Untitled Texas Attorney General Opinion ( 1969 )

AUSTXN. TEXAS 78711
September 30, 1969
Sonorable Joe Resweber Op. No. M-482
county Attorney
Harris County
Harris County Courthouse Re: Constitutionality of Article
Houston, Texas 77002 1581c, Vernon's Civil Statutes
Dear Mr. Resweber:
You have requested the opinion of this office as to the con-
stitutionality of Article 1581c, Vernon's Civil Statutes, as it
relates to the power of the Commissioners Court of Harris County
to authorize the executionsof a deed by the County to relinquish,
without consideration, title to certain land to the successors in
title to the grantor thereof. The original grantor had donated
the land to Harris County in 1896 for a right-of-way in connection
with a road laid out by jury view in 1895, without the inclusion
of a reversionary clause benefiting the grantor.~
The power of the County to sell or lease real estate is con-
tained in Article 1577, Vernon's Civil Statutes, and'is set out
below:
"The Commissioners Court may, by an order to be
entered on its minutes, appoint a Commissioner
to sell and dispose~of any real estate of the
county at public auction, and notice of said
public auction shall be advertised at least
twenty (20) days before the day of sale, by the
officer, by having the notice thereof published
in the English language once.a week for three
(3) consecutive weeks preoeding such sale in a
newspaper in the county in which the real estate
is located and in the county which owns the real
estate, if they are not the same In its order
appointing the Commissioner, the Commissioners
Court may provide for reasonable compensation to
be paid to the Commissioner for his services in
connection with such sale The deed of such
Commissioner made in conformity to such order for
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Honorable Joe Resweber, page 2 (M-482)
and in behalf of the county, duly acknowledged
and proven and recorded, shall be sufficient to
convey to the purchasers all the right, title
and interest and estate which the county may
have in and to the premises to be conveyed. Pro-
vided, however, that where abandoned right-of-way
property is no longer needed for highway or road
purposes and the county decides to sell said right-
of-way property, it shall be sold with the follow-
ing priorities: (1) to abutting or adjoining
landowners; (2) to the original grantors, his
heirs or assigns of the original tract from whence
said right-of-way was conveyed; or (3) at public
auction as provided above; provided further, when-
ever any real property, or interest therein, is
owned by any county and is sold or exchanged or
conveyed hereunder and is being used by a public
utility or common carrier having the right of
eminent domain for right-of-way and easement
purposes, the sale, exchangei conveyance and
surrender of possession herein provided for shall
be and remain in all things subject to the right
and continued use of such public utility or
common carrier. Nothing contained in this Article
shall authorize any Commissioners Court to dis-
pose of any lands given, donated or granted to
such county for the purpose of education in any
other manner than shall be directed by law."
Article 1581c, Vernon's Civil Statutes, was passed in 1947 and
has not been subsequently amended. It provides as follows:
'Section 1. Commissioners Courts of the respective
counties in this State are authorized and empowered
to abandon and relinquish to the donors of such
lands and their successors in the title, all lands
donated to their county for county seats, court-
houses and other county purposes, in all cases where
such land has been abandoned and not used for more
than forty (40) years for the purpose of such dona-
tion, at the date of the order of such Court aban-
doning and relinquishing the same, provided, however,
that the provisions of this Act shall not apply
unless it is shown that such donors and their suc-
cessors in title have been in actual continuous,
open, peaceful and adverse possession of such lands
for a period of forty (40) years next preceding tbe
order of such court abandoning.,relinquishing or
conveying of such realty by the Commissioners Court.
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Sonorable Joe Resweber, page 3 (~-482)
*Sec. 2. All orders and judgments of the respective
Commissioners Courts in this State abandoning or
conveying or relinquishing lands which had been
conveyed to their respective counties for county
seat, courthouse or other county purpose, hereto-
fore made, in cases where such land has not been
used for the purpose of its donation for more
than forty (40) years, are hereby validated.
"Sec. 3. Commissioners Courts of the respective
counties in this State are authorized and empowered
to reconvey and relinquish to the donors of such
land, or to their successors in the title, all
lands which were donated and conveyed to any such
counties for county seat , county court, or other
county purposes, which lands have been or may be
abandoned and unused for such county purpose for
a period of more than forty (40) years, as for
failure of consideration of such grant to any such
county."
This statutory provision attempts to give the County Commissioners
authority to return to the grantor, his heirs or assigns, land donated
to the County for county road purposes , and which apparently has not
been used for more than forty (40) years. Such authority is in direct
contravention of the procedures for disposing of county land established
under Article 1577, above quoted, last amended in 1967, and the last
expression on this subject by the Legislature.
Article 3, Section 52 of the Texas Constitution provides, in
part, as follows:
"Sec. 52. The Legislature shall have no power to
authorize any county, city, town or other political
corporation or subdivision of the State to lend
its credit or to grant public money or thing of
value in aid of, or to any individual, assocration
or corporation whatsoever , or to become a stock-
holder in such corporation, association or company:
.0.11 (Emphasis added.)
This constitutional provision clearly bars the County Commis-
sioners from granting county'land, a thing of value to the county, to
the original grantor, his heirs or assigns, without following the pro-
cedures outlined in Article 1577. Dreeben v. Whitehurst, 68 S.W.Zd
1025 (Tex.Conun.App.1934); Attorney General's Opinion NO. O-2660 (1940).
Article 6674q-9, Vernon's Civil Statutes, contained a provision
similar to Article 1581c, also calling for release of state land to
original grantors in special cases This provision was held to be
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Honorable Joe Resweber, page 4 (Mi482)
in conflict with the later amended provisions of Article 6673a, Vsr-
non's Civil Statutes, setting out a detailed procedure for disposi,,g
of state land no longer needed in the State Highway program. State
v. Easley, 404 S.W.2d 296 (Tex.Sup.Ct. 1966). Pursuant to the-
~asley case and the terms of Article 6673a, the State Highway De-
partment disposes of surplus right-of-way land by sale unless a
determination is made that the land is of no value.to the State of
Texas.
For the‘reasons set out above, we axe of the Opinion that
Article 1581c, Vernon's Civil Statutes, is in conflict with Article
3, Section 52 of the Texas Constitution and Article 1577, Vernon@s
Civil Statutes, and is therefore void.
SUMMARY
The provisions of Article 1581c, Vernon's Civil
Statutes, are in conflict with Article 3, Section 52 of
the Texas Constitution and Article 1577, Vernon's Civil
Statutes, and therefore void.
Pre ared by James II.Quick
Ass P stant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Jim Swearingen
Rick Fisher
Gordon Cass
Bill Allen
MEADE F<-GRIFFIN
Staff Legal Assistant
BAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant
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