Bowling v. City of El Paso, 6431

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtPRESLAR
Citation525 S.W.2d 539
PartiesR. L. BOWLING et al., Appellants, v. The CITY OF EL PASO, Appellee.
Docket NumberNo. 6431,6431
Decision Date09 July 1975

Page 539

525 S.W.2d 539
R. L. BOWLING et al., Appellants,
v.
The CITY OF EL PASO, Appellee.
No. 6431.
Court of Civil Appeals of Texas,
El Paso.
July 9, 1975.
Rehearing Denied July 30, 1975.

Warren Burnett Associated, Richard J. Clarkson, Odessa, Malcolm McGregor, Collins, Langford & Pine, John A . Langford, Charles E. Vinson, El Paso, for appellants.

Peticolas, Luscombe, Stephens & Windle, Harry Lee Hudspeth, El Paso, for appellee.

OPINION

PRESLAR, Chief Justice.

This is a suit by the City of El Paso to have declared void and to rescind a 1972 exchange of City-owned lands for lands owned by R. L. Bowling, Truett L. Maddox, Donald B. Fertel, C. E. Armstrong, Trustee, Property Management Company of New Mexico, and others, who were defendants in the trial Court and are the Appellants here. Subsequent to the exchange of properties, Property Trust of America and Property Services of America, Inc. acquired an interest in the land traded by the City and thereby became defendants and are also Appellants herein. The City alleged non-compliance with Art. 5421c--12, Vernon's Tex.Rev.Civ.Stat.Ann., grossly inadequate consideration, and an unconstitutional donation of public property.

At the close of all the evidence, the Court withdrew the case from the jury and granted the City's motion for instructed verdict based on the application of Art. 5421c--12. The trial Court voided the entire transaction by rendering judgment that the deed of the City be nullified, cancelled, set aside and declared wholly void, and that the deeds of the other parties to the transaction likewise be voided. That judgment will be affirmed.

Art. 5421c--12 became effective June 10, 1969, and provided in pertinent part as follows:

'No land owned by a political subdivision of the State of Texas may be sold without first publishing in a newspaper of general circulation in the county where the land is located or in an adjoining county, if there is no such newspaper, a notice that the land is to be offered for sale to the general public, its description, its location and the procedures under which sealed bids to purchase the land may be submitted. Notice shall be so given at least on two separate occasions

Page 541

and no sale shall be held less than 14 days after the last notice.'

The first and principal question presented to the trial Court and to this Court is whether or not this statute governs an 'exchange' of land between a City and private persons.

It is undisputed that there was no advertising in the newspapers and no compliance otherwise with Art. 5421c--12 prior to the exchange . It is contended by Appellants that an exchange of property as occurred here is not a sale of property, therefore the cited Article does not apply. Appellants cite a number of cases as authority that an exchange is not embraced within the term 'sale.' These authorities can easily be distinguished as not pertaining to the construction of the statute involved. It is recognized that there is a technical distinction between a sale and an exchange of property, but, as used in the statute, this Court construes sale to mean any transfer of property. This is a logical construction because the purpose of the statute is the protection of public property, to throw a safeguard around land owned by a City in order that it might not be disposed of for less than true value and without prior knowledge by the citizens of the community.

Land may be disposed of in a number of ways--by sale, exchange or gift; the statute should be construed to cover all of these to effect its purpose of controlling the disposal of City property. If the word 'sale' is held to its narrow technical sense, not to include 'exchange,' then it should be held not to include 'gift.' Surely no one would say that the Legislature intended that City property could be given away with no notice of any kind.

In the case of McKinney v. City of Abilene, the Eastland Court of Civil Appeals considered a City charter provision almost identical in its terms to the statute before us. In construing the charter provisions, the Court set aside deeds of exchange and declared them void. 250 S.W.2d 924 (1952, writ ref'd n.r.e.). It held, as we must here, that 'sale' should be construed in a broad sense, to cover and apply to the disposition of land owned by the City by means of an exchange. The Court noted, that in statutes, the word 'sale' is usually construed as including an exchange of...

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6 cases
  • Walker v. City of Georgetown, 03-01-00151-CV.
    • United States
    • Court of Appeals of Texas
    • July 26, 2002
    ...requirements to apply to the "sale or exchange" of land, not the lease of land. The Walkers' reliance on Bowling v. City of El Paso, 525 S.W.2d 539 (Tex.Civ.App.-El Paso 1975), aff'd, 529 S.W.2d 509, 509 (Tex.1975), is unavailing. First, Bowling involved an exchange, not a lease, of city-ow......
  • Brodrick Moving & Storage Co. v. Moorer, 09-82-106
    • United States
    • Court of Appeals of Texas
    • November 28, 1984
    ...do not believe that Brodrick is entitled to the coattail effect of Allied's apparent affirmative pleadings, Bowling v. City of El Paso, 525 S.W.2d 539 (Tex.Civ.App.--El Paso 1975) writ ref'd n.r.e. per curium 529 S.W.2d 509 (Tex.1975), which pleadings we do not have in the record before us,......
  • City of Dallas v. McKasson, 05-85-00966-CV
    • United States
    • Court of Appeals of Texas
    • January 8, 1987
    ...not be disposed of for less than true value and without prior knowledge by the citizens of the community. Bowling v. City of El Paso, 525 S.W.2d 539, 541 (Tex.Civ.App.--El Paso), writ ref'd n.r.e. per curiam, 529 S.W.2d 509 Surely, the protective function of the statute would be greatly dil......
  • Soncy Road Property, Ltd v. Chapman, CIV.A.2-01CV-0379.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • April 25, 2003
    ...and 4) that it did so for less than fair market value, the sale or exchange is voidable under Texas law. Bowling v. City of El Paso, 525 S.W.2d 539 (Tex.Civ.App.-El Paso), writ ref'd n.r.e., 529 S.W.2d 509 (Tex.1975) (reserving the question whether a failure to comply with the statutory req......
  • Request a trial to view additional results

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