Texas Attorney General Opinion: JM-551 Page: 4 of 8
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Mr. John S. Cargile - Page i (JM-Sk)
See also, Attorney General Opinions H-257 (1974) (Parks and Wildlife
Department could spend state funds to construct facilities on land
owned by the federal government without violating article III, section
51 because expenditure had valid public purpose and adequate public
benefit); MW-514 (1982) (Texas Tech University Health Sciences Center
may construct medical school, facilities on land subject to rights of
reversion without violating article III, section 51). Cf. Attorney
General Opinion C-395 (1965) (prohibition in article VII, section 17
against use of general revenue fund for permanent improvements by
designated universities did not apply to construction of building on
state-owned land for museum that is a separate entity but administered
by a university).
The authority of the university to spend state funds to improve
or operate the trust proptarty is determined not only by the Texas
Constitution and statutes lut also is determined by the terms and
conditions of the trust. The trustee of a testamentary trust can
exercise only such authority as is vested in him by the will under
which he acts. Williams v. Smith, 200 S.W.2d 201, 207 (Tex. Civ. App.
- Galveston 1947), rev'd. on other grounds 206 S.W.2d 208. As we
previously mentioned, article 95.34 of the Education Code authorizes
the Board of Regents to accept donations, gifts, grants, and endow-
ments for the universities under its control to be administered for
the purposes and under the directions, limitations, and provisions
declared in writing in the donation, gift, grant, or endowment.
The will that create the trust in question directs the uni-
versity, as the Operatin; Co-Trustee, to manage and operate the
day-to-day and long-term operations of the trust property as a self-
supporting entity fiscally separate from the operation of Southwest
Texas State University. It appears that the terms of the will
preclude the university's tLse of its own funds for the improvement or
operation of the trust property as a laboratory in support of its
agricultural and range management educational programs. See Attorney
General Opinion MW-425 (1982) (funds donated to Pan American Uni-
versity may be used only fcr purposes authorized by the donor pursuant
to section 112.34 of the Education Code). However, to carry out the
purposes of a trust, a coetrt may direct or permit the trustee to do
acts that are not authorized or that are forbidden by the terms of the
trust if, because of circumstances not known or anticipated by the
settlor, compliance with the terms of the trust would defeat or
substantially impair the accomplishment of the purposes of the trust.
See Property Code 112.054; Smith v. Drake, 94 S.W.2d 236, 238 (Tex.
Civ. App. - Austin 1936, nc writ).
In addition to the provision of the will specifying that the
trust and trust property be operated as a self-supporting entity
fiscally separate from the university, the will also provides that the
university, as the Operating Co-Trustee, shall, from the trust fund,
discharge all obligations of the trust, including without limitation,
property costs such as ad valorem taxes and insurance premiums forp. 2445
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-551, text, October 2, 1986; (https://texashistory.unt.edu/ark:/67531/metapth272991/m1/4/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.