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

MarshaL. Acock
Assistant Attomey General
Charitable Trusts Section
ConsumerProtection and Public 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 respondsto 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 specified that the parks be 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 years ago. Are you aware of any casesor statutesthat 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 statutesthat 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 intent? If so, could you pleasecite them to us so that we
may evaluateyour claims?

Contrary to your position in the letter, our Memorandum of Understandingacknowledges

that the City need not spend any money on the Samuell parks in excessof Trust funds.
The insufficiency of trust funds to accomplish a trust's purpose is a classic reason for
applyng the cy pres doctrine to modify a trust. SeeBogert's Trusts and Trustees,$ 438.
fWhen cy pres may be used--Impossibility of execution of trust purpose] (viewed on
Westlaw June 16, 2010 (Current through the 2009 Update)). There is no requirement for
a trusteeto find another source of funding before seekingtrust modification under the cy

OFFICE OF THE CITYATTORNEY CIry HALL DALLAS,TEXAS 75201 TELEPHONE 2141670.9519 FAX21416704622
pres doctrine. The casesdo not require the incumbenttrusteeto find a successorwho
would fund the trust from sourcesoutsidethe trust.

Indeed,as you know, the City has for yearsbeen funding the Samuellparks from non-
tnrstassetswithout compensation.If the City hadnot doneso,the Trustwould havebeen
exhaustedyearsago. In view of the City's budgetexigencies,the Park Board and the
City Council could decide to ceasesuch additional funding and to draw reasonable
compensation for the City's trust activitiesand reimbursement
for the City's expenses
benefitting the Samuell parks from the trust. This may exhaust the trust being
administeredby Bank of America andby the Park Board- but for a valid andpermissible
trustpurpose.

Next, you say that the judgment of March g, 1940,restrictsthe distributionsof income
from the W. W. SamuellPermanentFoundationto maintenance,upkeepand permanent
improvementof the Samuellpark propertiesandthat the Trust would needto be modified
beforethe City couldusetheproceedsof a saleof a Samuellparkpropertyfor acquisition
of propertyfor the Samuelltrust. The City agreeswith you.

However,the City notesthat Section253.001(d)of the TexasLocal GovernmentCode

requiresthe City to usethe proceedsobtainedfrom the saleof park land only to "acquire
and improveproperty for the purposesfor which the sold propertywas used." The City
needsmorepark land in certainareasof the City andDr. Samuellclearly wantedto create
parksto be managedby the City's Park Board. Accordingly,if the City were to decide
that it wants to use any of the proceedsfrom the sale of a Samuell park to acquire
additional park propertiesto add to the Trust, the City would need to seek and obtain
courtpermissionto modiff the Trustbeforedoing so.

You then statethat obtainingapprovalby the votersto sell a Samuellpark is a "secondary

requirement"becausethe parkswere not purchasedwith taxpayerfunds. Nowheredoes
Chapter253 of the Texas Local GovernmentCode refer to a "secondaryrequirement."
Nor does Chapter253 make any distinctions basedon whether a park property was
obtainedby spendingta:rpayerdollars.
.)
'
You next say that a court must determinethe trust issuesbefore public hearingsand a
refere'ndumand that your office is preparedto seekdeclaratoryrelief if the Park Board
(or presumablythe City Council)continuesto proceed.The City respectfullydisagrees.
It is improper to ask a court to rule on any of the fust issueswhen the City has not
obtainedthe approvalof the voters at an election to sell any park properties. A court
would not have jurisdiction to issue such a ruling becauseit would be a prohibited
advisoryopinion respectinga nonjusticiableand unripe issue. SeeCity of Garland v.
Louton,69l S.W.2d603, 605 (Tex. 1985);Coalsonv. City Councilof Yictoria,6lO
S.W.2d744,745 (Tex. 1980)(holdingthat a declaratoryjudgmentactionsoughtonly an
advisoryopinionbecausean electionon the petition could resultin its disapproval).In
Coalson,the SupremeCourt held, "[t]he election will determinewhether there is a
justiciableissue,at which time the respondents'complaintsagainst the validity of the
initiatory process under article II70 may be determined by the trial court." Id.
(emphasisadded).

Here, even if the voters were to approvethe sale of one or more of the Samuell parks, the
City could decide not to sell thoseparks for any number of reasons. In other words, voter
approval would merely allow the City to sell thoseparks, not require their sale. Until and
unless the City decidesto sell one or more Samuell parks, there is no ripe controversyfor
court adjudication. You have our commitment that the City will not seek to sell any of
the Samuell parks without first seekingto modiff the Trust to allow such a sale.

We plan to brief the Park and Recreation Board this Thursday (tomorrow) on the legal
issues involved in a proposed sale of park properties. If you have any casesor statutes
that support your positions outlined in your letter, pleaseprovide them to me in advance
so that I may give your position appropriateconsideration.

Sincerely,

ChristopherD. Bowers
First AssistantCity Attomey

Attachment

ThomasP. Perkins,Jr., City Attorney

PeterB. Haskel,AssistantCity Attorney
ChristineLanners,AssistantCity Attorney
LemuelThomas,AssistantCity Attomey
PaulDyer, Director,ParkandRecreationDepartrnent
BarbaraKindig, AssistantDirector,ParkandRecreationDepartment