I




                                                                      R-62


                T%ZE      A                              NEXRAI.
                              .OFTEXAS



                                  March 3, 1947

          Eon. Arthur B. Knickerbocker
          Adjutant General of Texas
          Austin, Texas          Opinion No. V-60
                                  Re:    Authority of the Adjutant   Gen-
                                         eral to cause to be offered
                                         for sale buildi-s and/or e-
                                         quipment received rrom ths
                                         United        Stat88   GOVerMI8nt
                                                                        ill
                                         lieu     of          or dan-
                                                        restoration
                                         age8 to leased prqperty, and
                                         to Us8 the proceeds or such
                                         sale to accomplish the phgs-
                                         ical restoration  of property,
                                         damaged while under lease to
                                         the United States  Government
          Dear 8ir:
    k,
     ..                Reference is made to your latter addressed to
          the Attorney    General under date of January 9, ~1947, con-
          cerning the fOlloWiI@ questions:
                    “(a) Does the Adjutant General hare the au-
               thority to cause to be offered for aale, in the
               manner prescribed by law, such buildings, instal-
               lations and 8qUipment~received frOm the Federal
               Government in lieu of restoration or damages to
               leased property, as are not required for use by
               the State, in a valw comparable to the eetimat8d
               oost OS the repair and/or rertoration of the
               buildings and installations which are to be ra-
               talned for the us8 of the State?*
                      “(b,) If the enswer to (a) above is in the
               litlrmdtlve, may the proceeds of such sales be
               dsposited with the Treasurer   0r the state of Tax-
               as, to be expended for the repair, restoration
               8nd Improvement or Camp Hulen, Camp Walters and
               Camp Mabrg, with the object of’placing thoe8
               armps in such cwdition    as to be beat uaeabls
               ior the purposes of the State, in connection
               with the administration and training    of the Tsx-
               a8 National Guard?*
                                                              ,




Han, Arthur B. Knickerbo,cker,Page 2, V-60


          We will consider the questions in the order
presented by your letter.
          It is settled as the law of this State that
*public officers and governmental and administrative
boards possess only such pcwers as are sxpressly cone
terred upon them by law or necessarily implied fr8m tbs.
powers so conferred.,” 34 Tsx. JuQ,, Seotien 67,Page 440L,
          Further, *statutes which prescribe and limit
the exercise of official duty are sttictlg construed in
respect to the $owers cenfsrred and the manner of their
exercise, and ruch powers are not to be enlarged by con-
structlon.w ‘34Tex. Jurb, Section 68, page 443.
          “It is equally well settled, however, that a
Isw which confers a power or imposes a duty upon an of-
ficer or board carries with it by implicatien the author-
ity to do suoh things  as are reasonably u8cessary to car-
ry into effect tllrpower grant8d or the duty imposed,”
34 Tex. Jur, I)Seotion 68, Page 444.,
         lThe~efPice of the Adjutant General is a crca-
tme   Oithe law. The duties and oowors of the DerSOn
holding such office are also defined by law,”  *ox%
Worth Cavalry Club, Inc. v. Sheppard, Comptroll~S3
9. w. (2) 660,666.
          A review of ArticlW 5787, $788, 5790, 5791,
5792, 5793, 5794 and 5798, Vernon’s Annotated Civil
Statutes, indicates 8ame are p8rtinent in dotermining
the powers expresslf conferred upon Ohe Adjutant Gen-
e-1 by statute.    We deem it uanecessary, and in the
interest of brevity, we wit2 not quote all of the above
referred to arti8les s However, the first paragraph of
Article 5790 is espec&r%iy  important in determining the
questicn at hand, and we quote therefrom:
           “The Adjutant General ehall be ?n control
      of the military department of this State, and
      subordinate only to the qovernor in matters per-
      taining to said Department, or the military forces
      of this State; and he shall perform such duties as
      the Governor may Prom time to time entrust to him,
      relative to the military commissions, the military
      forces) the military stores and supplies, or to
      other mstters respecting military affairs of this
      State; and he shall conduct the business of the De-
      partment in such manner as the Governor shall direst,
Hon. Arthur B. Knickerbocker, Page 5, V-60


     He shall have the custody and charge of all books,
     records, papers, furniturs, fixtures and other prop-
     erty relating to his Depatiment, and shall perform
     asnsaras oraaticable. such duties as nertafn to
     the Chief 'ofStair, the Military Secretary and other
     Chlers of Starr Departments, under the regulations
     and customs of the United States Army." (Emphasis
     supplied)
          A oareful study of the articles just referred
to fails to reveal any express language contained there-
in, authorizing the Adjutant General to sell property,
By the terms of the statute, the Adjutant General's ex-
pressed powers and duties with respect to property are
limited to *custody and charge."
          Further, construction of the above statutes,
together with departmental Appropriation Act (Acts 1925,
49th Leg. Ch. 378, p. El01 leads to no logical deduction
that the Adjutant General has implied powers, within the
reasonable limitations of such Appropriation Act, to sell
property belonging to the State, which will not be re-
quired for use by the State.
          We oonclude, therefore, that the Adjutant Gen-
eral has neither express nor implied power to sell any
property belonging to the State which shall not be re-
quired for use by the Adjutant GeneralPs Departmenta
          Article 666, Vernon's Annotated Civil Statutes,
1925, provides for the disposition of ell State property,
when it shall become unfit for use or shall be no longer
needed by any State department. We quote this article:
           "All property belonging to the state, re-
     gardless of where it is located, under the control
     of any department, commission, board or other
     state agency, with the exception of state eleemos-
     ynary institutions, colleges, and institutions of
     higher learning, when it shall become unfit for
           or shall be no longer needed, shall be
     zzded under the jurisdiction of the Board of
     Control, and the Board of Control shall sell such
       roperty after advertising it not less than four
     P4)  days in a newspaper in the county wherein the
     property is situated. Provided, however, that if
     no newspaper is published in the county wherein
     the property is situated, notice of safd aale
     setting out the time and place of sale and the
     property to be sold shall be posted in three (3)
Han, Arthur B. Knickerbocker, Page 4> V-M


    public plaoes,  one being in the court heuse in the
    county wherein the property is situated. Provided,
    however, that if the value of euoh personal  prq~
    erty is less than One Hundred (#lOCOOO) Dollars and
    not suffioient to justify the coti of advertisement
    in newspapers as outlined above, the Board of
    Oontrol may sell 8uah property in any manner
    that it deems for the best interest of the .etatep
    The money from the sale of suoh property, less the
    expense of advertising the sale, shsll be daposited
    in the State Treasury to the credit of the Oeneral
    Revenue Fund e And provided further, that any prep-
    erty pLaoed in the hands of the Board of Control,
    as outlined herein, msy be transferred by the Board
    of Contrml to any department, commission, boar6 or
    state agency in need of same, and the deblt and
    credit shall be made en the basis that suah prop-
    erty can be purchased in ths market at the time of
    the transfer, if a market @xi&s9 gnd if not, at
    its actual or intrinsfe value as set by t-heBoard
    of ControL. The Bosrd of Control shall make a
    written report to the Comptroller after each sale*
    The report shall fnolude the following items;
          *1. Mame of the newspaper and the dates of
     advertisement of notice of sale; or if posted, the
     date and place of posting0
          “2,   Each article reoeived0
          “30   The price for which each article was sold,
          -4, The name and address of the person to
     whom each article was sold,
          “This report shall be signed by the Board of
     Control and a member of the department) oommissfrn,
     board or state agency having oontnol of the property
     before saleO”
          Generally speaking, the word or words *property”
or “all property” is “nomen generalfssfmumn sna includes
both real and personal preperty D See: Words and Phrases,
;;c$ 34, po 405 to 408; Womaok v. Womaok, 172 SoWa (2)
      Notwithstanding th‘fsgeneral rule, it is our opin-
ion’that the intent of the Legislature, whioh shall gov-
ern In the construction and interpretation of statutes,
was to make Article 666, supra, applicable only to per-
sonal property, The bases for this conclusion are three-
iold, to-wit:
    Hon. Arthur B. Knickerbocker, Page 5, V-60


              (a) The Legislature, In writing the Act, used
    the words “provided, however, that If the value of such
    personal iroperty is less than $lOO.OO.v Had the LeF
    iature intended that the Article apply to real and pers-
    onal property, ana to make the #lOO.OO exceptfon applfca-
    ble to personal property, they would, in our opinion,
    have used the word *anyv.
              (b) In the second place, it appears that Artf-
    cle 066, supra, was Intended to apply only to personal
    property, because the Legislature used the word “article”
    in prescribing the iniorrmtion to be included in the re-*
    port of the Board of Control after sale. It is hardly
    logical to assume that the Legislature mould have used
    Fzyword “article” intending same to apply to real prop-
        0
              (c) A careful study of the statutes applicable
    to the Board of Control Pails to reveal any express or
    Implied authority on behalf oP said Bo%rd to execute deeds
    of oonveyance, transferring the title to real property,
    Title 20, Vernon’s Annotatea Civil Statutes, 1925.
               It is our opinion, therefore, that under the
    provisions of Artiole 666, supra, the Adjutant General
    .is authorized to place surplus personal property under
    the oontrol of his department, under the jurIsaictIon
    of the Board of Control, for disposal or sale in aooora-
    ance with the provisions of this article.
               This brings us to the question of whether or
    not the examples of surplus buildings and equipment enum-
    erated on Page 2 of your letter, above cited, shall be
    oonsidered as real or personal property* It Is our under-
    stanaing that, under the terme of the leaps wfth the Fed-
    eral Gove    ent , any bufldings erected by the Federal
    Governmen* ere to remain the property of the Government
    and oould ‘be removed by the Government at the expfratfon
    of the lease oontract.
               It is our opinion, however, that when this prop-.
    erty Is conlieyed by the Federal Government to the State
    of Texas I It beoomes the State’s property for all purposes,
    and the agreement by which this property maintained fts
    oharacter as personalty Is no longer effective. The ques-
    tion, therefore, of whether the property listed on page
    2 of your letter is personalty or realty In the hands
    of the State must be determined by the general rule of
    law applicable to ffxtures. “It Is a general rule that
?
Han, Arthur B. Knickerbocker, Page 6, V-60


whatever is fixed to the realty thereby becomes a part
of the soil and partakes of all its incidents and prop*
ertiesen 23 Ter. Jur, p6 375. “According to a leading
decision, the true criterion for determining whether a
ohattsl has become an immovable fixture consists in the
united application of the fallowing tests: First, Was
there been a real or constructive annexation of the ar-
ticle in question to the realty7 Second, Was there a
fitness or adaptation of such article to the uses or
purposes of the realty with which it is comneated? ThiHa
Was it the intention of the party making the anieration
that the chattel should baoome a permanent acoession to
the freehold?” 19 Tex. Jur. p0 707.
          In the instant case tho intention of the Fed-
eral Government at the time the improvements were made
was that such improvements should remain personalty and
be subject to removal as long as they were owned by the
Federal Government 0 However, the transfer of these fm-
provements to the State of Texas will effect a relin-
quishment of this contra& right and since the State of
Texas will own both the land and the improvements, there
is no provision in law or an outstanding right in any
third party which will prevent the improvements, which
are in fact ~annexed to the realty, from baaoming in law
a part of the land. The faot of being annexed has the
effect in law ot making an improvement a part of the re-
alty, unless there is some agreement, expressed or ir-
plied, between the Owner of the realty and the owner of
the improvement whioh bfnds the parties to consider the
improvements as personal property. 19 Tex. Jur, pQ 715,
36 O,J,S. po 917, “The building is deemed to be person-
al roperty during the life of the lease and becomes
reaP estate upon the expiration or surrender thereof
without removal .,* 22 American Jur, pa 702, In Glasgow
v0 John Hancock Mutual Life Insurance Corn7 ny
(2) 888, at page 892, affirmed 141 S. W. ft,);4:t7t9hew  D
Court of Civil Appeals said:
          “Appellants also assign error on the Potion bf
     the trial court, ip forecllosingthe deed of trust
     lien on the house and garage on lot seven (7)whioh,
     according to +he evidence and findings of the Jury,
     was the separate property of Mre, Glasgow, placed
     upon the land subsequent to the creation of the lion
     indebtedness, a   occupied by her as her home* It
     is doubtful whet
                    “%er the evidence sustains.the find-
     ings of the Jury; be that as it may, the improve-
     ments were on the lot at the time the ,insurance corn-
     pany extended the deed of trust lien on the property;

                                             -
                 1




                                         I
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    Hon. Arthur B, Knickerbocker, Page 7, V-60


         the company had no knowledge of the existence of
         the wife's ownership of the improvements, separate
         and distinot from her community interest in the
         realty; she and her husband were living on the prop-
         er+4 s and the improvements were permanent fixtures
         thereon. The house and garage being permanent fix-
         tures on the land, merged into the realty, and be-
         oame a part of it; there?ore, the trial court cor-
         reatly held that the improvements wore subject to
         the lien indebtedness,w
               What is or is not personal property will depend
    in each instance on the physical fact of whether or not
    it.is annexed to the realty. 36 C,J.SO 900, The Adgu-
    tant General has authority to declare the personal prop-
    erty surplus and by surplus is meant that property which
    Is surplus to the needs of the department for carrying
    on the purposes for which such camp or camps were trans-
    ,ferred to the State of Texas. The authority of the Adg-
    utant General is limited to placing such surplus person-
    al property under the jurfsdictfon of the Board of Con-
    trol for disposal or sale in accordance with Art. 666,
    supra.
               The improvements, whioh the Federal Government
     proposes to transfer to the State and which are annexed
    'to the realty at Camp Hulen, Camp Walters and Camp Mabry,
     nillbeoome by reason of such fact a part of the realty
     and can be disposed of only by the Legislature passing a
     law to that erfeat.
               With regard to your question (b]o above quoted,
    we think the language of Art,  666, supra, is too clear
    and unequivocal to admit of any other construction than
    that the proceeds realized from the sale of personal prop-
    erty under such statute shall be deposited with the State
    Treasurer to the credit of the General Revenue Fund. our
    answer to this question, therefore, is in the negative,
                              SUMMARY
                              --
               1. The Adjutant General of Texas has author-
          ity to place under the jurfsdictfon of the Board of
          Control for disposal or sale, pursuant to Article
          666, Vernonps Annotated Civil Statutes, surplus
          personal property at Camp Hulen, Camp Wolters and
          Camp Habry, which has become unfit for use or is
          no longer needed for carrying on the purposes for
          which such camp or camps were transferred to the
          State of Texas0 If such property is sold, the pro-
          ceeds shall be deposited with the State Treasurer
          to the credit of the General Revenue Fund.
Hon. Arthur B. Knickerbocker, Page B9 V-60


          2” The Adjutant General of Texas does
    not have authority to declare real_property
    as surplus and the Board of Control does not
    have authority to sell real property belong-
    ir~Eto the State of Texas9 under the authority
    of Art. 666, Verneups Annotated Civil Statutes,
    The buildings, installations, equipment and
    other property s considered personal ropertyTp
    constructed by the Federal Governmene on Camp
    Hulen, Camp Walters and Camp Mabry during the
    war’, and which it is contemplated will bo oon-
    veged to the State, will become ffxtures at
    that time, If they are annexed to land at the
    time of the transfer, and such improvements
    cannot then be sold without an Aat or the Legfs-
    lature to that effect,
                                 Yours very truly
                             A!Fl’OBltEYGENERAL OF TEXAS




                             -Charles     E, Pratt
                                         Assistant


                             APPROVED MARS 3 9 1947
                                          /I
                              2fc.L.Qi$iLdd
                             ATTORNEY GENERAL