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Home My WebLink AboutCORRESPONDENCEEO 0 ATToRNL GmERAL oF TExAs GREG ABBOTT ,September 13, 2004 Mr. J. Paul Johnson, CItair Opinion Pilo. GA-0249 Board of Regents Texas Southern University Re Whether certain deed restrictions apply to 3100 Cleburne Avenue property owned by Texas Southern University, on Houston, Texas 77004 which the tmivcrsity is constructing privatized student housing (RQ-01"-GA) Dear Mr, Johnsow. On behal of Texas Southern University (the - Univemity), your gencral counsel has asked whether certain deed restrictions apply to University-owned property. on which the University is constructing privatized student housing.' We under" und that the University acquired property in the Tierwtster Oaks subdivision wi thin the City of Houston through purchase and condemnation,' The property appears to be subject to deed restrictions filed in Harris County with the Tie ester Oaks subdivision p14 including restrictions upon apartment construction within the subdivision,' We limit out response to restrictions on property acquired by a goverruricntal entity by purchase or condemnation. ` Ser I-w= from Lynn kodriguer, General Counsel, Tex asSouthern Uruvcmity. to Nancy Fuller, Chair, Opinion at t (M.v-17, 2004) (on file with the OpinioaCtntirnitt", a1w dvailahk of bW- [bercinafter Rcq=% Letter 1, 2 &e Telephone conversation wide Lynn Rodriguez, General Counsel, Texas Southern University (June 22, 2004); Letter from Lionel) Hottard, Prcsidcnt. Tier westerly ivicAssociation, to Nancy Puller, Chair, Opinion Conuniftc, Texas Attorney General's ClIfice (May I IR. 2004) (an file with the Opinion Committee) thereinafta Tierwe"" Civic Association Brief); Request Letter, mtpra nott 1, at 1, The City of Houston, which has Jurisdiction oi-Tt die property, has advised dw Uinver'sity that it 'will nee enforce any decd restriction that purports to prohibit of � restrict the (University*s] right - , , to acquire and hold real property , , - .- Letter from Andmy W. Hall k, City of Houston Attorney, to Dr, Priscilla D. Slade, President, Texas Southern University (MaT, 4, 2003) (on Me with the Opinion Committee); accord Letter from Arturo 0. Mictick City of Houma Attorney, to Nancy Fuller, hair, Opinion Conunittee, Texas Attorney General's Office (received MAy 5, 2004) t on rite with the Opinim Committee), lit addition, in February 2003 an auorticy in the Transportation Division of this office advised the University that the application of died restrictions against a gownirnental entity is "cored contrary to public policy and void." Mernivandum from Randall M. Ward, Senior Attorney, Transportation Division, Texas Attorney General's Office, to Lynn Rodriguez, General Cv=wL Texas Southern. University (F&- 28, 2003) (on file with ft Opinion Committee). 'Sec D and Pcfitkmfortare Modification of, and Addition to, Restrictions forTIERWESTEROAXS, attached to Request Letter, s Dow t. Page I of I http: / /texashistory.unt.edu/ark: /67531 /metapth275145 /ml /1 /med res/ 7/5/2013 r Mr, J. Paul Johnsen - Page 2 (GA-0249) The University is a statewide general purpose institution of higher Oduostion located in. the city of Houston. See TEx. EDuc Coon. ANN. §§ 106,01-.02 (Vernon 2002). The University governing body, the board of regents, see id. § 106.11, may acquire, "by purchase., exchange, or otherwise" (including by condemnation), any real property 'Iiecessary or convenient" to carry out "the purposes of state-supported institutions of higher education"; the board also may lease any University-owned land. Id. § 106-35{a), (c). The proceeds from any lease of land "or other mat property" must be added to the University's general funds. I& § 10635(b). Several judicial decisions conclude. that deed restrictions and restrictive covenants do not apply to a governmental entit)4 particularly one with authority to condemn, with respect to property the governmental entity has acquired by purchase or condemnation. See Wynne v- Cily offlouslon, 281 S.W, 544, 5" (Tex. 1926) (per curiam) (concluding that no contract could restrict a municipality's authority to construct and maintain fire stations); Deep F- Tear. Reg ' Mental Health & Mental Retardation Servs. v. Kinnear, 877 S. .2d 550,560(Tex. App.-Beaumont 1.994, no writ) (concluding that restrictive covenants "must yield to the exercise of the state's legitimate police power"); Pa tafox v. Yqvd, 400 S.W.2d 946, 90-50 (Tex. Civ, App.-El Paso 19 no writ) (concluding. based upon Wynne and oft- r cam, that restrictive covenants cannot be applied against a governmental body authority to condemn); pity ofRiver Oaks v. Aloore, 272 S.W.2d 389,391 (Tex. Civ. App,-Fort Worth 1954, writ ref nr.c.) (concluding drat deed restrictionsare not binding on the state or a subdivision thereof). Based on the holdings in these cases, we conclude "(deed restrictions do not apply to Univetsi"wned property in this situation. We have found no authority indicating that the conclusion would be different because the University-owned property is used for privatized student housing. The University has determined that the housing, when constructed, "will serve a public purpose directly related to the performance ofthe University's duties and functions, specifically to house students cruxilled at the University." Request Letter, supra note 1, at 2. Presumably, lease payments the University receives from the private entity controlling the housing will be deposited into the University's general fund, in accordance with section 106.35 of the Education Code, which requires lease proceeds to he added to the University's general funds. See TEx. Eouc. Copt; ANN. § 1.06,35(b) (Vernon 20(12). A brief we have received raises numerous fact issues regarding the University's use of the property and the ptirpotted public purpose. &egenererfty Tietwester Civic Association Brief, sapra note 2, This office cannot resolve fact questions. &e Tex. Att'y Geri, Op. No� GA -0156 (2004) at 10 (stating that fact questions cannot be arwwrcred in the opinion process). We assume, therefore, that the University, as dw requesting governmental body, has set forth a corrcct and complete version of the facts. Cf. Tex. Att'y Gen. ORD-609 (1992) at 5 (stating that, where this office may not resolve fact issues under the Open Records Act as a matter of law or from the facc of the documents, we "must rely on the representations of the governmental body requesting our opinion"). Page I of I http: / /texashistory.unt.edu/ark: /67531 /metapth275145 /ml /2 /med res/ 7/5/2013 Page I of I Mr- J. Paul Johnson - Page 3 (GA-0249) SUMMARY Deed restrictions do not apply to property owned by Texas SoutbartUniversity,which the University acquired bypurchasc or by condemation, and on which privatized student housing is being constructed. Very try � I yours, E B"OTT rne/Geioral of Texas BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Kymbcrly K Oltrogge Assistant Attorney General, Opinion Committee http: / /texashistory.unt.edu/ark: /675 /metapth275145 /m /3 /med res/ 7/5/2013