Full Opinion

September 28, 2026 The Honorable Christina Sanchez El Paso County Attorney 320 South Campbell Street, Suite 200 El Paso, Texas 79901 Opinion No. KP-0532 Re: Independent school district authority to lease certain facilities and allow alcohol service by lessees (RQ-0624-KP) Dear Ms. Sanchez: You generally ask whether an independent school district may lawfully permit the sale of alcohol on district-owned properties during the temporary possession of those properties by a third- party lessee. 1 As background, you inform us that Socorro Independent School District (“SISD”) owns two complexes “with stadium seating, fields, concourses, suites/banquet areas, parking, and adjacent/embedded administrative offices and classrooms.” Request Letter at 1. You stipulate that SISD’s use of these complexes “is seasonal and event-based,” including for “athletics, fine arts, staff functions, [and] limited instruction.” Id. You tell us that SISD has been approached about entering into “short-term leases for concerts and other special events that [would] include the sale of alcoholic beverages to attendees.” Id. During each lease term, which would generally span two or three days, “no student instruction or SISD sponsored activities” would take place, and “no district events would occur within the leased spaces.” Id. at 1–2. In light of these facts, 2 you pose two closely related questions. First, you inquire “whether a school district may lease its stadium or complex facilities to third-party lessees for non-school events and, as part of such lease arrangements, permit the sale and service of alcoholic beverages by the lessee or its TABC-licensed vendor.” Id. at 2. Second, you ask whether “leased event spaces continue to constitute a ‘building of a public school’ or ‘grounds of a public school’” under Education Code subsection 37.122(a)(1) “during a short-term lease granting the lessee exclusive possession of the premises and prohibiting simultaneous school use.” Id. Because your second 1 See Letter from Hon. Christina Sanchez, El Paso Cnty. Att’y, to Hon. Ken Paxton, Tex. Att’y Gen. at 1–6 (Nov. 6, 2025), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2025/RQ0624KP.pdf (“Request Letter”). 2 “As this office does not attempt to resolve fact questions, we consider your statement of facts solely as premises for your questions.” Tex. Att’y Gen. Op. No. GA-0884 (2011) at 1 n.2. We note that “additional or different facts may result in a different conclusion in a given case.” Tex. Att’y Gen. Op. No. KP-0510 (2026) at 1 n.2 (quoting Tex. Att’y Gen. Op. No. KP-0446 (2023) at 1 n.2). The Honorable Christina Sanchez - Page 2 question presumes that the complexes otherwise qualify as the grounds or a building of a public school, we do not resolve the factual question of whether any particular space is such a building but instead address the legal question of whether a lease may alter that statutory status. In so doing, we treat your two questions together and, as related guidance, also explain the potential consequences of entering into a lease agreement that contemplates the performance of illegal activities. A board of trustees generally possesses implied authority to lease school district property. We begin with an independent school district’s authority to lease its property. 3 Independent school districts are “governed by a board of trustees elected by voters within a trustee district” and “enjoy a large amount of political autonomy.” San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 282 (Tex. 1996); see also TEX. EDUC. CODE § 11.051(a)(1) (providing that the board governs the district “as a body corporate” and oversees its management). Nevertheless, as political subdivisions, school districts “ ‘possess only such powers and privileges as have been expressly or impliedly conferred upon them.’ ” Univ. of the Incarnate Word v. Redus, 602 S.W.3d 398, 405 (Tex. 2020) (quoting Payne v. Massey, 196 S.W.2d 493, 495 (Tex. 1946)). Subchapter D of Chapter 11 of the Education Code sets forth a board of trustees’ powers and duties. TEX. EDUC. CODE §§ 11.151–.186. Within that subchapter, section 11.151 provides that “[a]ll rights and titles to the school property of the district, whether real or personal, shall be vested in the trustees and their successors in office.” Id. § 11.151(c). The board may also “enter into contracts as authorized under [the Education Code] or other law and delegate contractual authority to the superintendent as appropriate.” Id. § 11.1511(c)(4). A “lease” is simply “[a] contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration.” JBrice Holdings, L.L.C. v. Wilcrest Walk Townhomes Ass’n, 644 S.W.3d 179, 186 (Tex. 2022) (alteration in original) (quoting BLACK’S LAW DICTIONARY 1066 (11th ed. 2019)); see also Bagby 3015, LLC v. Bagby House, LLC, 674 S.W.3d 609, 621 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (“A commercial lease is a type of contract.”). 4 The board therefore may look to its authority over district real property and its general contracting power as support for its authority to lease district property. 5 3 You do not indicate whether the complexes were financed with outstanding tax-exempt bonds. See generally Request Letter. Nor do you tell us whether other district- or funding- specific factors might impose additional limitations. See generally id. Thus, nothing in this opinion should be read to address how the complexes’ private use might affect the tax-exempt status of any outstanding bonds or whether other considerations, such as bond covenant restrictions, may prescribe a board’s authority to lease property. 4 We note that the brevity of the contract’s duration does not change its status as a “lease.” JBrice Holdings, 644 S.W.3d at 186 (observing “that a short-term rental is a lease so long as it maintains the characteristics of a lease; namely, the right to use and occupy the property”). 5 Other provisions in Chapter 11 provide further confirmation of a boards’ leasing authority. For example, subsection 11.173(a)(4) conditions a religious organization’s use of school district facilities for certain religious activities on whether the organization is “subject to the same rental terms for the use of the facilities that a (continued…) The Honorable Christina Sanchez - Page 3 Although “no statutory provision expressly authorizes a board of trustees to lease school district real property to another entity,” Tex. Att’y Gen. Op. No. KP-0338 (2020) at 1–2, attorney general opinions have long recognized “boards of trustees’ implied authority to permit private groups to lease school property when the lease does not interfere with the property’s school purpose,” id. at 2 (quoting Tex. Att’y Gen. Op. No. GA-0321 (2005) at 5); see also Tex. Att’y Gen. Op. No. O-5354 (1943) at 2 (observing “that the leasing of school property for non-school purposes” may be lawful “provided the lease is made under conditions which prevent its interfering with the conduct of the school”). The doctrine itself traces back still further to a 1913 decision by the Dallas Court of Civil Appeals, which held that leasing “a portion of [an] unused school campus for the purpose of playing baseball thereon during [summer] vacation” was “not ultra vires or unauthorized.” Royse Indep. Sch. Dist. v. Reinhardt, 159 S.W. 1010, 1011 (Tex. Civ. App.—Dallas 1913, writ ref’d). We are aware of no court that has disturbed this longstanding recognition of school board authority, and we decline to do so here. 6 A school district’s board of trustees cannot employ a lease to authorize alcohol possession on the grounds or in a building of a public school. Having confirmed a board of trustees’ authority to lease district property, we next examine whether the statutes you highlight impose alcohol-related restrictions on this authority. Your request identifies three relevant provisions. 7 Request Letter at 3–5. The first provision—Education Code subsection 38.007(a)—requires a board to “prohibit the use of alcoholic beverages at a school-related or school-sanctioned activity on or off school property.” TEX. EDUC. CODE § 38.007(a). The other two prohibitions appear in subsection 37.122(a), a penal statute that provides the following: (a) A person commits an offense if the person possesses an intoxicating beverage for consumption, sale, or distribution while: (1) on the grounds or in a building of a public school; or nonreligious organization would be subjected to for that use.” TEX. EDUC. CODE § 11.173(a)(4). Similarly, subsection 11.1542(a) requires a board to allow certain charter schools to bid on leasing “an unused or underused district facility” for non-district purposes before offering the facility to others. Id. § 11.1542(a). 6 As we have emphasized in a prior opinion, a school district must still consider whether the lease of its property for private purposes meets the Reinhardt standard. See Tex. Att’y Gen. Op. No. KP-0397 (2022) at 3 n.3; see Reinhardt, 159 S.W. at 1011 (explaining that district property may be used for private purposes so long as “such use is not so inconsistent with the purposes to which the property has been dedicated or set apart”). Given your stipulation that the district’s use “is seasonal and event based,” Request Letter at 1, we presume the board of trustees does not intend to enter into the contemplated short-term leases during periods or under terms that would hinder or otherwise prejudice the SISD’s own use of the complexes. 7 Although you also reference Education Code section 11.179, Request Letter at 4–5, we understand you to disclaim any argument that the relevant properties are “a performing arts facility owned by the district,” TEX. EDUC. CODE § 11.179 (authorizing a board of trustees to allow alcohol consumption, possession, and sales at such facilities under some circumstances); Request Letter at 4 (characterizing section 11.179 as “a facility-specific exception, not a general waiver for stadiums”). We therefore need not address this provision. The Honorable Christina Sanchez - Page 4 (2) entering or inside any enclosure, field, or stadium where an athletic event sponsored or participated in by a public school of this state is being held. Id. § 37.122(a). You represent that the complexes would be used “only when there is no public- school athletic event in the enclosure” and would not involve “school-related or sanctioned” events. Request Letter at 5. Under these facts, we agree that the sole remaining issue is whether subsection 37.122(a)(1) applies. See id. You appear to indicate that the complexes generally qualify as grounds or buildings of a public school for purposes of subsection 37.122(a)(1) but would temporarily lose that status during the lease term—only to regain it upon expiration of the lease. 8 See id. at 2 (asking whether “the leased event spaces continue to constitute a ‘building of a public school’ or ‘grounds of a public school’” during the lease term (emphasis added)). In doing so, you focus on the private lessee’s use of the complexes, asking “whether the specific leased areas . . . are functioning, during the lease, as a ‘building of a public school.’” Id. at 5. You contend that carefully drafted lease provisions could establish “that the leased footprint did not function as a school ‘building’ during the event,” id. at 5, and thus “the leased spaces should not be treated as active ‘public school buildings or grounds’ for alcohol-prohibition purposes” during the lease term, id. 2 (emphasis added). Accordingly, we address whether a lease can authorize alcohol possession for consumption, sale, or distribution on the grounds or in a building of a public school. See TEX. EDUC. CODE § 37.122(a)(1). A lease grants the lessee the right to possess, use, and enjoy the lessor’s property for a limited term but conveys no title. Franklin v. Jackson, 847 S.W.2d 306, 308 (Tex. App.—El Paso 1992, writ denied); cf. Tex. Co. v. Daugherty, 176 S.W. 717, 718 (Tex. 1915) (distinguishing “an ordinary leasehold,” a “mere demise of the premises for a given period,” from a conveyance of a mineral interest). Rather, the lessee “occupies the land or premises of another in subordination to the other’s title.” Redgrave v. Schmitz, 584 S.W.2d 374, 376 (Tex. App.—San Antonio 1979, no writ). Because a lease is derivative of the lessor’s estate, the lessee cannot receive greater rights in the property than the lessor possesses. See, e.g., Travis Cent. Appraisal Dist. v. Signature Flight Support Corp., 140 S.W.3d 833, 843 (Tex. App.—Austin 2004, no pet.) (mere lessors “could not have conveyed or assigned . . . any rights or interests greater than those they possessed”); Hoskins v. Chicago Park Dist., 43 N.E.2d 546, 548 (Ill. 1942) (confirming a lessee “acquire[s] no greater rights than his lessor”). Put another way, a lessor cannot convey what it does not have. See Myers- Woodward, LLC v. Underground Services Markham, LLC, 716 S.W.3d 461, 469 (Tex. 2025) 8 We previously concluded that “the prohibition in subsection 37.122(a) concerns a building of an elementary school or a secondary school rather than all school district buildings” but noted that “determin[ing] whether a particular building is a ‘building of a public school’ subject to [that] prohibition” would inappropriately involve resolving facts through the opinion process. Tex. Att’y Gen. Op. No. KP-0397 (2022) at 2–3 (emphasis added). Here, we presume—without deciding—that your representations about the complexes are accurate for the limited purpose of addressing your question. See Tex. Att’y Gen. Op. No. KP-0446 (2023) at 5 (“assum[ing] without deciding” that a city’s charter granted certain authority “for the limited purpose of addressing whether” state law preempted that authority). The Honorable Christina Sanchez - Page 5 (stating that “a grantor cannot convey to a grantee a greater or better title than [he] holds,” internal quotations omitted). Presuming that the complexes are indeed public-school grounds or buildings, neither the district nor any persons acting on its behalf may legally “possess[] an intoxicating beverage for consumption, sale, or distribution while . . . on the grounds or in a building of a public school.” TEX. EDUC. CODE § 37.122(a)(1); see also TEX. GOV’T CODE § 311.005 (defining “person” to include a “government or governmental subdivision or agency”). And because the district itself lacks these rights, it cannot authorize a private lessee to engage in this statutorily prohibited conduct. Indeed, this conclusion aligns with your own treatment of subsections 38.007(a) and 37.122(a)(2), as you correctly note that “[n]o lease term can alter either prohibition.” Request Letter 4–5. Nothing in the text or structure of subsection 37.122(a)(1) warrants different treatment. A lease provision authorizing alcohol sales on the grounds or in a building of a public school risks voiding the entire agreement and leaving the district unable to enforce the lessee’s obligation to pay rent. Finally, we note that serious consequences may arise if the school district enters into an illegal contract. Generally, “the parties to a lease agreement are considered the masters of their own choices.” Comm’r of Gen. Land Office of State v. SandRidge Energy, Inc., 454 S.W.3d 603, 608 (Tex. App.—El Paso 2014, pet. denied). “Freedom of contract, however, is not unlimited.” Merry Homes, Inc. v. Chi Hung Luu, 312 S.W.3d 938, 950 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Parties may contract with respect to property only so long as “they do not contravene public policy and their contracts are not otherwise illegal.” Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 279 (Tex. 2018) (quoting Curlee v. Walker, 244 S.W. 497, 498 (Tex. 1922)). A contract that can only be fulfilled by “violating the law contravenes public policy and is void.” 9 Merry Homes, 312 S.W.3d at 945. And such agreements are particularly unenforceable where “the contract involves the doing of an act prohibited by statutes intended for the protection of the public health and welfare.” Id. at 946 (quoting Peniche, 580 S.W.2d at 155). Even a single illegal contract provision carries significant risk. To be sure, an illegal provision “may generally be severed so long as it does not constitute the essential purpose of the agreement.” In re Poly-Am., L.P., 262 S.W.3d 337, 360 (Tex. 2008). But severability requires courts to carefully construe “the language of the contract itself” to determine “whether the remaining provisions are independent or mutually dependent promises” such that “the invalidity of a particular provision affects the rest of the contract.” Id. In such a case, if a court concludes the 9 By contrast, a “contract is not void merely because the parties may have performed the contract in an illegal manner or committed illegal acts in carrying out the contract” so long as “the parties could perform the contract in a legal manner.” Merry Homes, 312 S.W.3d at 945–46. Further, a provision “that is capable of being enforced as written” is not void and “will be enforced except to the extent prohibited by law.” Philadelphia Indem. Ins. Co. v. White, 490 S.W.3d 468, 484 n. 8 (Tex. 2016). Determining whether any particular “contract, although apparently legal on its face, involves the violation of a statute” requires “looking at the specific facts of the case and deciding the intention of the parties in executing the contract,” Peniche v. Aeromexico, 580 S.W.2d 152, 156 (Tex. App.— Houston [1st Dist.] 1979, no writ), which are matters beyond the scope of an Attorney General opinion, see supra n.2. The Honorable Christina Sanchez - Page 6 lessee would not “have entered into the agreement absent the unenforceable provisions,” the entire agreement—including the lessee’s obligation to pay rent—could be void. Id. The Merry Homes decision perhaps best illustrates this danger in the commercial-lease context. There, the tenant contracted to “use the premises only for the purpose of operating a nightclub or bar and for ‘no other’ purpose.” Merry Homes, 312 S.W.3d at 942. That specific use violated a local ordinance prohibiting alcohol sales within 300 feet of a public school. Id. at 946– 47. Although “operating a nightclub or bar is not illegal in itself,” the court concluded that the “operation of a nightclub or bar at this particular premises is illegal regardless of who operates it.” Id. at 948 (emphasis added). Accordingly, the court held that the landlord could not “indirectly receive benefits—monthly rental payments—from what the law says it cannot do directly.” Id. at 950. Ultimately, the degree to which any contemplated lease exposes the district to similar risks will depend on the agreement’s specific language and structure. The Honorable Christina Sanchez - Page 7 S U M M A R Y A board of trustees of an independent school district generally may lease district property to private groups when the lease does not interfere with the property’s educational purpose. Education Code subsection 37.122(a)(1) prohibits alcohol possession for consumption, sale, or distribution on public-school grounds or in public-school buildings. A lease cannot override this restriction, and a school board cannot authorize a private lessee to do what the district itself is forbidden from doing. Any provision attempting to permit alcohol on such property risks rendering the entire lease void and leaving the district unable to enforce the lessee’s rent obligation. Very truly yours, KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General RALPH MOLINA Deputy First Assistant Attorney General D. FORREST BRUMBAUGH Deputy Attorney General for Legal Counsel MICHAEL C. COTTON Chair, Opinion Committee