Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Xonorsble Clsrk C. l@t?n, EXeautlYe Seam Texas Aatlonal Quard-Armory Board ROUU 1603 - Seoond Xfttlonal Bank Build- I.. Rouston (zone 2), Texea <’ \

Dear Sir:

letter of ot this depart- . ‘kp quote the body of your

e questiona are the follovlng

&Zhap&r 1. Title 8UIlitla’ p, 486, G.L. 06 Is& Art, 5790. nAu~orlzlng the Adjutant General to execute In behalf of the atate a8 Lessee, leasee and sub- leases vith Texas National Guard Armory Board and to renev such leases and sub-leases fran time to tlm?.

520 :lorable Clark C. Wren, Executive Seoretary, Page 2

"Chapter 2. auprs~pp 487 et seq. (The Arnrory Board Aot) ‘Creating the Anuory Board an s body {olltlo and corporate end providing that it shall hare aharge of the acquisItIOn, oon8tructlon, rental, control, maintenance and operation of all- .wl Guard Anuorlcr~ etci ‘poseesr all pavers necessary and convenient for the aaoompll&nnent of such duty’ etc. (Sea 2); ‘enter Into aontraots h oonnectlon vlth any matter vlthln the objoots, purpores or dutleo of the Board’ (Sec. 2b) f *ao- qulre, by gift or purchase, property of any end every deeoriptlon, real, personal or mixed lnolud- lng leasehold estster (Sea 2f); lease and sub- lease its roperty and pledge the revenues there- 0S (Sea 2gP i borrow money and issue bonds and bther evidences of Indebtedness secured by a pledge of the revenuea of Its property etc. (Se0 2h) f exe- cute and deliver lesaes or sub-lessas demising snd leasing to the State of Texsr$ determIne the term of suoh leasea; aud providing .that the lav requiring notice and aompetltlve blds,ahall not 1s to leasing or sub-leasing of auoh property. It I iddthatthe B rd halldt the &%&n&i of renta?to :e paIdebt<he State and, manifestly, there Is left to the Board the right and duty of determining the amount of rental to be paid by the state vlthin the yardstlok 6et out In the Statuto (Sec. 21). Section 3 stlp- ulater that, vhen any of the property ovned by the Board shall be fully paid for, the property is to be oonveyed by the Board to the St&e. . “8. 8. HO. 266 of the 48th Legislature, ap- proved May 7, 1943 direotlng all agenolas of the State to submit requesta for rental speoes to the State Board of Control eta. and purporting to em- power the Board of Control to determine vhether or not such space Is needed. It should be noted thst this Act does not provide as to vhat la to happen If its provisions am not cornplied vlth nor deny that paymenta be made on rental contraots made without ccunpll.anae with the Aot.

. 52 1. Honorable Clark C. Uren, Exeoutlve Beoretary, Page 3

“9. B. No. 29 OS the 48th Legislature ap- proved May 8, 19i: 3 suthorlcing the Amory Board and the Adjutant General to dispose of property that Rational Ward Units left behind vher they entered Federal Servlae and appropriating money for the purpose. “The Depertmental Appropriation Aot of the 48th Leglrslature 9. B. No. 332. (Item.4, Supp. to House Journal, p. 234) ‘The Saote out of vhloh the questions pm- sented grov sre stated belov under conaeoutive numbers In conneotlon vlth the queatlona prs- pounded. “1. Aoting under authority of the then exlstlng lew the Armory Board haa acquired R valuable property in Harris County consleting of land, runwsys and buildings vorth in tho neighborhood OS Tvo Hundred Thousand Dollar6on vhIoh it eves some Thirty-odd thousand Dollara which the Boerd is paying off out of rentalr re- ceived under o lease - Armory Board, lessor, to State of Texas, lsmee - whioh lease expirea Au- gust 31, 1943 and is to be renewed for the tvo year (biennium) pe?lod begInnIng Se tember 1, 1943. This property manifestly is1 P a under the provlalons of the Armory Board Act (supra) vhloh, ln Seotlon 2 (I), provides that statute provl- eions requiring notloe and bids ahall no7 apply. “Thus oooum Question fl. (a) Doss 9. 8. 266 (rupia) operste so as to require that request be msde by the Armory Fioard to the Board of Oon- trol under that Bill with respeot to the property mentioned in the above stated Saota, vhioh pro- perty Is generally knovn (18 ‘36th Divirian Avla- tlon Armory and A.l.rportlt (b) Absent any suoh request and any sotion by the Board of Control snd the Attorney General under 9. 8. 265, sre the Anaory Board ss Lessor and the stats of Toxaa, aotlng by the hand of the Adjutant Cenersl, aa lessee, legally competent to prooeed to exeoute

ionorable Clark C. Wren, Exeautlve Searetary, Page 4

a lease aoverlng auoh property for the two esr period beginning septeaber 1, 1943? and (c 3 WI31 the Comptroller and the Btate Treasurer be authorlxed to Iseue vsrmnta ooverlng the rental pmvIded Sor in auah leare, the rental6 being S&ml by the ~zmory Board vIthln the yardstlak adi OxIt in Seotlon 2 (1) OS the Ax?uo~~ Board Aa t.

"2. Aatlng under 3. B. 329 of the 48th Leg- Ialaturethe Amnory Board and the Adjutant Genersl are nov sagsgod In the vork and, prior to Augua t 31, 1943, vlll have completed disposition of Ka- tlonal Guard property and aanoellation 0s all rent- sl arrangements under vhI& auah property has been stored in fifty-oddplaoes throughout th, State ao thst no such storage apaoe vi11 be needed after .the last mentioned date, except 86 to aavalry mita later slentioned. The vork aannot, however, be oas- pleted prior to raid date and this results ln ths neaeaslty or aontinuing to utillre the at0 spaoe contracted for by the Board et the beg %llxs or &he ourrent blenniun in a Sew plaaea, until aaw date In mguat. 1943. The existing arrange- ments require 30 dsya notlae for aanoellatlon, othervise they run to tha end of the ourrent bl- WlllIUlS. Thus It la true that, prior to tho er- rt3OtiYe d&e Of 8. B. 266, ths AmOrg BOSrd Vs6 atittod to the existing storage arrengements that vill not tenalnste until August 31at next.

lThw occurs Question 42. Hov do the provl- HIM 0r 9. B. 266 afrO0t these arrangemnta? See your wo6uq oplnIon No. 5427. '3. At Fort Uorth and Houston the Armory Board hsa outstandIng ar@.!agVments vlth the Fort Uolrth Ce~alry Club (Troops A a& B, 124tlLOsvnlry, Texas Rational Guard) and the Hous ton Oavalrg Olub (Headquarters Troop and Mediaal Detaabmaut, Texas National Guard) under vhiah, subjeot to State appro- prIatIons being available for the purposer the Ar- mory Board is to pay rentala for the amorlea oS

Honorable Clark C. Wn, DxeoutIv4 Ssaretary, Pago 5

auoh unit8 to the Clubs ($100.00 monthly to the Fort Yorth Club and $25.00monthly to the Eoue;ton Club) and the Club8 are to appl thlr rental to pqw off au ind4btedness on tKe had and build- Ing8 involved vlth the understanding that, vhsn 8uah ind4btedness Ir fully paid, the property till be aonveped to the Armory Board fr4e of debt. Th4 Emory Board does not propose to move the property of ruch oavalry unit8 from lto presont plaos of rtorage but 9ro90848 to continue to pay to suoh Clubs for rush 8tOrag4 the rat48 above 8tatsd dur- 5-q th4 aan.Ing biennium. "The property loft behind by these cavalry unit8 18, for th4 moat part, built into the build- irig8 80 a8 to be a firture sad to move It vould 're- 8Ult la great damage. my proasdure undsr 5. B. 266 vould P48Idt ia 1088 instead of gain to the State and all conooraod. If 8. B. 266 IS to disturb thI0 sit- UatiOa, it VOtid 844Sl the better 4cOnOmy to abandon the stored rO9erty and the equity that the Club8 have in the I r properties. In this conn4otlon it Is suggested that, If 9. B. 266 ia to be applied, the Armory Board could do no bra than request the Board of Control to ark for bids on th4 apaoe tb8t 18 nov under contraot to the Board beoause ao othor space aould be u8ed. Th.e tvo Clubs vould than be the only bidders and n0th.l.q vould hsv4 been aocompllrhed ex- oept th4 money rpoat for adVertI88IlWllt8. “Thluloccur8 Quentlon #3. IS th4 Armory Board usrranted In aontlnuingthe present arrangeaaent with th48e Olubr and th4 payment of such rental8 vlthout aotian by'the Board of Control and th4 Attorney Generrrl under s. B. 266~ "4. The Armory Bobrd, aa it ua8 authoriced to do under It8 hat (la8t art of Sootion 1), detomlned that It8 Beadquarters 8il ould bc In a rtite oompris- lag a board roan, its Exeoutlve Secr4tary~r offioe, it8 A88I8tant SeOlWt8 '8 offloe and it8 rteaogra- ph8r'a ,OffIOO (4 LYJOIPI), known a4 1603 Second Katlon- al Bank BulldIn& Hous'I 011, 'PtUes. Th4 r4ntal aon- traoted for and paid for a time vas $133.00per

Honorable Clark C. Hren, Exeautlve Searetory, Page 6

month plus the coat of light8. 9~414 veeka ago, beC8Me it had &Ot employed au A88iat8IIt SOOXW- tary, the Armory Board arranged with the bulld- lag mana@meat to reduce Its rant for the offloo to $100.00 per month, lfghts furnished by the buIldIn& and the Armory Board gave up one of It8 I'OOmll. This arrangement OOntOIUpb3tOdthat, If the Amory Board Va8 authorlcsd 80 to do, it would keep it8 reduced Office 89804 arid pay $100.00 per month rental therefor for at leart a year after Septeuber 1, 19.943. The Board after mov- to these Headquarters spent considsrable money for 8tationery nov on hand shovw It8 lBddP488 to be 1603 second Rational Bank BuIld- lag, Homton, Texaa. If It rhould have to move WI a rerult of aotIon under S. B. 266 the sta- . tlonery vould have to be dI8aardsd. l23.e Board believer it8 rental arraII@ment I8 reasonable and, if It ha8 authorJ.ty to do 80, vi11 continue it. any aotlon by the Board of Control In the prembea under 9. 8. 266 vould be In direat uon- flIot with the pmVI8iOn8 Of the Board’s Aat vhIch author1848 the Amory Board, not th4 Board I of Control, to determIne it8 pl804 of Headquar- ter8. I& this MUln4OtIOD It i8 pointed Out that neither In the oaptlon of 8. B. 266 nor la tho body of the Aot, do48 the Aot purport to amend the Board'8 Aot. (See State Constitution Art. III, Seotlons35 and 36 s It la believed that ii the Leglrlature had In tended that S. B. 266 va8 to mend th4 Board'8Act, the L4gislatum vould have said 80 and beoauso It did not, the 888U8lptiOIl. should be that the ti@slatIVe in- tent V88 t0 14aVe the AlVaOryBoard's pOVer8 a8 stated ia the Board's Aot. “%!hUE OOOUI’8 QUe8tiCIn #4. DO48 9. B. 266 operate 80 a8 to require that the Armory Board request of the Board of Control aotlon uader the Aat towardoeouring the necessary space for the Armory Board’8 Laos of headquarters? In con- neation. with tht 8 qU48tiOll the An50~ Board

!

Honorable Clark C. Wren, Exeoutlvs Seoretary, Page 7

BtatOS that b any x%aueEt that it tight de on the Board of Control In the preti808, it vould a8k for the space it I8 nov ocougylng. 'A COPY Of thi8 rWIOSt iOr yOUI? ODinlO& In bob8 84nt to th4 Comptroller, th4 Btata froaruror, the Board of Control and the Ad- utent Qeaeral ior their Information, and It i.8 requsrted that YOU furnirh thlraavlth aopler, Of YOU' Mplyr " It 18 apparent that all of yOUr inquirler hinge UpO& the pl-M U88tiOnthe Of pl’ VhhhM’ OViSiO&l Of Seaate Bill Ro. 286 (Ch89. 258, ACtS 1943, 48th Leg.) apply to the Texas Eations Guard Amno Board: that 14, vhether the Texas Rational 6Usrd Amory Board is a atate agency or department v1thl.n the contmplatian of the Act. ~&out WotIng at &m&h from senate Bill Ho. 266, Ye a’ sipgly rtats that it r4q~b?es all state deparbneatr and sgfSICi48 t0 s4OUr4 th4 r4IItd 8pace the aood by BUt%il%t- tlng t&air requirements to ths Board of~Con 1 rol, vhlch vi11 then detemine if money is avaihtfb to pay rental8 for ruoh. rpace aad vhother the rpaoe i8 aeedod. &ving roached an UfilWdiVe Oozl41U8iOIIin 8aOh b8t.%XkC4, the Board Of Con- trol 18 rec@red to advertire for bid8 and aaoept the lovelrt and best bid 8ubittedr I& our Opi&h& XOr 0-5427a vhloh qUOt48 at 14&h from the 91~i8iOM OS Senate Bill Ror 266, ve stated1 "Any nov leaas or rental aontraat entered ilLtO after pa88w8 Of 8eXMts Bill'flo. 266 XU8t be executed in the msnaer pre8orIbsd by S4ctlone 1 and 2 of the A&. fh8 Legi818hw bVw DrO- vlded a node for the 8eouring of rental spaoe, the agencies snd departant atfooted are re- 8triated t0 that mode 8&d mI& OopfO~ t0 tho#e nrqtirerrasPt8.n The Texas XatiOnal @aard @mory Board Va8 Or&bd- 4 orested by the 44th Legielature, Act8 1935, General LEVI,

ionorable Clark C. Won, Executive Sscretary, Pago 8

b-9. 18tr, page 462, which vaseamended -__ by the 45th Legirla- tUl'4, Act8 1937 R4g. Se881, Ohap. 3bb, and later agala maded by the 1!6th LegI8lature, hot8 1939, page 487. Thlr legI8latIon, a8 amended, has been codified a8 Article 5;89% Yernoa18 Annotated Clvll Statuteo. You have correctly stated in your letter that the Peraa Rational Guard Armory Board, vhloh will be hereInafter referred to 8tiply a8 the AmDory Board, was areated and aon- stltuted a body politic and a corporation. 844 Art1014 589Ob, Sec. 1. The duties and funotions of the Armory Board am set out la Sootlana 2, 3 and 4 of Article 589Ob. Sea- tion 2 of that Article reads in part e8 follovs: "It shall b4 the duty of aaid Board to have oharge of the aoquIsltIon, constructEn, - rental, control, maintenance and oparstlon of -X88 Eational Guard Amori48, inc1udi.n~ ritables, garagea, rifl4 ranfZ48, hanger8 and all other property and equ0Jnsent nooea8ary or UDO$-Ulin COlUiOCtiOntherewith, and th4 s&- Board shall po8848s all povora necessary and oonvetient for the 8COOEIrIli8hm~t Of 8uOLldZtyr bcluding, but vlthout be= llrltod thereto, %he folloving expreos pover8t1" (Rnpha818 added) Among the express power8 oonferred upon the Board under this 444tiOn are the iOllOVing1

i Honorable Clark C. Wren, Exocutlve Sscretary, Psge 9

A8 pointed out in Toxar rational Guard Armory Board v. McCrav, 132 Tex. 613, 126 S.W. (26) 627, 632, by Suetloe sharp, vho vrote the opinion: "The Clear pU~O84 Of this Aot i8 to give 8tability to the m.iPilitary arm of the State. It provides that the pr8onr acting ae m4Uib0r8 of the 4Xi8tbg Texas National Guard Armory Board 8hsll compose the members Of the Board under this Act. This Aat provides that those who constitute this Board shall be the three rank- member8 of the 'fOXa lPatioaa1 Guard, vhlch ineuro axper- ienced men on the Board to guldo and direct tho affair8 of the Texas Nations1 Guusrd. The meabero of the Board serve without pay, and it la to then a duty of tru8t end honor. The dominant objeat Of thi8 DCU't Of the Act 18 t0 h4VS CCUltirmity Of service on the Board of men of military training, and who have been seleoted for their expsrlenco and merit, in order that the efficiency of the Board may not be Impaired." Slnoe the above ea.84 was dooFd4d tvo odditlonal members have boon added to th.4 Armory Board by the 46th L4gIrlatur4. The tvo additional members ar4 the aenlor active officer of the National Guard of Texas and the realor cavalry officer of said Guard. see Acts 1939, 46th Los., p. 487, Sea. 1. It i8 thU8 apparent 'that the u&8- letUP ha8 sought to 8t8ff the AX%lOl'yBoard with the OUt- rtaadlag mllltary men of the State. !l!ho pavers and authorities vhich ve have quoted frcm the statute are but a 8mall portioa.of the man 4Xpr488 power8 conferi‘ed UpOn the Armory Board b Article 5 90b. Those are the powers and authorities vi t3; vhloh v4 ti ar4 prl- m@ily cO&O4ra4d here, but We She11 h&V0 OOCd.On at a later gi”t in this Opbb& t0 refer t0 other pOWOr pO884slrOd by . The vital function of tha Armory Board, end the obvious pUrpoS8 of the LegIs1ature l.n creating it, 18 to pro- vide a m4ar.18of socurlng amorles to houso the State milltla aad it8 equtpment. In thi8 OO&neCtioa x4, direct your atton- tlon to other langus,ge in the 0884 of Texas National Guard

Honorable Clark C. Wren, Exeoutive Seoretary, P8ge 10

Armory Board V. MoCrav, supra, vhloh appeara at page 681 ~1~IvsSouthvestern Reporter olted, and vhioh reads 8s : W vould be dirri0Ult for the mind t0 conceive hov 8x1 army c8n be Faised, equip ad, and disolpllned, 8s oomnwnded by Section &6 0r utiOi6 16 or the (T~XUS c0mitUtion, VithOUt 8ISlOri8S to house t h, amy snd its eqtipment . The pover to provide for the 8my iS left t0 the VisdOIB Or the ~gi6lUtUXt, sub- jeOt Only t0 the linclt8tiOXl that SUOh 18VS 8s ah811 be passed by the Legislature, shall not be ‘Incompatible with the Constitution and Lavs or the united Statea.’ The u73i~18+2~3 has seen f%l to enaot t&f13 lav for the purpose Or proouring s,ites snd erecting armories, and ha&f’urnIshed the method for flnanclng the , The visdcm or the expedlenoy of’ the lav is left exoluslvely to the Legislature to de- termine, and courts al-6 conoernod only vlth it5 Validity,"

Article 589Ob, to us, evidences the oonsidered purpore or the Texas ugiSl8tUre to place absolute 8nd un- lbited discretion for the aoo~plfslnnent or the objeots therein enumersted in a board ccmpoaed Of men with military buokground. Tiw pavers vhloh have there been oonferred up- on the Armory Board by the Legislature are, in every in- 8t8no8, 8 reared in the broadest poeslble terms, thus fIu- ther reve 3 w the tma&takablp intent of the Legislature that the entire dlsoretlon In matters oonoomed vith secur- w 8muaria8 to how* State milit8z-y eitabllahments rest in the Armory Boa@. !l!boughout this srtlale, the Legialsture bar vith rrorupulous oare stated that nothing oxpressedthere- in is to be oonstrued as a 1LDitation upon tha pover snd au- thoritr vhich the ~rm0a-y Board may need for the aoooniglish- 8b6d 0r it8 purp08e8. A delegation of authority more sweep- ing in its scope, to the end that stability be given to the adlitury arm of the Stete, oannot be lmaglned. yundpul or the purpose ror vhioh the Armory Board V8S Ore8ted and of the plenary powers for aeocanplishlng this

Honorable Clark C. Uren, Executive Secretary, Page 11

purpose vhioh have been conferred upon It, and mindful or the IEilitUrJr oharaoter of the Armory Board and of its undeptakfng, we do not believe that the Legislature would Vest any portion of that 8uthorlty in another board without using language clearly expressing tbat intention. Nor do we believe that the 48th Leglalature by enACting Senate Blll No. 266 (Chapter 289, Acts 1943, p8ge 385) intended to take ftrom the Armory Board any of the brond powers and discre- tion vhloh had been theretofore conferred upon It.

Article 789Ob placea in the Armory Board the ex- Qreas duty to acquire leasehold estatea and grants to It all powers neoeaaary and convenient for the accomplishment of euoh duty.” If we hold th8t Senate Bill No. 266 applies to the Armory Board, we must necessarily hold that the Legislature intanded.to take from the Armory Board these broad powers and discretions. In Senate Bill No. 266, the 48th Legislature has 918Ced absolute discretion over the need by any agency or department of the rental space whlchTproposea to lease or rent in the Board of Control. Some possible diatinotlon may be made on the basis that Senate Bill No. 266 refers to 8nd applies to rental space, vhile Article 789Ob applies to leasehold estates. However, ve will not quarrel with mere temo1ogy. A8 we have seen, Artlole 58gOb places abaolute dlacretion In the Armory Board over the necessity or desir- ability 0r such leasehold estate a8 it de6iroS to acquire. Llkevise under Article T&Ob selection d sltea is left to the dlsoretlon of the Armory Board ua a neceaaury corollary of the grant of “all power8 necessary and convenient to the 8coompllshment” 0r 14s duties. Under Senete Bill No. 266, selection would be made to depend, ln’part at least, upon the amount bid and other factors Vhfoh may or may not take into oonsfderatlon the desirability Of the site as 8 till- tary installation. Again quoting rrom the oplnlon or Justice Sharp in Texaa National Armory Board v. MoCraw, supra: “It la well to keep in mind that we are dealing with statutes and provlslons of the Conatltution relating to mllltary matters and

lonorable Clark C. Wren, Executive Seorotary, Page 12

the power of the State to create an army and provide for ite malntenanoe . . . . This Act 1s a part of the program adopted by the Legls- lature OS Texan relating to the organization and maintenance of the Texas Rational Guard,” We do not believe that In passing Senate Bill Ho. 266, the 48th Legislature intended to enoroaoh upon the broad dlaoretion vhloh it has placed in the military ana of the State end entrust those matters to men vithout mill- targ bpokground. A8 ve have seen, the Legislature in Artiole 789Ob has been oareSu1 to prescribe that only men wlth mill- tary baokground eerve on the Armory Board. The primary funotlon of the Armory Board la to seoure and malntaln ar- aorles and the Armory Board Act places the burden upon the ,?gnory Board to do vhatever is neoessary to carry out its objeots and purpose,s. While Senate Bill Ho. 266, according to its ex- press language, applies to all State agenoles, we are of the r~pinion that properly oonstrued, It does not apply, and vas not intended by the Legislature to apply, to governmental oorporatlons, such as the Arrmory Board, to vhloh the Legls- lature has granted broad and extensive powers for the aaocan- plirhment OS a partiaular and segregated purpolre of the State. J@&.ave already slluded to the fact that the Armory Board, a8 set up by the Legislature, Is oonstituted a body politic &fCZoorporation, which, vhlle it performs funotlons bene- Sl~iZl to the 8tat8, is not in a true sene.e a component and interdependent part OS the admlnlstratlve lnaohinery OS the state government. ------- - -s.,; In Its broadest oonnotation, the expression “atate ageaoy” may and does enoompass all organizations and bodies serving any of +he objeots or purposes OS the State govern- ment. Under thin deffnitlon all organiztitlons whiah are oreated by the State to carry out any one of the many State pwposea, as distinguIshed from those whioh serve strl.$~ private enterprises, are 018ased 88 stste agencies. Lindsey-Btrathmoe Irr. Diet., D, C. Cal., 21 F. Supp. 129. Thus a school dlstrlat, a port oommiaalon, a oity board of eleatlons, an drrigation distriot and a bridge distrlot

53 1 Honorable Clark C. Wren, Rxecutlve Sccretnrg, page 13

havo all been held to be state aganalos. See 40 Words & Phrases (Perm. Rd.) 19. And under this broad definition, even lncor- porated cltlea have been called State nyencles by the oourts of Texas. As pointed out ln Terss National &ard Armory Board V. McGraw, supra: “In its governmental capacity a city Is a political subdivision of the State, and ln many lnstanaes Is oonsldered as an agent of the State; and the State may use such agent In the discharge of its duties. Yett v. Cook, 115 Tex. 205, 281 S.W. 837; City of Uvalde v, Uvalde Elec. k Ice Co., Tax. Comm. ~pp., 250 S.W. 40; City of Trenton v. Neu Jersey, 262 . U.S. 182 43 s. ct. 534, 67 L. Ed. 937, 29 A.L.R. 14 1; 43 C.J., Sec. 5, p. 79, and sec. 179, p. 1i 2 and cases cited in footnotosj Cor- poration of San Fell e De Austin v. State, 111 Tex. 108, 229 9.W. i3i5; city of Armlsss Pass V. Keeling, 112 Tex. 559, 247 S.W. 818; 43 C.J., 880. 5, p. 70.” We doubt that anyone would seriously contend that a oity is a State department or that anyone would seriously urge that the provisions of Senate Bill No. 66 are intended to apply to cities. While cities are, in the broad sense, arms of the State, they are neverthe- less sovereign ln themselves vlthln the llmltatlons lm- posed by the Constitution and statute8 of the State. They are not like those agencies or departments of the state government which perform limited functions as a cog ln the sdmlnlstratlve machinery of state government and vhlch have no sovereignty of’ their own. Yet, If we were seeking an annlogy, ve would oertaldly conclude that the Amory Borrrd is more nearly Ilke a municipal corporation or city than a State depart- mwlt . To all Intents and purposes, the Armory Board is a governmental corporation, with povers and authorities com- mensurate with those possessed by private corporations or

Ionorable Clark C. Wren, Executive Secretary, page 14

3unlalp81 corporations. It has been created by the Legis- lature to asrve oertain, llmlted interests OS the State, wselp, the eaquisitlon of armorlea for the State’r armed forces. Artiale 589Ob giver, the Azao Board almost un- Limited over8 to effectuate and aaoomp 7 lsh Its purposes, 9ec tlon i of that article provides thatr “In the exeou- tion and edmlnistratlon OS objeats and purposes herein set forth, the (Armory) Board shall have pover to adopt means and methods reasonably calculated to aooompllsh suoh ob- jects and purposes and this Aat rho11 be oonstrued llberel- ly in order to effectuate such objects and purposes,” Under this statute, it possesses numerous povers vhlch are not ordinsrlly, and, in Sect, most of vhlch are nevq, grwted to ordinary state departments, For exsmple, to n8me a fev of the powers grsnted, the Armory Board has authority to sue or be sued in its ovn name and to enter into contracts in Its oyll nsmej to have and use a oorporate seal1 to 0.x the number of and compensation of its employees; to adopt, change and amend by-lava, rules snd regulations for the conduot of its affairs; to oonstruct buildings and to buy, ovn, sell or exohange property 3.31Its ovn nsmeJ to borrov money and isrue and sell bonds for the purpose OS ao- Quirlng building sites and build-8 snd to oontraot vlth the State as a separate entity. For all of the reasons rtated, ve have oonaluded that Seaate Bill Ro. 266 doe8 not Ppply to the Texas Bstlonal Guard Armory Board and you are 80 respeotSully advised, What we have stated aPaVers all of the questions propounded by you vlth the sxoeption of your questions l(b) and l(o), whloh we will nov oonslder. In the negotiation of all leases and sublease8 be- tveen the Texas Ration81 Quard Msory Board and the State OS Texas the Adjutant Qeneral, under the provlslons of subsea- tlon (i) of Seotlon 2 of Artlale 589Ob, Is authorlted and designated to sot for the State, We quote this subsection 3n full, as follows;

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. Honorable Clark C. Wren, Executive Seoretary, Page 15

“To execute and deliver leases, or aub- leases in the aase of buildings looated upon leasehold estates acquired by the Board, de- mlslng and leasing to the Stats of Texas through the Adjutant General, uho shall exe- cute the same for said State, for such lavSu1 term es may be determined by the Board, any build- or bulldings and the equipment there- In and the site or sites therefor, to be used for Armory and other purposes and to renew such leases or sub-leases from time to time; provided, however, that if at any time the State OS Texas shall Sail or refuse to pay the rental reserved In any suoh lease or sub- lease, or shall fell or refuse to lease or sub-lease any suoh building and site, or to renev any existing lease or sub-lease thereon et the rental provided to be paid, then the Board shall have the power to lease or sub- lease such buildlug and equipment and the site therefor to any person or entity and won such terms as the Board may determine. The law wqtirlng notloe and ao&atltlve bids

Board ahhi determine) to be charged the State OS Texas for the use of euoh property leased or sub-leased to It by the Board shall be suffiolent to provide for the operation and maintenance OS the property so leased or sub- lassed, to pay the interest on the bonds, de- bentures or other evidences of indebtedness, IS any; issued for the purpose of acquiring, aonstructing or equipping such property, to provide for the retirement of such bonds, de- bentures or other evidenaes OS indebtedness, If any, and the payLS8nt of the expenses inol- dent to the lesuanoe thereof, es vell es the necessary and proper expenses of the Board not otherwise provided for.” (blnyhaels added)

Honorable Clark C. Wren, Wecutlve Seorotary, Page 16

It vi11 be observed that this subsection speclf- Ioally states (see underlined sentence above) that the ‘lav requiring notloe and oompetltive bids shall not apply’ to leases OF sub-leases betveen the Texas National Guard Arc mory Board and the State of Texas. Senate Bill No. 266 on the other hand provides that leases to all departments and agencies of the State shall be made on aompetitive bids by the Board of Control, Ho provision vas made in this bill, however, for either speclfid or general repeal of oonfllcting legislation. If the underlIned provision of submotion (I) bas been repealed by Senate Bill Bo, 266, such repeal must have been accom- plished by Implication since no actual repeal, either speclf- IO or general, is oontained In the Bill as passed by the Leg- islature. Such repeals are not favored by the aourts and vi-l1 not be Invoked unless .the old and the neu law are so antagonistic and repugnant that both oannot stand, the pre- sumption being that the Legislature ln enaatIng the new law Intended for the old provision to remain in sffeat, 39 Tex. Jur. 140, md casea oited in the footnotes. “If by any reasonable oonstructlon two acts or statutory provisions can be reconciled and so construed that both may stand, one will not be held to repeal the other. Espeolallg vhere the older law Is particular and Is ex- pressed In negative terms, and th later stat- enoral, a oonstruotion viz1 be sought late vhiohIS harmon + zes them and leaves both in con- current operation.” 39 Tex. Jur. 141-2, and oases cited In the footnotes. (IS&hasis added) The ;nderlIned provision ln subsection (I) of Sec- tion 2 of Article 58gOb Is expressed in negative tenss. It applies to a partioular type of lease--those for armories- and It Is restrloted to leases betvoen the Armory Board and the Adjutant General, acting as agent for the State. The new law--Senate Bill No. 266--b general. It applies to all leases by all departments and agencies of the State.

Honorable Clark C. Uren, Exeautlve Seorotarg, Page 17

Therefore, applying the quoted rule of statutory construotlon, both provisions should be allowed to stand. Subsection (I) of Seation 2 of Artiole 58gOb vi11 be con- sidered an exoeption to the general provisions contained In senate ~111 No. 266. 39 Tex. Jim. 149-50; Townsend v. Terre& 118 Tex. 463, 16 9.W. (26) 1063~ Cole v. State, lo6 Tex. 472, 170 S.W. 1036, dlsmlsslng error 163 S.W. 353; Ellis v. Batts, 26 Tex. 703. Your iuqulries are therefore respectfully an- svered as follovs: 1. a No. (b) Yes. (a) Yes. 2. Senate Bill No. 26bh as no affect on the arrangements you outline. 3. Yes. 4. No. Trusting that we hrve fully answered your inquiry and that you will call upon us If we can be of further serv- Ice, ve are Ap’TF:.vT-Dm 3, 1943

Yours very truly ATTOIUEYGENERAL OF T&XAS ~-----bd7 BY _ ~/ C.? *.J Peter ManIsoaloo Assistant

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