-
. Honorable Preston Smith Opinion No. M-356 Governor, State of Texas Capitol Building Re: Authority of the Legislature Austin, Texas to reappropriate payments of royalties, bonuses and rentals from mineral leases of river beds, channels and areas with- in tidewater limits, including islands, lakes, bays and the bed of the sea belonging to the State of Texas, so as to credit all or part of these payments to the available Dear Governor Smith: school fund. You have requested our opinion on the validity of an Act of the Legislature which would reappropriate payments of royalties, bonuses and rentals from mineral leases of river beds, channels and areas within tidewater limits, including islands, lakes, bays and the bed of the sea belonging to the State of Texas, so as to credit all or part of these payments to the available school fund. In Attorney General's Opinion M-347 (1969), this of- fice stated: II . . . it is our opinion that anything which the state receives, in whatever form, in considera- tion of the oil taken or to be taken from the dedi- cated lands constitutes a part of the purchase price for the sale of such land~or a portion there- of, and therefore such proceeds must be placed in the permanent school fund. . . ." The question now presented therefore concerns whether the land referred-to in your request has been dedicated to the permanent school fund and, if dedicated, whether the Legislature may remove such land from the fund. The various portions of the public domain, including the lands described in your request, bve heretofore been dedi- cated to the permanent school fund by the Constitution of Texas -1755- Hon. Preston Smith, page 2 (~-356) and a&s of the Legislature. Sections 2 and 5, Article VII, Constitution of Texas; Articles 5415a, 5421c-3, V.C.S. Section 2 of Article VII of the Constitution of Texas provides: "All funds, lands and other property hereto- fore set apart and appropriated for the support of public schools;' all the alternate sections of land reserved by the State out of grants hereto- fore made or that may hereafter be made to rail- roads or'other corporations of any nature whatso,- ever ; one half of the public domain of the State: and all sums of money that may come to the State from the sale of any portion of the same, shall constitute a perpetual public school fund." The effect of Section 2 of Article VII of the Consti- tution of Texas was not to vest in the school fund an undivided one-half interest of all the public domain unappropriated at the time of its adoption, but to vest in the school fund one- half of such public land as shoclld remain unappropriated for the other purposes enumerated in the Constitution;- Hbgue v. Baker,
92 Tex. 63,
45 S.W. 1004(1898). In State v. Bradford,
121 Tex. 515, 50 S.W.Zd 1065 (1932), the Supreme Court stated that the Constitution did not independently of legislative acts place beds of channels of navigable streams in the permanent school fund. In determining what was placed in the permanent school fund, in Hogue v.~
Baker, supra, the Supreme Court in constru- ing Section 2 of Article VII of the Constitution of Texas stated: II . The plain purpose of the section is . . to declare what shall be the school fund. Lands theretofore set apart to that fund are preserved tom it, ~:and..it is further declared that one-half of the public domain shall constitute a part of the constitutional dedication. In our opinion, it fixed the right of the school~fund in one- half of the ,unappropriated public domain, but left the legislature, as we have previously intimated, with extended authority over the segregation of that interest by partition of the lands or of their proceeds. It gave to the school fund the right to an equitable half of the public domain, and,in so far the provision executed itself. . . . -1756- Hon. Preston Smith, page 3 (~-356) "It follows from what has been said that, in our opinion, where the legislature has taken af- firmative action, and has provided pro tanto for the segregation of the interest of the school fund, its action is final. . . . I, . . . "Having reached the conclusion that the half of the public domain not dedicated to the school Zun 1 as alrea remains belongs equitably to that~fund, it fol- lows that the survey in controversy is not sub- ject to location for the purpose of.acquiring a homestead donation. . . ." (Emphasis added.) Likewise it is stated in.Armstrong v. Walker,
73 S.W.2d 520, 524 (Tex.Comm.App. 1934): “By the pertinent provisions of chapter 11, Acts (1st Called Sess.) 26th Leg. (19001, and especially sections 1 and 3 thereof, all unap- propriated public lands of this state, with certain exceptions not important here, were set apart and~granted unconditionally to the public free school fund of this state. Under such act of 1900, when proof of~occupancy was not filed in the General Land Office and pay- ment of patent fees made, and patent applied for, before~January 1, 1902, thisland became absolutely-and unconditionally the~property of the said~public school fund. 'In fact, this land.became,unconditionally the-property of such fund as soon as the act~of-1900 be- came effective because no proof.of-occupancy could have.been made, in that no``three years' occupancy ever occurred. "By the plain provisions of section 4 of article 7 of our Constitution above quoted, it is required that the land set apart to khe public free school fund shall be sold under such regulations as may be prescribed by law. Manifestly the above constitutional provision is exclusive in its terms and scope and operates to empower the Legislature to provide by law for the sale of the lands belonging to the public free school fund. Such constitutional provision further operates to deprive the Legislature of power to give away such lands. -1757- Hon. Preston Smith, page 4 (M-356) In other words, the above constitutional pro- vision operates to deprive the Legislature of the power to dispose of public free school lands in any way except by sale. Empire Gas & Fuel Co. v. State,
121 Tex. 138, 41 S.W.(2d) 265. . . ." In 1836 the Congress of the~Republic of Texas defined the boundaries of the Republic of Texas, which includedtthe lands .described in your request. 1 Laws, Republic of Te,xas, p. 133; .~ 1 Gammel's Laws of Texas 1193-1194. The legal history of the State's ownership of waters and submerged lands within the tidewater limits of the Gulf. of, Mexico is reviewed in Butler v. Sadler, 399 S.W.Zd 411 (Tex.Civ. App. 1966, error ref. n.r.e.1. For the,purposes of this opinion it is not necessary to review this entire history, but it may be stated that submerged lands have always been treated in a special category since the earliest days of the Republic. It was held in State v. Bryan,
210 S.W.2d 455(Tex; Civ.App. 1948, error ref. n.r.e.), that: "We think there can be no serious question but that the bed of Green Lake (regardless of its navigableness vel non) was a part of the public domain set aside to the permanent school fund. This appears from the tabulation that was made under Chap. XVI, p. 14, Gen.Laws, 26th Leg., 1899; and from the wording of the Settlement Act (Chap. XI, p. 29, 1st C.S. 26th Leg., 1900, now Art. 5416, R.S.C., Vernon's Ann.Civ.St. Art. 54161, passed pursuant to that computation, the pertinent portion of which Act reads: "'All lands heretofore set apart under the Constitutionand laws of Texas. and all of the unappropriated public domain remaining in the State, of whatever character and wheresoever lo- cated, including any lands [hereafter] recovered by the State, except that included in lakes, bays, and islands along the Gulf of Mexico within tide- water limits * * * 1s set anart and aranted to the permanent school fund of the State."' (Emphasis added.) In~Butler v.
Sadler, supra, it was held that sub; merged lands Qid not become a part of the public school fund. until 1939, by the enactment of House Bill 3, Acts of the - 1758 - Hon. Preston Smith, page 5 (M-356) 46th Legislature, R.S., 1939, Ch. 3, p. 465. The Court pointed out that the Settlement Act of 1900 specifically provided that "this Act shall not have the effect to transfer to the school fund any of the lakes, bays, and islands on the Gulf of Mexico within tidewater limits, whether surveyed or unsurveyed." In 1898 the Supreme Court in Hogue v.
Baker, supra, judicially determined that the half of the public domain not dedicated to the school fund had already been exhausted and whatremains "belongs equitably to that fund." The Court further held: "In our opinion, it [Tex.Const., Art. VTI, Sec. 21 fixed the right of the school fund in one-half of the unappropriated public domain, but left the legislature,, as we have previously intimated, with extended authority over the segregation of that in- terest by partition of the lands or of their pro- ceeds. It gave to the school fund the right to an equitable half of the public domain, and in so far the provision executed itself. The mode of partition or of the segregation of that half, ex- cept as to alternate certificates granted to rail- road companies and other corporations, was left wholly to legislative control; and it seems to us that, if the legislature had made a partition or provided a mode of segregation, its action would have been conclusive. We see no good rea- son why value should not have been the guide in making a division, and, since this involved the determination of a question of fact, its action could hardly be the subject of review by the courts, unless, perchance, it should appear ob- viously and grossly inequitable. . . . "It follows from what has been said that, in our opinion, where the legislature has taken af- firmative action, and has provided pro tanto for the segregation of the interest of the school fund, its action is final. . . ." (Brackets ours.) Therefore the Court in construing Section 2 of Article VII established the principle that the Constitution fixed the right of the permanent school fund in one-half of the unappro- priated public domain, but left to the Legislature the mode of partit~ion or of segregation of that half and held that where the Legislature had taken affirmative action with regard to such partition its action is final. The Legislature in 1900 passed the Settlement Act which settled permanently the division -1759- , . Hon. Preston Smith, page 6 (M-356) of the public domain included in the Settlement Act. The Settle- ment Act (S.S.B. 2, Acts of the 26th Legislature, 1st Called Session, 1900, Ch. XI, p. 29) specifically provided: "Section 1. For the purpose of adjusting and finally settling the controversy between the perma- nent school fund and the State of Texas, growing out of the division of the public domain, there is hereby set apart and granted to said school fund four million, four hundred and forty-four thousand and one hundred and ninety-five acres or all of the ; unappropriated public domain remaining in the State of Texas of whatever character, and wheresoever located, including any lands hereafter recovered. by the State, except that included in lakes, bays and islands,along the Gulf of Mexico within tide water limits, whether the same be more or less than said four million, four hundred and forty- four thousand one hundred and ninety-five acres; provided, this act shall not have the effect to transfer to the school fund any of the lakes, bays and islands on the Gulf of Mexico within tide water limits whether surveyed or unsurveyed." Nothing contained in the Constitution or in the cases construing Section 2 of Article VII prevents the Legislature from placing those lands excluded by Section 1 of the Settlement Act, above quoted,~in the permanent school fund. The Legislature has subsequently (in 1939 --Article 5421c-3, and in 1941--Article 5415a) placed these lands in the permanent school fund,and it is our opinion the same rule must apply to those lands as was applied to lands contained in the Settlement Act, to wit: the legislative action is final. Furthermore, it was held in Eyl v. State,
84 S.W. 607(Tex.Civ.App. 1904, error ref.): II . If, however, on account of any de- . . fects in the certificates, or irregularities in their location or survey, said lands were not at once, upon such survey, appropriated to the school fund, they were so appropriated by the act of February 3, 1883; and in either case the Legislature could not by subsequent legislation change or destroy the character of these lands as public school lands. . . ." -1760- . . Hon. Preston Smith, page 7 (M-356) Although it is not necessary to the conclusion reached, we note that Section 5 of Article VII of the Constitution of Texas, as amended November 3, 1964, reiterates this principle in the following language: "The principal of all bonds and other funds, and the principal arising from the sale of the lands hereinbefore set apart to said school fund, shall be the permanent school fund, and all the Interest derivable therefrom and the taxes herein authorized and levied shall be the available school fund. The available school fund shall be applied annually to the support of the public free schools. And no law shall ever be enacted appropriating any part of the permanent or available school fund to any other purpose whatever; nor shall the same, or anv part thereof ever be appropriated to or used fo; the support of any se&a&n school; and the available school fund herein provided shall be distributed to the several counties according to their scholastic population and applied in such manner as may be provided by law." (Emphasis added.) YOU are therefore advised that it is - opinion that the Legislature~does not have the authority to reappropriate payments of royalties, bonuses and rentals from mineral leases of river beds, channels and areas within tidewater limits, in- cluding islands, lakes, bays and the bed of the sea belonging to the State of Texas, so as to credit all or part of these payments to the available school fund. SUMMARY The,Legislature does not have authority to re- appropriate~payments of royalties, bonuses and rentals from mineral~leases of river beds,, channels and areas within tidewater limits, including islands, lakes, beys and the bed of the sea belonging to the State of Texas, so as to credit all or part of these pay- ments to the available school fund., This can only be accomplished by constitutional a dment. 97 truly yours, At orney General, of Texas j - 1761v ., . Hon. Preston Smith, page 8 (M-356) Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Roger Tyler Houghton Brownlee Alfred Walker Harold Kennedy W. V. GEPPERT Staff Legal Assistant - 1762 -
Document Info
Docket Number: M-356
Judges: Crawford Martin
Filed Date: 7/2/1969
Precedential Status: Precedential
Modified Date: 2/18/2017