Can a Texas junior college district transfer a museum it owns to a state agency, and under what authority?

Plain-English summary

The Star of the Republic Museum sits at Washington-on-the-Brazos, the site where the Texas Declaration of Independence was signed, and tells the story of the Republic of Texas. For years Blinn College District ran it. In 2019, the Legislature passed Senate Bill 2309, which added Government Code section 442.062 and moved jurisdiction over the museum and its contents to the Texas Historical Commission, while expressly keeping the District as the owner of the museum, the land, and the artifacts. The Commission's executive director, Mark Wolfe, asked the Attorney General whether the District could go a step further and actually donate, convey, and transfer the museum property to the Commission, given that section 442.062(b) says the District "maintains ownership."

The AG first read section 442.062 as a whole. Subsection (a) gave the Commission jurisdiction and operating responsibility; subsection (c) vested in the Commission any power or duty formerly held by other agencies; but subsection (b) carved out ownership, saying that "[n]otwithstanding" the jurisdiction transfer, the District keeps ownership of the museum, land, and artifacts. Reading "maintains" in its ordinary sense (to cause a condition to continue), the AG concluded that whatever ownership interest the District held continued in the District despite the jurisdiction transfer. The AG was careful to say it could not resolve the precise nature and extent of the District's title to specific parcels or individual artifacts, because determining real-estate title and untangling mixed fact-and-law questions is not something the opinion process does.

The harder question was whether the District had authority to transfer that property to the Commission. Section 442.062 itself neither authorized nor forbade such a transfer, so the AG looked at other statutes. It rejected two candidates. Local Government Code section 272.001(l) lets a political subdivision donate or sell land below market value, but only to another political subdivision, and the Commission is a state agency, not a political subdivision, a distinction the Texas Supreme Court spelled out in Guar. Petroleum Corp. v. Armstrong (state agencies have statewide jurisdiction and no taxing power; political subdivisions are local and can tax). Education Code section 130.0021 lets a junior college convey property below market value, but only to a university system, which the Commission is not. That left the District's general authority. Because a junior college district has the general authority of an independent school district (section 130.084(a)), the board of trustees can sell or dispose of property under Education Code sections 11.151(c) and 11.154(a). The catch is the Texas Constitution's gift clause, article III, section 52(a), which forbids a political subdivision from making a gratuitous gift of public property. A transfer survives the gift clause only if the District receives return consideration or the grant accomplishes a public purpose of the District with adequate controls. So the AG's bottom line: the District could convey the museum property to the Commission under sections 11.151(c) and 11.154(a), as long as the deal complied with article III, section 52(a).

Currency note

This opinion was issued in 2020. 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.

What the opinion meant for those who asked

The opinion was written for the Texas Historical Commission and Blinn College District as they worked out an interagency contract over the museum. For the District, it meant the proposed legal basis in the draft agreement (the Local Government Code donation provision) would not hold, and the workable authority was instead the school-trustee disposal statutes, used carefully. For both agencies, it meant any transfer had to be structured to satisfy the gift clause, so a bare gift of public property to the Commission was off the table unless the District received return consideration or the grant served a public purpose of the District with controls. And it meant the opinion did not, and could not, settle exactly what the District owned in each parcel and artifact; that depended on the prior grants and the facts, which the parties would have to sort out themselves.

Common questions

Q: Who owns the Star of the Republic Museum after Senate Bill 2309?
A: Blinn College District kept ownership of the museum, the land, and the artifacts. Senate Bill 2309 moved jurisdiction and operating responsibility to the Texas Historical Commission but, in Government Code section 442.062(b), left ownership with the District.

Q: Could the District just give the museum property to the Commission?
A: Not as a pure gift. The Texas Constitution's gift clause (article III, section 52(a)) bars a gratuitous donation of public property, so any transfer needed return consideration or a qualifying public purpose with controls.

Q: Why couldn't the District use the usual political-subdivision donation statute?
A: Because Local Government Code section 272.001(l) only authorizes donations to another political subdivision, and the Texas Historical Commission is a state agency, not a political subdivision.

Q: So what authority did the AG say the District could use?
A: The District's general school-district authority. Under Education Code sections 11.151(c) and 11.154(a), the board of trustees can sell or dispose of property, so the District could convey the museum property to the Commission if the transfer complied with article III, section 52(a).

Q: Did the AG decide exactly what the District owned?
A: No. The AG said the nature and extent of the District's title to specific real property and artifacts depended on the facts and prior grants, and that determining title is not a function of the opinion process.

Background and statutory framework

This opinion turns on the difference between jurisdiction and ownership, and on which Texas statute lets a junior college district convey public property to a state agency. Senate Bill 2309 (2019) created Government Code section 442.062, transferring jurisdiction over the Star of the Republic Museum to the Texas Historical Commission while subsection (b) preserved Blinn College District's ownership of the museum, land, and artifacts. The AG applied standard statutory-construction rules from TIC Energy & Chem., Inc. v. Martin (give effect to every provision), In re Ford Motor Co. (undefined words get their ordinary meaning), and Lippincott v. Whisenhunt (words omitted were omitted on purpose). On transfer authority, three statutes were in play: Local Government Code section 272.001(l) (political-subdivision-to-political-subdivision donations), Education Code section 130.0021 (junior-college-to-university-system conveyances), and the general school-district disposal power in Education Code sections 11.151(c) and 11.154(a), available to junior college districts through section 130.084(a). The state-agency-versus-political-subdivision line came from Guar. Petroleum Corp. v. Armstrong, and the Texas Historical Commission's status as a state agency from Government Code section 442.002(a). Overlaying all of it is the gift clause, article III, section 52(a), as construed in Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n and State ex rel. Grimes Cnty. Taxpayers Ass'n v. Tex. Mun. Power Agency: a grant of public property is permissible if it is not gratuitous, meaning the grantor receives return consideration or the grant serves the grantor's public purpose. The AG also flagged Property Code sections 80.001 through 80.008 (cultural-artifact ownership procedures) as relevant to sorting out title, while declining to resolve specific title questions itself.

Citations and references

Constitutional and statutory provisions:

• Tex. Gov't Code § 442.062 (Star of the Republic Museum jurisdiction and ownership); § 442.002 (Commission as a state agency)
• Tex. Educ. Code § 11.151, § 11.154 (board of trustees' power to sell or dispose of property); § 130.0021, § 130.084 (junior college authority)
• Tex. Loc. Gov't Code § 272.001 (political-subdivision donations)
• Tex. Const. art. III, § 52(a) (gift clause)

Key cases:

• Guar. Petroleum Corp. v. Armstrong, 609 S.W.2d 529 (Tex. 1980) (distinction between a state agency and a political subdivision)
• Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002) (gift clause; return consideration and public purpose)
• TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68 (Tex. 2016) (read the statute as a whole)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0344
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-03440.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 16, 2020

Mr. Mark Wolfe
Executive Director
Texas Historical Commission
Post Office Box 12276
Austin, Texas 78711-2276

Opinion No. KP-0344

Re: Whether Blinn College District may donate, convey, and transfer the Star of the Republic Museum to the Texas Historical Commission in light of section 442.062(b) of the Government Code (RQ-0358-KP)

Dear Mr. Wolfe:

You ask whether Blinn College District (the "District") may donate, convey, and transfer the Star of the Republic Museum (the "Museum") to the Texas Historical Commission (the "Commission") in light of section 442.062(b) of the Government Code.¹ The Museum, located at the Washington-on-the-Brazos Historic Site, where the signing of the Texas Declaration of Independence from Mexico occurred, commemorates the history of the Republic of Texas through its exhibits, collections, and programs concerning pre-1850 Texas.² Until recently, the District administered the Museum.³ However, in 2019, the Legislature transferred jurisdiction of the Museum to the Commission by enacting Senate Bill 2309.⁴ Senate Bill 2309 adds section 442.062 of the Government Code, which provides:

(a) The museum and its contents are under the jurisdiction of the commission. The commission is responsible for the preservation, maintenance, and operation of the museum.

(b) Notwithstanding Subsection (a), Blinn College District maintains ownership of the museum, the land on which the museum is located, and the artifacts in the museum.

(c) Except as provided by Subsection (b), any power or duty related to the museum formerly vested in any other state agency or entity is vested solely in the commission.

(d) The commission shall, in coordination with an advisory committee appointed by the board of trustees of the Blinn College District, promote the educational and public awareness programs at the museum, the Washington-on-the-Brazos State Historic Site, and the Barrington Living History Farm.

TEX. GOV'T CODE § 442.062. Senate Bill 2309, section 2 provides that "[o]n January 1, 2020, . . . all powers and duties of Blinn College District relating to the Star of the Republic Museum," specified funds for Museum administration, and all files and records regarding the museum are transferred to the Commission. Senate Bill 2309 § 2(a). "Notwithstanding any other law," however, the District "shall continue to perform functions and activities related to the Star of the Republic Museum until January 1, 2020, and the former law is continued in effect for that purpose." Id. § 2(b).

You state that the Commission and the District propose to enter into an interagency cooperation contract whereby the District will "donate, convey and transfer" the museum real and personal property to the Commission.⁵ Request Letter at 1. You ask whether subsection 442.062(b) precludes the District from transferring ownership of Museum real and personal property to the Commission. Id.

Courts construing a statute strive to ascertain and give effect to legislative intent as manifested in the statute's plain language. TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Courts "consider the statute as a whole, giving effect to each provision so that none is rendered meaningless or mere surplusage." Id. Subsection 442.062(a) of the Government Code transferred the jurisdiction over and management of the Museum and its contents to the Commission, along with responsibility for the Museum's preservation, maintenance, and operation. TEX. GOV'T CODE § 442.062(a); see also id. § 442.062(c) (providing that "any power or duty related to the museum formerly vested in any other state agency or entity is vested solely in the commission"). However, subsection 442.062(b) provides that "[n]otwithstanding Subsection (a), Blinn College District maintains ownership of the museum, the land on which the museum is located, and the artifacts in the museum." Id. § 442.062(a) (emphasis added). The statute does not define "maintains." See id. Courts typically give undefined terms in a statute their ordinary meaning. In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014). In this context, "maintains" ordinarily means "cause or enable (a condition or state of affairs) to continue." NEW OXFORD AM. DICTIONARY 1055 (3d ed. 2010); see also WEBSTER'S THIRD NEW INT'L DICTIONARY 1362 (2002) ("to persevere in : carry on : keep up : CONTINUE"). The nature and extent of the Museum's ownership interest in the real property and each artifact depends on the specific pertinent facts and the terms of prior grants to the District. See, e.g., Act of Apr. 24, 1969, 61st Leg., R.S., ch. 140, 1969 Tex. Gen. Laws 379 (directing the transfer of the "control and custody" of the Museum building and its contents); TEX. PROP. CODE §§ 80.001–.008 (providing procedure to determine ownership of certain cultural artifacts). The opinion process is not amenable to investigating and determining title issues concerning specific property. See Tex. Att'y Gen. Op. Nos. GA-1084 (2014) at 2 n.3 ("Determining real estate title is not a function of an attorney general opinion."); GA-0750 (2009) at 2 (stating that this office cannot investigate and resolve mixed questions of fact and law). However, a court would likely determine that subsection 442.062(b) provides for any ownership interest in Museum real property and artifacts that the District possesses to continue in the District despite the transfer of jurisdiction over the Museum to the Commission.

Section 442.062 does not specifically address the authority of the District to donate, convey, or transfer Museum property. See TEX. GOV'T CODE § 442.062. Rather, the statute provides for an ongoing relationship between the District and the Commission through which both entities will "promote the educational and public awareness programs at the museum, the Washington-on-the-Brazos State Historic Site, and the Barrington Living History Farm." Id. § 442.062(d). Courts "presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted." Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). Because section 442.062 neither specifically authorizes nor prohibits transfer of property by the District, we consider other potential sources of District authority to donate, convey, and transfer the property. See TEX. GOV'T CODE § 442.062(b).

You ask whether subsection 272.001(l) of the Local Government Code authorizes the District to donate, convey, and transfer the real and personal property to the Commission.⁶ Request Letter at 1. That subdivision provides:

A political subdivision may donate or sell for less than fair market value a designated parcel of land or an interest in real property to another political subdivision if:

(1) the land or interest will be used by the political subdivision to which it is donated or sold in carrying out a purpose that benefits the public interest of the donating or selling political subdivision;

(2) the donation or sale of the land or interest is made under terms that effect and maintain the public purpose for which the donation or sale is made; and

(3) the title and right to possession of the land or interest revert to the donating or selling political subdivision if the acquiring political subdivision ceases to use the land or interest in carrying out the public purpose.

TEX. LOC. GOV'T CODE § 272.001(l) (emphasis added). The District is a political subdivision possessing the authority to donate or sell for less than fair market value under the circumstances set forth in the statute. See Tex. Att'y Gen. Op. No. GA-0252 (2004) at 7. However, subsection 272.001(l) authorizes a conveyance under those circumstances only to another political subdivision. TEX. LOC. GOV'T CODE § 272.001(l). The Commission is a state agency, not a political subdivision. See TEX. GOV'T CODE § 442.002(a). The Texas Supreme Court has explained the difference between a state agency and a political subdivision:

A political subdivision differs from a department board or agency of the State. A political subdivision has jurisdiction over a portion of the State; a department, board or agency of the State exercises its jurisdiction throughout the State. Members of the governing body of a political subdivision are elected in local elections or are appointed by locally elected officials; those who govern departments, boards or agencies of the State are elected in statewide elections or are appointed by State officials. Political subdivisions have the power to assess and collect taxes; departments, boards and agencies do not have that power. Our examination of a number of statutes shows that the legislature has consistently recognized these distinctions between departments, boards or agencies on the one hand and political subdivisions on the other.

Guar. Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 531 (Tex. 1980). Thus, subsection 272.001(l) does not authorize the District to donate, transfer, and convey Museum real or personal property to the Commission.

Next, we consider the District's authority under chapter 130 of the Education Code, which governs junior college districts such as Blinn. See generally TEX. EDUC. CODE §§ 130.001–.355; see also id. § 130.168 (providing junior college service area of the District). Section 130.0021 addresses the authority of a public junior college district to donate, exchange, convey, or lease real property in certain circumstances:

A public junior college or a public junior college district may donate, exchange, convey, sell, or lease land, improvements, or any other interest in any real property for less than the fair market value of the real property interest if the donation, conveyance, exchange, sale, or lease is being made to a university system and the governing board of the public junior college or the public junior college district also finds that the donation, conveyance, exchange, sale, or lease of the interest promotes a public purpose related to higher education within the service area of the public junior college or the public junior college district.

Id. § 130.0021 (emphasis added). Section 130.0021 authorizes the District to donate, convey, exchange, sell, or lease real property for less than fair market value only to a university system, not to the Commission.

Finally, we consider the District's general authority to convey property as a junior college district. A junior college district possesses the general authority of an independent school district. Id. § 130.084(a). Subsections 11.151(c) and 11.154(a) of the Education Code authorize a board of trustees to sell or dispose of any property other than minerals. Id. §§ 11.151(c), .154(a). However, any conveyance must comport with the limitations of article III, subsection 52(a) of the Constitution. See TEX. CONST. art. III, § 52(a). Article III, subsection 52(a) prohibits a political subdivision from granting public property as a gratuitous donation. See Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002). A political subdivision's grant of property is not gratuitous if it receives return consideration. Id. Moreover, article III, subsection 52(a) does not prohibit a political subdivision's grant of property if it accomplishes a public purpose of the grantor political subdivision. Id.; see also State ex rel. Grimes Cnty. Taxpayers Ass'n v. Tex. Mun. Power Agency, 565 S.W.2d 258, 265–66 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ dism'd) (holding that article III, subsection 52(a) limits grants from one governmental entity to another). Further, if the District does not receive return benefit, the grant is prohibited by article III, subsection 52(a).

Accordingly, neither subsection 272.001(l) of the Local Government Code nor section 130.0021 of the Education Code authorizes the District to donate, convey, and transfer Museum real and personal property to the Commission. However, subsections 11.151(c) and 11.154(a) of the Education Code authorize the District to convey the Museum real and personal property to the Commission so long as the transfer complies with article III, subsection 52(a) of the Constitution.

S U M M A R Y

Senate Bill 2309 of the Eighty-sixth Legislature transferred the jurisdiction over and management of the Star of the Republic Museum and its contents, as well as all powers and duties of Blinn College District relating to the Museum, to the Texas Historical Commission. Subsection 442.062(b) of the Government Code continues the District's ownership of the real and personal property of the Museum. Neither subsection 272.001(l) of the Local Government Code nor section 130.0021 of the Education Code authorizes the District to donate, convey, and transfer Museum real and personal property to the Commission. However, subsections 11.151(c) and 11.154(a) of the Education Code authorize the District to convey the Museum real and personal property to the Commission so long as the transfer complies with article III, subsection 52(a) of the Constitution.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff
Acting Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee