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                                       AURTIN.     TEXAS       78711




                                                    May    30, 1975


        The Honorable    Bevington   Reed                          Opinion   No.   H-   620
        Commissioner,     Coordinating    Board
        Texas College   and University    System                  Re: Applicability    of the Texas
        P. 0. Box 12788, Capitol Station                          Antiquities   Code to proposed
        Austin,  Texas   78711                                    demolition   of buildings   by the
                                                                  Ilrllas Community    College.

        Dear    Dr.   Reed:

                   You have requested        our opinion concerning     the applicability   of the
        Texas     Antiquities      Code, article 6145-9, V. T. C. S., to three structures
        owned     by the Dallas County Community          College   District.  Specifically
        your    questions     are:

                                    (1) Is section 6 of article   6145-9 overbroad,
                              vague,     undefinable,   and without ascertainable     limits
                              and hence unenforceable,         and does it constitute   the
                              taking of property      without due process    of law in
                              violation    of the State and Federal    Constitutions?

                                   (2) Is the Dallas County Community             College
                              District   required    to obtain a permit       from the
                              Texas Antiquities       Committee      before demolishing
                              the three westernmost         structures     of the El Centro
                              College    complex,     Dalla,s,   Texas,    in view of the
                              undisputed fact that the present          El Centro building
                              program     was approved       and begun in 1973 and that
                              by April 8. 1975, when said buildings             were placed
                              on the National     Register     90% of the funds allocated
                              for the project     had been committed         in contracts?




                                                    \ p. 2741
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The Honorable      Bevington      Reed    page    2    (H-6201




                       (3) If a political   subdivision    of the State of
                  Texas such as the Dallas County Community                  College
                  District,    complies    with the requirements        of Article
                  5421q, Texas Revised         Civil Statutes,    and in making
                  its decision    to demolish     certain  structures     finds that
                  there are no feasible       alternatives    to the removal       of
                  said structures,       and no petition for review       of said
                  decision    is made within the thirty days required             by
                  Section 3 of said statute,        does that political     subdivision
                  nonetheless     still have to obtain a demolition         permit
                  from the Texas Antiquities          Committee?

                       (4) Does Article     6145-9 (the Texas Antiquities
                  Code),    and in particular    its Section 6, apply to the
                  buildings’at    hand, since said buildings      have no
                  connection    to prehistoric    and historical     American
                  Indian or aboriginal      campsites,    dwellings,    and
                  habitation   sites?

          Your first   question    concerns      the scope    of article   6145-9,    and its
constitutionality.      Section   6 provides:

                       All other sites,       objects,     buildings,    artifacts,
                  implements,        and locations      of historical,     archeological,
                  scientific,     or educational      interest,    including    but
                  expressly      not limited    to, those pertaining         to prehistoric
                  and historical       American     Indian or aboriginal         campsites,
                  dwellings,      and habitation      sites,   their artifacts      and
                  implements        of culture,    as well as archeological           sites
                  of every character         that are located in, on or under the
                  surface     of any lands bebnging to the State of Texas or
                  by any county,        city, or political      subdivision     of the
                  state are hereby declared            to be State Archeological
                  Landmarks        and are the sole property           of the State of
                   Texas and all such sites or items located                 on private     lands
                  within the State of Texas in areas that have been desig-
                  nated as a “State Archeological              Landmark”       as hereinafter
                  provided,      may not be taken, altered,            damaged,      destroyed,




                                                 p. 2742
The Honorable       Bevington     Reed    - page   3    (H-620)




                   salvaged,    or excavated  without a permit from,  or
                   in violation   of the terms of such permit of, the
                   Antiquities   Committee.    (Emphasis   added).

         We need not reach the question       of whether the State may take
ownership    of property  from its political    subdivisions   without providing
compensation,     for your request    concerns    only the designation     of Archeological
Landmarks     and the permit   reqtirement.,      These provisions     operate independently
of the clause declaring    such Landmarks       “the sole property     of the State of Texas.                ”

           A permit    requirement         for the construction        of buildings   is a common
exercise     of the State’s police power.             Meserole     v. Board of Adjustment          City of
Dallas,     172 S.W.2d 528 (Tex.           Civ. App. -- Dallas 1943,no writ);             City of Dallas
v. Meserole,       155 S.W.2d 1019 (Tex.           Civ. App. -- Dallas 1941, writ ref. ‘d.,
W. o. m.); see Moody v. City of University                 Park,     278 S.W.2d 912 (Tex.        Civ.
APP.    --  Dxs      1955,   writ    ref’d     n. r. e.).  A   state’s    police  power   to  protect
the general     welfare    of its citizens       has consistently       been held to extend to the
preservation      of historic     sites.      Opinion of the Justices         to the Senate,     128
N.E.2d 557 (Mass.         1955); City of Santa Fe v. Gamble                 - Skogmo,    Inc.,   389
P.2d 13 (N.M.      1964); City of New Orleans              v. Levy,      64 So. 2d 798 (La. 1953);
Rebman v. City of Springfield,               250 N.E.2d 282 (App. Ct. Ill, 4th Dist. 1969);
C_r., Mavor and Citv Council of Baltimore                  v. Mano Swartz,         Inc.,  299 A.2d
828 (Md. 1973).        Maher v. City of New Orleans,                371 F. Supp. 653 (E. D. La.
1974).

         In City of Dallas v. Crownrich,     506 S.W. 2d 654 (Tex.      Civ.   App.    --
Tyler   1974, writ ref’d.  n. r. e.), the Court held:

                   A city such as Dallas would be entitled    under its
                   zoning auth0rit.y to zone a particular  area as a
                   historic district.

The Texas Supreme        Court has recognized     the governmental    interest   in the
preservation    of historic   sites and the application   of the Antiquities    Code thereto.
San Antonio    Conservation     Soc,iety, Inc. v. City of San Antonio,      455 S.W.2d
743 (Tex.    Sup. 1970).    In addition,




                                              p. 2743
The Honorable      Bevington   Reed   - page   4     (H-620)




                  The government       under its police power always
                  has the right to enact any and all legislation       that
                  may be reasonably      necessary    for the protection    of
                  the health,  safety,    comfort,   and welfare   of the public.
                  Ek.parte  Thomas,     174 S.W.2d 958, 960 (Tex.      Sup. 1943).

Accordingly,     it is our opinion that the designation        of sites of historic     interest
as State Archeological       Landmarks        and the permit  requirement      of the Antiquities
Code are valid exercises         of the State’s police power.       As such, no compensation
is necessary    for,losses     resulting    from the operation    of the Act.     State v. City
of Austin,   331 S.W.2d 737 (Tex. Sup. 1960); Town of Ascarate              v. Villalobos,
223 S.W.2d 945 (Tex. Sup. 1949); Ellis v. Citv of West Universitv                Place,    175
S.W.2d 396 (Tex.Sup.       1943).    It is therefore   our opinion that the Antiquities
Code’s designation       of historic   sites as State Archeological      Landmarks        and its
permit   requirement      are not unconstitutional      as a taking of property      without
just compensation.

                  There might, however,        be particular  instances
                  in which decisions    of the [Committee],     because
                  of peculiar  hardship   and remoteness     from the
                  legitimate  purposes    of the act, would be unconsti-
                  tutional applications   of it.   Opinion of the Justices
                  to the Senate, supraat      562.

Indeed,  there may be circumstances         in which a site is of such slight historic
interest  and of such little utility that the denial of a permit would amount to
an unreasonable   and arbitrary     exercise   of the Committee’s   power.    Whether
this is the case in this instance    is a question   of fact which can not be resolved
in an opinion of this office.

     The second facet of your first        question    concerns   the limits   of the Act’s
description    of State Archeological       Landmarks.       Since your request pertains
to sites of “historic    interest,  ” we   will limit our discussion       to the proper
definition   of that term.     While the   Antiquities    Code contains     no definition   of
“historic   interest,  ”

                  [i]t is a settled rule of statutory    interpretation      that
                  statutes that deal with the same general          subject
                  . . . are considered    as being in pari materia          . . .
                  and [are to be] construed    together.      53 Tex. Jur. 2d
                  Statutes,   $186, p. 280, 281, citing among other




                                           p. 2744
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        The Honorable        Bevlngton      Reed,    page    5    (H-620)




                             authorities,    County School Trustees      of Orange
                             County v. District     Trustee.9 of Prairie    View
                             Common School Dist. No. 8, 153 S.W.2d 434
                             (Tex.Sup.     1941); Dallas County v. Lockhart,       96
S.W.2d 60 (Tex. Sup. .1936); Love v. City of
                             Dallas,    40 S.W.2d 20 (Tex. Sup. 1931).

             Article     6145, V. T. C. S., creates            the Texas Historical           Commission.         We
        believe    that references         to “historic     interest”      in the Antiquities       Code should
        be defined by examination              of article    6145, for both provisions            relate to the pre-
        servation     of historic      sites.     Section    12 of article      6145 gives the Historical           Com-
        mission     the responsibility         for marking        sites significant       in Texas and American
        history.      Section 15 authorizes           the Commission          to certify     the worthiness       of
        preservation        of historic     sites.     Section 9 designates          the Commission         as the
        administrator         of the National      Historic      Preservation       Act of 1966, 16 U.S. C.
         § 470, et seq.        Section 470a of that Act provides               for a.national      register    of
        sites significant        in American       history.       In our view,      the term “historic        interest”
        as contained      in the Antiquities         Code contemplates           some governmental           recog-
        nition of such interest          and specifically        those indicia      referred     to in article
        6145. Accordingly,           it is our opinion that a site of “historic                interest”     under
        the Antiquities        Code is a site which has been designated                    with a Texas Historical
        Marker,      certified     as worthy of preservation             under section 15 of article           6145,
        or which is listed on the National                Register     pursuant to 16 U.S. C. §470a.            By
        reference      to article     6145, the term “historic            interest”     is given ascertainable
        limits and in our view the term is therefore                     not impermissibly          vague.

             Your second question       concerns    the effect of contracts    entered prior to the
        inclusion    of these buildings    on the National    Register.    Section 6 of the Anti-
        quities   Code prohibits    the destruction    of a State Archeological      Landmark
        without a permit from the Antiquities          Committee.       The buildings   became
        Landmarks       on April 8, 1975, when they were listed on the National            Register.
        Accordingly,      they may not be destroyed       without a permit.      See, Attorney
        General    Opinion H-250 (1974).       Whether    the denial of a permTin       this instance
        would unconstitutionally      impair   these obligations      would depend on factual
        matters    not now before us.

             Your   third question   concerns  whether    a political  subdivision    must obtain a
        permit from the Antiquities       Committee    notwithstanding    its prior compliance
        with article    5421q, V. T. C. S. In our opinion the two statutory         provisions
        operate independently      of one another.   Article     5421q provides    for a public hearing
        prior to the taking or use of any public land designated          as a park, recreation



                                                          p. 2745
The Honorable            Bevington   Reed,     page    6     (H-620)




area,     scientific   area,   wildlife    refuge,     or historic   site, presumably     to
allow local residents        to participate      in the decision.       The Antiquities    Code
is an exercise       of the police power of the State to protect             the general   welfare
of the entire State by preserving             historic    sites.   Neither    provision  recog-
nizes the other as superior,            therefore      both statutory    procedures     must be
utilized.

     Your fourth question     concerns   the applicability     of the Antiquities    Code
to sites other than those connected       to “prehistoric     and historical     Am,erican
Indian or aboriginal    campsites,     dwellings,   and habitation     sites. ” Section 6
of the Antiquities   Code provides     a clear answer      to this question;     its applica-
tion is “expressly    not limited   to” these sites.

                                         SUMMARY

              The Antiquities     Code’s designation    of State Archeological
         Landmarks     and its requirement      of a permit     prior to their
         destruction   is a valid exercise     of the State’s    police power and
         no compensation      need be made for losses       incident thereto.    In
         a particular   instance    a site may be of such slight historic
         interest   and little utility that a denial of a permit would con-
         stitute an unreasonable      and arbitrary    exercise     of the Committee’s
         power.     Whether    this is the case in this instance       involves queetiona
         of fact upon which we cannot rule.

                 Sites    of “historic     interest”       as contained   in the Antiquities
         Code are those bearing a Texas Historical           Marker,   those
         certified   by the Historical    Commission    as worthy of preser-
         vation,   and those included on the National       Register.    Accordingly,
         the term “historic     interest”   is not ‘imp elmi‘ssibly   vague.

                 The Dallas Community    College   District must                obtain a permit
          from     the Antiquities Committee   for the demolition                 of the three




                                                   p. 2746
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        The Honorable      Bevington     Reed,    page     7      (H-620)




                  19th Century bui,ldings involved,      notwithstanding    the
                  existence    of contracts   for their destruction.     Whether
                  refusal   of a permit would unconstitutionally      impair
                  the obligations    of contracts   would depend on factual
                  matters    not before US.

                       The procedures    of article         5421g, V. T. C. S., and
                  those of the Antiquities   Code          are independent;   both
                  statutes  must be satisfied.

                       The application    of the Antiquities           Code is not
                  limited  to prehistoric    and historical           American    Indian
                  or aboriginal   campsites,     dwellings,           and habitation
                  sites.

                                                           Very     truly   yours.




                                                           Attorney     General      of Texas

        APPROVED:




        DAVID     M.   KENDALL,        First   Assistant




        Opinion    Committee




                                                     p. 2747
