinion did not resolve, and said it could not resolve, the association's underlying factual claims.

Other Texas public universities and governmental entities holding condemned or purchased land: The opinion reaffirmed the general rule that private deed restrictions filed against a subdivision do not bind a governmental entity's use of property it acquired by purchase or condemnation within that subdivision.

Common questions

Can a homeowners' association or civic group use recorded deed restrictions to stop a Texas public university from building on land it owns in their subdivision?
Not according to this 2004 opinion, if the university acquired the land by purchase or condemnation. The opinion concluded that established Texas case law treats deed restrictions as unenforceable against a governmental entity's use of property it acquired that way, particularly when the entity holds condemnation power.

Did it matter that the university was building privatized student housing rather than a traditional campus building?
No. The opinion found no authority suggesting the analysis would change because the property was being used for privatized student housing, especially since the university had determined the housing served the public purpose of housing its own enrolled students and lease proceeds were required by statute to go into the university's general fund.

Why didn't the opinion address the civic association's specific objections to the university's plans?
Because the attorney general opinion process cannot resolve disputed facts. The opinion noted that a civic association brief raised numerous factual issues about the university's use of the property, but that this office had to rely on the requesting governmental body's account of the facts rather than making its own factual findings.

Background and statutory framework

Texas Southern University, a statewide general purpose institution of higher education located in Houston, had acquired property within the Tierwester Oaks subdivision through purchase and condemnation. The property was subject to deed restrictions filed with the subdivision plat in Harris County, including restrictions on apartment construction. Under the Education Code, the University's Board of Regents may acquire real property "necessary or convenient" to the purposes of state-supported institutions of higher education by purchase, exchange, or otherwise, including by condemnation, and may lease University-owned land, with the proceeds required to be added to the University's general funds.

The opinion grounded its conclusion in a line of Texas cases holding that deed restrictions and restrictive covenants do not apply to governmental entities, particularly those with condemnation authority, with respect to property acquired by purchase or condemnation. Wynne v. City of Houston held that no private contract could restrict a municipality's authority to build and maintain fire stations. Deep East Texas Regional Mental Health and Mental Retardation Services v. Kinnear held that restrictive covenants must yield to the state's exercise of its police power. Fox v. Boyd, relying on Wynne and other authority, concluded that restrictive covenants cannot be enforced against a governmental body with condemnation power. City of River Oaks v. Moore held more broadly that deed restrictions do not bind the state or its political subdivisions. Applying these cases, the opinion concluded that the Tierwester Oaks deed restrictions did not apply to the University's property, and that using the land for privatized student housing, rather than a traditional university building, did not change that result given the University's determination that the housing served a public purpose tied to its educational mission.

The opinion expressly limited its answer to property acquired by a governmental entity through purchase or condemnation and did not attempt to resolve the factual disputes a neighborhood civic association had raised about the University's use of the property, citing the well-established principle that the attorney general opinion process cannot find facts or resolve contested factual questions.

Citations

Statutes:

• TEX. EDUC. CODE ANN. §§ 106.01-.02 (Vernon 2002)
• TEX. EDUC. CODE ANN. § 106.11
• TEX. EDUC. CODE ANN. § 106.35(a), (c)
• TEX. EDUC. CODE ANN. § 106.35(b) (Vernon 2002)

Cases:

• Wynne v. City of Houston, 281 S.W. 544 (Tex. 1926) (per curiam)
• Deep E. Tex. Reg'l Mental Health & Mental Retardation Servs. v. Kinnear, 877 S.W.2d 550 (Tex. App.-Beaumont 1994, no writ)
• Fox v. Boyd, 400 S.W.2d 946 (Tex. Civ. App.-El Paso 1966, no writ)
• City of River Oaks v. Moore, 272 S.W.2d 389 (Tex. Civ. App.-Fort Worth 1954, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0249
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0249.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 13, 2004

Mr. J. Paul Johnson, Chair
Board of Regents
Texas Southern University
3100 Cleburne Avenue
Houston, Texas 77004

Opinion No. GA-0249

Re: Whether certain deed restrictions apply to property owned by Texas Southern University, on which the university is constructing privatized student housing (RQ-0199-GA)

Dear Mr. Johnson:

On behalf of Texas Southern University (the "University"), your general counsel has asked whether certain deed restrictions apply to University-owned property, on which the University is constructing privatized student housing.[1]

We understand that the University acquired property in the Tierwester Oaks subdivision within the City of Houston through purchase and condemnation.[2] The property appears to be subject to deed restrictions filed in Harris County with the Tierwester Oaks subdivision plat, including restrictions upon apartment construction within the subdivision.[3] We limit our response to restrictions on property acquired by a governmental entity by purchase or condemnation.

The University is a statewide general purpose institution of higher education located in the city of Houston. See TEX. EDUC. CODE ANN. §§ 106.01-.02 (Vernon 2002). The University's governing body, the board of regents, see id. § 106.11, may acquire, "by purchase, exchange, or otherwise" (including by condemnation), any real property "necessary or convenient" to carry out "the purposes of state-supported institutions of higher education"; the board also may lease any University-owned land. Id. § 106.35(a), (c). The proceeds from any lease of land "or other real property" must be added to the University's general funds. Id. § 106.35(b).

Several judicial decisions conclude that deed restrictions and restrictive covenants do not apply to a governmental entity, particularly one with authority to condemn, with respect to property the governmental entity has acquired by purchase or condemnation. See Wynne v. City of Houston, 281 S.W. 544, 544 (Tex. 1926) (per curiam) (concluding that no contract could restrict a municipality's authority to construct and maintain fire stations); Deep E. Tex. Reg'l Mental Health & Mental Retardation Servs. v. Kinnear, 877 S.W.2d 550, 560 (Tex. App.-Beaumont 1994, no writ) (concluding that restrictive covenants "must yield to the exercise of the state's legitimate police power"); Fox v. Boyd, 400 S.W.2d 946, 949-50 (Tex. Civ. App.-El Paso 1966, no writ) (concluding, based upon Wynne and other cases, that restrictive covenants cannot be applied against a governmental body with authority to condemn); City of River Oaks v. Moore, 272 S.W.2d 389, 391 (Tex. Civ. App.-Fort Worth 1954, writ ref'd n.r.e.) (concluding that deed restrictions are not binding on the state or a subdivision thereof). Based on the holdings in these cases, we conclude that deed restrictions do not apply to University-owned property in this situation.

We have found no authority indicating that the conclusion would be different because the University-owned property is used for privatized student housing. The University has determined that the housing, when constructed, "will serve a public purpose directly related to the performance of the University's duties and functions, specifically, to house students enrolled at the University." Request Letter, supra note 1, at 2. Presumably, lease payments the University receives from the private entity controlling the housing will be deposited into the University's general fund, in accordance with section 106.35 of the Education Code, which requires lease proceeds to be added to the University's general funds. See TEX. EDUC. CODE ANN. § 106.35(b) (Vernon 2002).

A brief we have received raises numerous fact issues regarding the University's use of the property and the purported public purpose. See generally Tierwester Civic Association Brief, supra note 2. This office cannot resolve fact questions. See Tex. Att'y Gen. Op. No. GA-0156 (2004) at 10 (stating that fact questions cannot be answered in the opinion process). We assume, therefore, that the University, as the requesting governmental body, has set forth a correct and complete version of the facts. Cf. Tex. Att'y Gen. ORD-609 (1992) at 5 (stating that, where this office may not resolve fact issues under the Open Records Act as a matter of law or from the face of the documents, we "must rely on the representations of the governmental body requesting our opinion").

SUMMARY

Deed restrictions do not apply to property owned by Texas Southern University, which the University acquired by purchase or by condemnation and on which privatized student housing is being constructed.

Very truly yours,

Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Lynn Rodriguez, General Counsel, Texas Southern University, to Nancy Fuller, Chair, Opinion Committee, Texas Attorney General's Office, at 1 (Mar. 17, 2004) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See Telephone conversation with Lynn Rodriguez, General Counsel, Texas Southern University (June 22, 2004); Letter from Lionell Howard, President, Tierwester Civic Association, to Nancy Fuller, Chair, Opinion Committee, Texas Attorney General's Office (May 18, 2004) (on file with the Opinion Committee) [hereinafter Tierwester Civic Association Brief]; Request Letter, supra note 1, at 1. The City of Houston, which has jurisdiction over the property, has advised the University that it "will not enforce any deed restriction that purports to prohibit or even restrict the [University's] right to acquire and hold real property." Letter from Anthony W. Hall Jr., City of Houston Attorney, to Dr. Priscilla D. Slade, President, Texas Southern University (Mar. 4, 2003) (on file with the Opinion Committee); accord Letter from Arturo G. Michel, City of Houston Attorney, to Nancy Fuller, Chair, Opinion Committee, Texas Attorney General's Office (received May 5, 2004) (on file with the Opinion Committee). In addition, in February 2003 an attorney in the Transportation Division of this office advised the University that the application of deed restrictions against a governmental entity is "deemed contrary to public policy and void." Memorandum from Randall M. Ward, Senior Attorney, Transportation Division, Texas Attorney General's Office, to Lynn Rodriguez, General Counsel, Texas Southern University (Feb. 28, 2003) (on file with the Opinion Committee).

[3] See Declaration and Petition for the Modification of, and Addition to, Restrictions for TIERWESTER OAKS, attached to Request Letter, supra note 1.