Untitled Texas Attorney General Opinion ( 1972 )

September13, 1972
Honorable Bryan Davis, Jr. Opinion No. ~-1213
County Attorney
Nacogdoches County Re: The authority of Stephen F.
Box 736 Austin University to close a
Nacogdoches, Texas 75961 street passing through its
campus in Nacogdoches without
the consent of the City of
Nacogdoches.
Dear Mr. Davis:
In your recent letter to this office, you asked our opinion
as to the authority of Stephen F. Austin State University to
close a street passing through its campus in Nacogdoches with-
out the consent of the City of Nacogdoches.
The facts, as presented by you, are that the street over
school property has been in use by the public in Nacogdoches
only since about the year 1938, but that it had not existed as
a street or road prior to that time nor had it been used by the
public in any manner. You further stated that there had been no
formal dedication of this school property asa public road. The
University's appropriation of funds with which to pave the street
was provided by the Forty-fifth Legislature, Regular Session,
1937, General and Special'Laws of Texas, 1036. This $15,000 item
was appropriated for the year ending August 31, 1938. At a meet-
ing of the City Commission of Nacogdoches on February 15, 1938,
the Commission authorized the expenditure of an amount not to ex-
ceed $3,000, "to co-o erate with the State in this important street
extension. W (emphasis
Ad,. a
There is ample authority in the Board of Regents of the
University to regulate and control school land and grounds, in-
cluding the power to close a street crossing the campus, if such
a closing does not contravene some paramount right in the public
at large. (See Sections 101.11 and 101.41 of the Texas Education
Code).
Section 2.04, Texas Education Code, is specific authority
for closing the street here in question. No reimbursement of
funds is required because no title to land was ever acquired
from the University.
-5953-
Honorable Bryan Davis, Jr., page 2 (M-1213)
The Texas Supreme Court stated in the case of Conle
Qauqhters of the Republic, 106 Tex. 80, 156 S.W. 1tn-m-d+
at page 200 that:
"It is well established that the State Legislature
is clothed with all governmental power which re-
sides in the people . . . . . The power of the
State in respect to its property rights is vested
in the Legislature, and the Legislature alone can
exercise the power necessary to the enjoyment and
protection of those rights, by the enactment of
statutes for that purpose."
The Legislature authorized the expenditure of $15,000
in 1938 to pave a street across the school property in
Nacogdoches. There was nothing further authorized in this
aoorooriation bill concernins that street, and nothinq could
by&erred from it to abrog&e the power of the school trustees
to control its use or non-use. Conley v. Daughters of the
Republic of Texas, 151 S.W. 877 (Tex. Civ. App. 1912, error
granted. 106 Tex. 80. 156 S.W. 197 (19131 Reversins 151 S.W.
677 on other groundsj. (Attorney General's Opinion No. V-1254,
1951). The Legislature further has not seen fit to prescribe
a means by which land owned by the State could be taken by
cities, towns, or villages of this State, or private citizens.
The county's right to open a public road across public lands
(Article 2351, V.C.S.) is restricted by the provisions of
Article 6715, V.C.S., relating to public land owned and used,
or for actual use by the State or by public
. . State institutions
for public purposes. &i&&ton vs. Pwdio ounty
812 (Tex. Civ. App. 1911, writ ref.). (See a"180Arki G:Zi
of the Texas Education Code).
The road in question was constructed principally with
State funds some thirty-four (34) years ago on property owned
by the present Stephen F. Austin State University, and you
have informed this office that the campus portion of Raguet
did not exist as a street or road prior to 1938. It is clear,
therefore, that no public use of the street on campus could
have existed prior to 1938 to give rise to prescriptive ease-
ment in the public. It is also certain that since 1938, the
public could not have acquired a prescriptive easement in that
street over the campus. (See the discussion of prescriptive
easements and supporting authorities in 21 Tex. Jur.2d Ease-
ments 925 and 2 Tex. Jur.2d Adverse Possession 5161.
Based upon facts presented by you and the foregoing dis-
cussion, we are of the opinion that Stephen F. Austin State
-5954-
.
Honorable Bryan Davis, Jr., page 3 (M-1213)
University in Nacogdoches has the authority to close that
portion of Raguet Street within the confines of its campus,
and may do so without the consent of the City of Nacogdoches.
SUMMARY
Stephen F. Austin State University in
Nacogdoches has the authority, without the
consent of the City of Nacogdoches, to close
that portion of Raguet Street constructed in
1938 over school property and lying within the
campus area.
ORD C. MARTIN
General of Texas
Prepared by James H. Quick
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Linward Shivers
J. Milton Richardson
Ben Harrison
Fisher Tyler
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-5955- ’