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June 6,2010

Via Fax Transmission to 512-322-0578and Email Transmission

MarshaL. Acock

AssistantAttomey General

CharitableTrustsSection

ConsumerProtection andPublic Health Division

Office of the Attomey General

P.O. Box 12548

Austin, TX787Il-2548

Re: Contemplated sale of Samuell Park Properties

Dear Ms. Acock:

This responds o your letter to City Attorney Tom Perkins and me dated June 14, 2010

(copy attached),regarding the proposed sale of three parks that are part of the trust

createdby the will of Dr. W. W. Samuell("the Trust").

In your letter, you first state that if the City can no longer accomplish the terms of the

will of Dr. Samuell (which specifiedthat the parksbe held for park pu{posesand not be

sold), the City needs to make "all efforts" to find an entity that could accomplish Dr.

Samuell's intent for the property. You then say that if the City is not able to find another

entity to carry out Dr. Samuell's intent, then the City could properly seekmodification of

the Trust.

As you know, courts have approved several modifications to the Trust since it was

established70 yearsago. Are you aware of any casesor statutes hat require the City to

make all efforts to find an entity that could accomplish Dr. Samuell's intent for the

property? Similarly, are you aware of any casesor statutes hat prohibit the City from

seeking a modification of the Trust until the City has tried and failed to find another

entity to carry out Dr. Samuell's ntent? If so, could you pleasecite them to us so thatwe

may evaluateyour claims?

Contraryto your position in the letter, our Memorandumof Understandingacknowledges

that the City need not spendany money on the Samuellparks in excessof Trust funds.The insufficiency of trust funds to accomplish a trust's purpose s a classic reason for

applyng the cy presdoctrine to modify a trust. SeeBogert'sTrusts and Trustees,$ 438.

fWhen cy pres may be used--Impossibility of execution of trust purpose] (viewed on

Westlaw June 16, 2010 (Currentthrough the 2009 Update)). There is no requirement or

a trustee o find anothersource of funding before seeking rust modification under the cy

OFFICE OF THE CITYATTORNEY CIry HALL DALLAS,TEXAS 75201 TELEPHONE 2141670.9519 FAX21416704622

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presdoctrine. The casesdo not require the incumbent rustee o find a successorwhowould fundthetrust from sources utside he trust.

Indeed,asyou know, the City has for yearsbeen unding the Samuellparksfrom non-tnrstassets ithout compensation.f the City hadnot doneso, he Trustwould havebeen

exhaustedearsago. In view of the City's budgetexigencies,he ParkBoardand heCity Council could decide to ceasesuch additional funding and to draw reasonablecompensationor the City's trust activitiesandreimbursementor the City's expensesbenefitting the Samuell parks from the trust. This may exhaust the trust beingadministered y Bank of America andby the Park Board but for a valid andpermissibletrustpurpose.

Next, you say that the udgmentof March g, 1940, estricts he distributions of incomefrom the W. W. SamuellPermanentFoundation o maintenance, pkeepandpermanentimprovementof the Samuellparkpropertiesand hatthe Trust would need o be modifiedbefore he City coulduse heproceeds f a saleof a Samuell arkproperty or acquisition

of property or theSamuell rust. TheCity agreeswith you.

However, he City notes hat Section253.001(d) f the TexasLocal GovernmentCoderequires he City to use heproceeds btained rom the saleof park landonly to "acquireand mproveproperty or thepurposesor which the soldpropertywasused." The Cityneedsmorepark and n certainareasof theCity andDr. Samuellclearly wanted o createparks o be managed y the City's Park Board. Accordingly, f the City were o decidethat it wants to use any of the proceeds rom the sale of a Samuellpark to acquireadditionalpark properties o add to the Trust, the City would need to seek and obtaincourtpermissiono modiff the Trustbeforedoing so.

You then state hat obtainingapprovalby the voters o sell a Samuellpark s a"secondaryrequirement"becausehe parkswere not purchasedwith taxpayer unds. NowheredoesChapter253 of the TexasLocal GovernmentCode refer to a "secondary equirement."Nor does Chapter 253 make any distinctions basedon whether a park property wasobtainedby spendinga:rpayer ollars.

.)

You next say that a court must determine he trust issuesbeforepublic hearingsand a'

refere'ndum nd that your office is preparedo seekdeclaratory elief if the Park Board(or presumablyhe City Council)continueso proceed.The City respectfully isagrees.It is improperto ask a court to rule on any of the fust issueswhen the City has notobtained he approvalof the votersat an election o sell anypark properties. A courtwould not have urisdiction to issuesuch a ruling becauset would be a prohibitedadvisoryopinion respecting nonjusticiable nd unripe ssue. SeeCity of Garland v.Louton,69l S.W.2d603, 605 (Tex. 1985);Coalson . City Councilof Yictoria,6lOS.W.2d744,745(Tex.1980) holding hat a declaratoryudgmentactionsoughtonly anadvisoryopinionbecause n electionon thepetitioncould result n its disapproval). nCoalson, he SupremeCourt held, "[t]he electionwill determinewhether here is ajusticiable ssue,at which time the respondents'omplaintsagainst he validity of the

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initiatory process under article II70 may be determined by the trial court." Id.(emphasisadded).

Here, even f the voters were to approve he sale of one or more of the Samuellparks,theCity could decide not to sell thoseparks for any number of reasons. In other words, voter

approvalwould merely allow the City to sell thoseparks,not require their sale. Until andunless he City decides o sell one or more Samuellparks, there s no ripe controversy orcourt adjudication. You have our commitment that the City will not seek o sell any ofthe Samuellparkswithout first seeking o modiff the Trust to allow such a sale.

We plan to brief the Park and RecreationBoard this Thursday (tomorrow) on the legalissues nvolved in a proposedsale of park properties. If you have any casesor statutesthat supportyour positions outlined in your letter, pleaseprovide them to me in advanceso that I may give your position appropriateconsideration.

Sincerely,

Christopher . BowersFirst AssistantCity Attomey

Attachment

ThomasP. Perkins, r.,City AttorneyPeterB. Haskel,AssistantCity AttorneyChristineLanners, ssistantCity AttorneyLemuelThomas,AssistantCity AttomeyPaulDyer, Director,ParkandRecreation epartrnentBarbaraKindig,AssistantDirector,ParkandRecreation epartment