Could the Texas Historical Commission waive the 180-day waiting period for altering, selling, leasing, or demolishing a historic courthouse?

Texas AG Opinion JM-822: Historic Courthouse Waiting Period

Plain-English summary

The executive director of the Texas Historical Commission asked whether the Commission could waive a 180-day waiting period protecting a courthouse that it had found historically significant.

Former Government Code section 442.008 required a county to notify the Commission at least six months before demolishing, selling, leasing, or damaging the historical or architectural integrity of a current or former courthouse. If the Commission found the courthouse worthy of preservation, the county could not take the proposed action until 180 days after receiving that determination.

The purpose of the delay was to give the Commission time to cooperate with local officials and interested people in trying to preserve the structure. The Commission could encourage preservation but could not permanently prevent the county's action.

Texas administrative agencies had only powers granted by statute or necessarily implied from their duties. JM-822 found no constitutional or statutory authority allowing the Commission to shorten the courthouse period.

The opinion contrasted section 442.008 with section 442.006, where the Legislature expressly authorized waiver of a waiting period for a structure designated as a Texas Historical Landmark. That contrast reinforced that no waiver existed for historic courthouses.

Currency note

This opinion was issued in 1987. Texas courthouse-preservation statutes, notice procedures, agency powers, penalties, and grant programs may have changed. Treat this page as historical context, not current preservation or property advice. Verify current law before altering, leasing, selling, or demolishing a current or former county courthouse.

Common questions

Could the Historical Commission permanently stop a county from demolishing a courthouse?

Not under the provision described in JM-822. The statute delayed the action and created time for preservation efforts; the opinion said the Commission could not ultimately prohibit destruction.

When did the 180-day period begin?

Under the quoted statute, it ran from the date the county received notice that the Commission had determined the courthouse had historical significance worthy of preservation.

Could the county perform ordinary maintenance during the process?

Yes. Section 442.008(c) allowed ordinary maintenance and repairs without notice to the Commission.

Why could the Commission not waive the period?

No statute granted that authority expressly or by necessary implication. An agency could not enlarge its own powers or nullify the Legislature's chosen waiting period.

Did the Legislature know how to authorize a waiver when it wanted one?

Yes. JM-822 pointed to section 442.006, which expressly authorized a waiver in a different historical-landmark process.

Background and statutory framework

Chapter 442 established the Texas Historical Commission's preservation duties, historical-marker work, archeological program, consumer-information responsibilities, civil penalties, and enforcement remedies.

The courthouse provision originated in a 1971 amendment prompted by the destruction of historically valuable county courthouses. Its bill analysis described the purpose as preserving courthouses with historic value.

JM-822 applied the settled rule that administrative agencies receive their powers entirely from legislation. They may exercise expressly granted powers and those necessarily implied, but they cannot create additional authority through their own orders.

Citations

Statutes and legislative material:

• Government Code sections 442.003, 442.005 through 442.009, 442.011, and 442.012
• Acts 1987, 70th Legislature, chapter 147, section 1, at 1010-19
• Acts 1971, 62d Legislature, chapter 496, section 1, at 1718
• House Bill No. 22 bill analysis, 62d Legislature (1971)

Cases:

• State v. Robison, 30 S.W.2d 292 (Tex. 1930)
• State v. Jackson, 376 S.W.2d 341 (Tex. 1964)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-822
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0822.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

November 10, 1987

Mr. Curtis Tunnell
Executive Director
Texas Historical Commission
P. O. Box 12276
Austin, Texas 78711

Opinion No. JM-822

Re: Whether the 180-day waiting period set forth in section 442.008, Government Code, may be waived (RQ-1282)

Dear Mr. Tunnell:

Section 442.008 of the Government Code sets forth the provisions governing the preservation of historic courthouses. You ask whether the 180-day waiting period prescribed in section 442.008 of the code, during which a courthouse designated by the Texas Historical Commission may not be sold or damaged, may be waived by the commission. We conclude that it may not.

Chapter 442 of the recently-codified Government Code sets forth the duties and authority of the Texas Historical Commission [hereinafter the commission]. Acts 1987, 70th Leg., ch. 147, § 1, p. 1010-19 (formerly codified as V.T.C.S. article 6145). The purpose of the commission is to "provide leadership and coordinate services in the field of historic preservation." Gov't Code § 442.003. Section 442.005 of the code sets forth the various powers and duties of the commission, which

shall furnish leadership, coordination, and services to county historical commissions, historical societies, and the organizations, agencies, institutions, museums, and individuals of this state interested in the preservation of historical heritage and shall act as a clearinghouse and information center for that work in this state.

Gov't Code § 442.005(a). The commission is required to "give direction and coordination to the state historical marker program," id. at § 442.006(a), and to "install markers recognizing districts, sites, individuals, events, structures, and objects significant in Texas or American history, architecture, archeology, or culture and shall keep a register of those markers," id. at § 442.006(b). The commission, together with the state archeologist, must direct the state archeological program, id. at § 442.007, encourage the preservation of historic courthouses, id. at § 442.008, and prepare information of consumer interest and accept and act upon consumer complaints, id. at § 442.009. Section 442.011 of the code provides: "A person who violates this chapter is subject to a civil penalty of not less than $50 nor more than $1,000 for each day of violation." And section 442.012 empowers the attorney general or any resident of this state to file suit in district court to restrain and enjoin a violation or threatened violation of the act.

Section 442.008 of the code sets forth the following:

Sec. 442.008. HISTORIC COURTHOUSES. (a) A county may not demolish, sell, lease, or damage the historical or architectural integrity of any building that serves or has served as a county courthouse without notifying the commission of the intended action at least six months before the date on which it acts.

(b) If the commission determines that a courthouse has historical significance worthy of preservation, the commission shall notify the commissioners court of the county of the fact not later than the 30th day after the date on which the commission received notice from the county. A county may not demolish, sell, lease, or damage the historical or architectural integrity of a courthouse before the 180th day after the date on which it received notice from the commission. The commission shall cooperate with any interested person during the 180-day period to preserve the historical integrity of the courthouse.

(c) A county may carry out ordinary maintenance of and repairs to a courthouse without notifying the commission. (V.A.C.S. Art. 6145, Sec. 14.) (Emphasis added.)

The commission was first created as a state agency in 1957. Acts 1957, 55th Leg., ch. 500, at 1460 (codified as V.T.C.S. article 6145). The predecessor statute to section 442.008 of the code was added by amendment in 1971. Acts 1971, 62d Leg., ch. 496, § 1, at 1718. The Bill Analysis accompanying the bill sets forth the following as background:

Recently, several county courthouses of historic value have been destroyed. This has come to the attention of and caused concern in not only the Historical Survey Committee, but also the Speaker's Committee on Historical Preservation.

The Bill Analysis succinctly set forth the purpose of the bill: "To provide for the preservation of courthouses with historic value." Bill Analysis to H.B. No. 22, 62d Leg. (1971) (on file in Legislative Reference Library). The commission cannot ultimately prevent or proscribe the destruction of historic courthouses, but it is clear that the statute was designed to delay such destruction, giving the commission the time to work with interested local officials and private persons to promote the preservation of such structures.

Generally, the powers of an administrative agency are derived entirely from legislative enactment. State v. Robison, 30 S.W.2d 292 (Tex. 1930); Railroad Commission v. Fort Worth & D. C. Ry. Co., 161 S.W.2d 560 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.). An agency has only those powers that are expressly granted to it by statute together with those necessarily implied from the authority conferred or duties imposed. State v. Jackson, 376 S.W.2d 341 (Tex. 1964); Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961). If the statutes do not grant an agency the power to do a thing, then it has no such power. Nueces County Water Conservation & Improvement District v. Texas Water Rights Commission, 481 S.W.2d 924 (Tex. Civ. App. - Austin 1972, writ ref'd n.r.e.). When the legislature acts with respect to a particular matter, the administrative agency may not so act with respect to the matter so as to nullify the legislative action even though the matter be within the agency's general regulatory field. Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex. 1968); State v. Jackson, 376 S.W.2d 341 (Tex. 1964). It may not enlarge its powers by its own orders. Railroad Commission of Texas v. Fort Worth & D. C. Ry. Co., supra. We have found no authority, either constitutional or statutory, which expressly or impliedly authorizes the commission to waive the 180-day waiting period set forth in section 442.008, Government Code. If the legislature had intended to authorize the commission to waive the 180-day waiting period set out in section 442.008, it could have done so. See, e.g., section 442.006 (authorizing the commission to waive the waiting period with respect to a structure designated "Texas Historical Landmark").

SUMMARY

The Texas Historical Commission is not authorized to waive the 180-day waiting period set forth in section 442.008 of the Government Code, governing the preservation of historic courthouses.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General