Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
July 8, 1982
MARK WHITE
Attorney General
Honorable Dan W. Heard Opinion No.MW-489
Supreme Court Building Criminal District Attorney
P. 0. Box 12548
Calhoun County I&: Status of property con-
Austin. TX. 76711. 2546
5121475.2501
P. 0. Box 1001 veyed to city of Port Lavaca
Telex 9101674-1367 Port Lavaca, Texas 77979 by state of Texas
Telecopier 5121475.0266
Dear Mr. Heard:
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
In 1921, the Texas Legislature granted 75 acres of submerged land
2141742.6944 to the city of Port Lavaca. 1921 Tex. Gen. Laws, ch. 80, Pl, at 158.
Section 1 of the grant reads as follows:
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
All right, title and interest of the State of
9151533.3464 Texas... is hereby granted to said city for public
purposes only... (Emphasis added).
1220 Dallas Ave., Suite 202 Section 2 of the grant gives the city the power to erect buildings and
HOUS~O”, TX. 77002.6966
7131650-0666
other improvements for public purposes, to rent the buildings for
public purposes, and to build seawalls and breakwaters. This section
also prohibits the city from taking dredging material from the bay,
606 Broadway, Suite 312 and from placing or permitting any building on the land except for
Lubbock, TX. 79401-3479 ornamental or civic purposes. In other sections, the state reserves
6061747.5236
the mineral rights and the right to build wharves, piers, and
buildings for state or government purposes.
4309 N. Tenth. Suite S
McAHen, TX. 76501-1665 The city now wants to convey part of this land to a certain
5121662.4547 individual as part of the settlement of a dispute between the city and
two companies which also claim an interest in the submerged lands.
200 Main Plaza, Suite 400 The settlement contract calls for the city to convey to this
San Antonio, TX. 76205-2797 individual "its rights from its patent to the remainder of the fee in
5121225.4191 the franchise area of Bauer (Channel Dock and Harbor Company, Inc.)
and to recognize the validity of the grant by the state of Texas to
An Equal Opportunity1
Bauer of its franchise area." According to the terms of the
Affirmative Action Employer agreement, the individual would become the sole stockholder of Bauer
Channel Dock and Harbor Company, Inc. (hereinafter referred to as
Bauer, Inc.). You advise that Bauer, Inc., is a channel and dock
company chartered by the state in 1959 under now-repealed statutes
which granted xhannel and dock companies certain rights to use and
profit from submerged lands in exchange for improving them for
navigation and commerce. However, you also inform us that there was
no legislative action at that time relating to title or possession of
these lands.
p. 1736
Honorable Dan W. Heard - Page 2 W-489)
Your questions are as follows:
1. Can the city of Port Lavaca legally sell
any of the land patented to the city by the 1921
Legislative Act?
2. Are there any statutes, legislative act,
laws, etc., that repeal any section of the special
legislation of 1921?
3. Is the city patented area still for
public purposes only today?
4. Is the city patent a limited grant and
if so, can the city of Port Lavaca convey a good,
clear, fee simple title to any of the area to any
individual or corporation?
Municipal property held in a governmental capacity, i.e., for a
public use, cannot be sold without legislative authority but must be
devoted to the uses and purposes for which it was intended. Property
possessed and used by municipal corporations as public agencies of the
state for the purpose of governmental administration cannot be
alienated by them without special authorization. Weekes v. City of
Galveston, 51 S.W. 544 (Tex. Civ. App. - 1899, writ ref'd); 10 E.
McQuillin, "Municipal Corporations" 5928.37, 28.38, at 77, 83 (3rd ed.
1981). If the city of Port Lavaca owns the submerged land in trust
for the public, then it cannot alienate the land without express
authority from the Texas Legislature. The city's general power to
sell land does not give the city the power to sell land burdened with
a public trust. That power must be granted specifically. Compton v.
Waco Bridge Company, 62 Tex. 715 (1883).
The legislature granted "[a]11 rights, title and interest of the
State to all the land... to [the] city for public purposes only."
(Emphasis added). This language, interpreted in light of the rules of
construction for grants of submerged land and the circumstances
surrounding the grant, shows that the legislature intended to grant
the city the land for public purposes only, and that it imposed a
public trust which restricts the city's power to alienate the land.
The state holds submerged lands in trust for the public. The
state, as sovereign, through its legislature, may grant fee simple
title to submerged lands. City of Galveston v. Menard, 23 Tex. 349
(1859). The state has, however, always had a policy to hold submerged
lands in trust for the people. Title to submerged lands passes only
on a very definite and express grant from the legislature. There is a
presumption that title has not passed, and any grant is strictly
construed against the grantee. Id.; Lorino v. Crawford Packing
Company, 175 S.W.2d 410 (Tex. 1943);ollan v. State, 308 S.W.Zd 122
p. 1737
. I
Honorable Dan W. Heard - Page 3 (MI'-489)
(Tex. Civ. App. - Fort Worth 1957, writ ref'd n.r.e.); City of
Galveston v. Mann, 143 S.W.2d 1028 (Tex. 1940). These rules of
construction support the conclusion that when the legislature granted
the land "for public purposes only," it did not intend to pass fee
simple, unrestricted title to the city. This language is evidence of
the state's intent to protect the public's rights by imposing a public
trust on the land. See Weekes v. City of Galveston, B, (grant and
later joint resolution evidenced legislature's intent to give city
title to submerged land but also to impose public trust on that land),
Hollan v. State, supra, (grant of "all right, title and interest of
State of Texas... for public purposes and for the development of
commerce only... [the navigation district] shall not at any time
grant, convey, give or alien said lands..." held not to pass title in
submerged land to navigation district). The state's reservation of
the right to construct navigation improvements, docks, and wharves is
consistent with this construction.
We conclude that the city of Port Lavaca owns the land in
question in trust for the public. Accordingly, it is without power to
convey it without express authority from the state legislature.
Zachry v. City of San Antonio, 305 S.W.2d 558 (Tex. 1957); City of
Fort Worth v. Taylor, 337 S.W.2d 160 (Tex. Civ. App. - Fort Worth
1960), aff'd. 346 S.W.2d 792 (1961); Weekes v. City of Galveston,
supra.
It is suggested that article 969a-1, V.T.C.S., gives the city of
Port Lavacs the power to convey submerged land to a private individual
with no restrictions as to use. Article 969a-1, section 1, states:
Any city to which the state of Texas or the
Republic of Texas has heretofore relinquished its
right, title and interest in or to any island,
flats, or submerged lands be, and is hereby
granted power and authority to lease, sell, option
and convey all or any portion of such... submerged
lands, and to enter upon development plans and
contracts for any or all of these purposes with
any person, firm, or corporation. public or
private. The foregoing powers may be exercised at
such time and upon such considerations and terms
and for such periods of years as the governing
body of such city shall determine to be proper and
in the public interest....
It is our opinion, however, that the act does not confer upon
municipalities the power to sell land held in trust for public
purposes. Submerged land may be held by a municipality in either its
proprietary or governmental capacity. Land held in a city's
governmental capacity is subject to restrictions and duties not
imposed upon land held in proprietary capacity. Weekes v. City of
p. 1738
.
Honorable Dan W. Heard - Page 4 (MW-489)
Galveston, supra. It has always been the policy of the state not to
grant submerged lands to individuals. Id. The city's power to convey
the submerged lands, described in article 969a-1, is limited by this
longstanding policy and by the words of the grant. Compton v. Waco
Bridge Company, e. Submerged land granted for public purposes
only cannot be conveyed to private persons for private purposes under
the general authority provided by article 969a-1.
The history of grants of certain submerged lands to the city of
Corpus Christ1 supports this reading of article 969a-1. In 1919, the
legislature conveyed certain submerged land to the city of Corpus
Christi, using language almost identical to that used in the instant
grant to Port Lavaca. The legislature later ratified conveyances made
by the city to private persons. Tex. Laws 1941, ch. 40; V.T.C.S. art.
54213. In 1961, eight years after article 969a-1 was passed, the
legislature found it necessary to convey explicitly the right to lease
part of the remaining submerged land without restrictions as to use.
The city of Corpus Christ1 is hereby authorized
and given the power and authority to lease those
certain submerged lands described in Section 4
herein and heretofore relinquished by the State of
Texas to the citv of Cornus Christi. to anv
person, firm or. corporaiion, owning lands;
landfill or shore area adjacent to the described
submerged lands, without restrictions as to public
or private use thereof.... (Emphasis added).
V.T.C.S. art. 54213-2, 51. If article 969a-1 had given the city the
power to lease public lands for private purposes, the legislature
would not have made this grant. State of Texas v. Aransas Dock and
Channel Company, 365 S.W.Zd 220 (Tex. Civ. App. - San Antonio 1963,
writ ref'd).
Article 5421j-2 limits the power of the city to lease:
[Alny lease shall contain a provision prohibiting
the Lessee... from erecting or maintaining thereon
any structure or structures, such as buildings,
with the exceptions of yacht basins, boat slips,
piers, dry docks, breakwaters, jetties, or the
like.
sec. 2. It also recognizes the public's continued right to use the
waters. to wit:
[Tlhe right to use the waters embraced by the
lease shall be reserved to the public, though the
boat slips, piers [etc.] may be limited to the
private use of the Lessee.
p. 1739
. .
Honorable Dan W. Heard - Page 5 (MW-489)
Despite the existence of article 969a-1, then, the legislature
explicitly granted the city a restricted right to lease. In our
opinion, article 969a-1 does not provide the kind of explicit
authority necessary for a city to convey submerged land held for
public purposes. Article 54213-Z does provide such explicit authority
to the city of Corpus Christi, but no such statute has been passed for
the benefit of the city of Port Lsvacs. A general power to sell
property does not override restrictions in the instrument which
conveyed the property. Compton v. Waco Bridge Company, supra.
Thus, without express legislative authority, the city of Port
Lavaca may not sell any of the submerged land patented to the city in
1921. We do not address other statutes or constitutional requirements
which might also be applicable.
SUMMARY
The city of Port Lsvaca cannot legally sell any
of the submerged land patented to the city unless
it receives the express authorization of the
legislature, because the city holds the land in
trust for the people of the city and for the
public generally.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan Plettman
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Susan Plettman
p. 1740