2%~     ATFCBIZNEX             GENERAL
                                  OF       TicXAS




.                               February     5,    1971


    Iion.J.W.Edgar                          Opinion NO. M-788
    cauniesiowr  of Education
    Teams Sducatbn Agency                   Ret     Whether ahomrule    city and
    201 Eaet llth Street                            an independent 8ahool district
    Awtin,     lbacarr 78701                        may exchange cmrtain landr
                                                    without advartidng tlaepro-
                                                    pomd 0s        and 'reaiving
    DearDoctbrMgarr                                 bide theruoti:
                                                       . ‘,,..
              Your recent litter r&uwting   the opinion of tbf8
    office concerning tlm referanoed matter Miatw, In pnrt, ae
                          ..
    follows:,

              l%,Dalhart   &dependent 8chool DlatrL6t
         on8  a 20-a-   tra&t of lhnd which it -pur&ased
         in 1965 for i&loo1 building pupone@. 'In 1993,
         tbe+iyofDalhartpuchas8d       atractof    land ...

                'The schbold%&rict   deukeatoexizhange
         about nine acre0 of it8 lOacre tract to tb8.
         cityfornineacrw       of ita trakt,a part ofwhich
         bas~bk@~ utid’as“(a) .ball  park.  The landq  If
         a-iii&d       -%' jtbb)y scbdl    ‘dibgict in embange,
         till    .ba wbd"ii*' a.Mi      ifor i new mlmol beil&ng.
                                               .,   .'.       :
                  al . . .


                  '3   am requwted   by the       Boata   of    Trwtw8   of
         ~Dalhat+I~~~~ntSchoolDi~trict                             toobtain
         an urgentl* needed opinion           from    the      offica    of   (the)
         Attorney General on the following aabdtted                       quwtiona
         appertaLni.ngto 8u*landsr

                 l(l) Legally, may the aity a uth o r ity
                                                      +nd (the)
                 m3mol board ea&anp    euch aforementioned lands
                 by appropriate ordinance hotim of the city
                 council and iw8olution of the'edhool board

                                       -3833-
    Hon. J. W. Edgar, page 2 .            (M-788)


              authorizing such 1andB exchange and execution
              of .deed(cr)
                         therefor, without adverticlingof
              the aaxe for sale nor using bid procedure?

              "In the event (1) ie anmered    in the affirmative%

              "(2) May there legally be an exchange of such
              lands without the city firathaving an election
              authorieing rale of same?*

              Youhava alrroinformed us that the tract of land owned
    by the Cityhaa been and ie now being used am a ball park, and
    you have so oartified to theae,fact8. We acceptthe      factual
    *tatexenta as true. This place0 the factual aituatioh Withixi
    the purview .of.hrticle 542151,Vernon's Civil Statutes.

              A memorandum brief submitted with your letter etatee
    that the City of Dalhart is a home rule city which adopted its
    Charter in 1960, and that Section6 70 and 153 of that Charter
    provide for public.males or leaee of property and in oertain
    cireunultances~foran election. In our opinion Section 70 of the
    Charter, which requirw  notice and bide, is not applicable in
    this aituationt howaver, Section 153 of the Charter prwiding
I   for a 30 day Waiting period and poamible election must be com-
    plied with.

              Article 5421c-12, Vernon's Civil Statutes, which pro-
    vides for publication of notice when a political subdivision of
    the &ate offers  land for sale is not applicable in the fact
    situation under wneideration.

                In your came, we find a proposed exchange by two po-
    litical a&divisions, each with power of eminent domain and con-
    demnation: cities: kt. 1107, 1109b, 1110, 1206t schools:
    Sec. 23.31; Texas Education Code.     Similar mituatione and
    question8 were answered in our Opinions C-434 (1965) and C-469
    (1965). The opinion8 refer to a PaBo Countv v. The Citv of El.
    &$,     35; ;;:.2d 783 (Tex.Civ.App. 1962), and pinowille Inde-
    P     ent c    1 District v. Crenshaw, 164 S.W.Zd 49 (Tex.Civ.App.
    1942,   error ref. wan.). Both caees dealt with a park area in-
    tended to bacome school property. Similar lrtatuterto Article
    5421r12 and your Charter provision Were under consideration.

                                 -3834-
Hon. J. W. Edgar, page 3             (M-788)


          The court in the Fl Paso case in effect held that al-
though a statute requiring appointment of a commieeioner to sell
county land at public auction and a statute relating to abandon-
m6nt of county parks are applicable wherever a political sub-
division, eubject to such statutes, desires to dispose of any of
ite land to an $..gy,                        neither etatute is
applicable where a wlitical subdivision with oower of eminent
d
5       nd   n    ation
                           ,.'
eu
WL   ve                       and to reach an agreement as to
change of public use.

          The L(inaevillQcase, eupra, held in effect that a city
park devoted to public use could be taken fa another public use
without bide.and,zonverted to public school use, whee the city
and school authorities determined that its use for school pur-
poses was ne+eeaa?y and that it was not-practical or possible
to use any othh property.

          However, Article 54216, eupra, enacted fn 1969, in its
Section 1, read6 as fdllwer

         *Ho department, agency, political subdivision,
    county, or municipality of this State shall apprwe
    any program or project that requires the treeor
    taking of any public land designated and utilized
    prior to the arrangement of such program or project
    as a park, recreation area, scientific area, wild-
    life refugei  or historic site, unless such depart-
    ment, agency, political eubdivieion, county or mu-
    nicipality,,acting thr%gh its duly authorized
    governing body.or'officer, shall determine, after
    notice and a public hearing as required herein,
    that .(l) there is no feasible and prudent alterna-
    tive to the use of taking of such land, and (2)
    such program or project includee all reasonable
    planning to minimize harm to such land, as a park,
    recreation area, scientific area, wildlife refuge.
    or historic site, resulting from such use or takingr
    clearly enunciated local preferences shall be con-
    sidered, and the provisions of the Act do,not con-
    stitute a mandatory prohibition against the use of
    such area if the findings are made'that justify the
    approval of a program or project.
                            -3835-
Hon. J. W. Edgar, page 4               (M-.788)



          Section 2 of this Article preeaibee publication pro-
cedures, and Section 3 prwidee that judicial review is hamed
30 days after the aotion is announced.

          Dalhest'e nine acre tract beAng a ball park, clearly
Article 542lq would apply.

          You aretherefore  advised that the anevmrtoyour   two
~eetione is *yes', but the Piope+d ~oxchange of property is
subject to the notice and bearing prwieione preeaibed by
Article 542lq, and the neceeeary findings thm.




          Dnder the fact situation, anexchangebetween
     theCityofDalhert,    ahome rule city, andDalhart
     Inde@end+ntSchoolDietrict of r~leetateueed      by
     the city for public park purpoeee and realty owned
     by the I~~~ent8~~lDi~~ic+.raquiree          the pub-
     licati~bf   notice and public hearing under Cuticle
     5421q, V.C.S.

          Article 5421c-12, V.C.S., which require8 notice
     and bide, is not appliceblet but Section 153 of tha
     Charter of the City of Dalhart must be camplied with.




                                            neral   of Teams

prepared   by Vim8 Taylor
bei8tant    m5maney General

AFFRovsDr
OPINIOM ca4MITTBE

Kerns Taylor, Chairmen
W. B. Allen, Co-Chairmen

                              -3836-
  Hon. J. W. Edgar, page 5            (M-788)



 Arthur Sandlin
 Pat Bailey
 Ben Harrison
 Austin Bray

~MMDEF.GRIE+FIS
 Staff Legal Aeefetant

 ALFRmwAIaR
 Executive Aeeietant

 Ho&A WRITB
 F-et  Aseietent




                             -3837-