Untitled Texas Attorney General Opinion ( 1957 )

Mr. William J. Burke
Executive Director, " 'I
State Boardof Control .~
Austin, Texas ';
Opinion Rdr.``-60
Re: The authority of the State
Board of Co&sol to sell
or lease State owned tide-
lands in Clear Creek, Harris
County.;Texas, for the pur-
., pose of constructingpiers,
boat docks, fishing cabins,
residences,etc.
Dear Mr. Burke:
.,
In a:recent opinion request of this office, you, in
effect, state the fc~l'lowlng:
:~
.
In the 1930's Mr. James~H. Charleston'builta fishing
wharf and pier consisting,,@a;vood frame building resting on
wooden piles, on submerged,landsIn Clear Creek,nesr its
mouth in Galveston Bay, Harris County, Texas'.This land is
regarded as State land.
You then ask whether the State Board of Control has
authority to execute Iea~s$s.
or -authorityto sell such lands
as above described under the provisionsof Articles 665 and
666a, Vernon's ~CivilStatutes, or under any,other acts of
the Legislature. ~.;,... ,~
Article 666a'providesthat the 'StateBoard .ofControl
may lease for agriculturalor 'commercialpur$oses all public
grounds'underthe cha'rgeand contro.1of the State Board of
Control.
Article 665 provides that the State Board of Control
shall have charge and control of all public buildings, grounds,
Mr. William J. Burke, Page 2 (``-60)
and property of the State.
A search of Vernon'8 Clvll Statute8 fail8 to reveal
any other Legislativeacts which might pertain to the leasing
or sale by the State Board of Control of lands such as those
described above.
It is said in 38'Tex. Jur., Section 19, State of Texas,
page 836:
"Power la respect to State property rights
18 vested In the Legislature,and the Legls-
lature alone may exercise the power necessary
to the enjoyment and protection of those right8
by the enactment of statutes for that purpose."
Thu8, authority for the dispo8itiODor control of
State 'propertyor lands must emanate from,elther the Texas
Constitutionor the Legislature.The Constitutionof Texas
does not authorlee the State Board of Control to dispose of
tidelands.And it is sald.ln Lorlno v. Crawford Packin Com-
142 Tex. 51, 175 S.W. 2a 410 at page56,- Tc$x~,
-&---
i%P 26 by Justice Sharp, regarding legislatived&sposition
of tidelands or lands under navigable waters:
"The rule is firmly establishedin this
State that land under navigable water8 is,
withdrawn from the general provisions of the
statutes conferringupon the Laud Commissioner
the right to contract for the sale or lease
thereof, and passes by grant or sale only *hen
SO expressly provided for by the soverelnn auth-
and there Is no presumptionthat the
authorieedsuch grant or sale."(Emphasis
See City of Galveston'v.Mann, 135 Tex. 319, 143 S.W.
2d 1028; State v. BradforT 121 Tex. 515, 50 S.W.2d 1065;
Landry v. BobisLm Tex: 295, 219 S.W. 819; DeMeritt v.
Robison, 102 Tex. 358, 116 S.W. 796; Hynes v. Packard, 92-
Tex.44, 45 s.W. 562; City of Galveston v. Menard Tex.
349; Diversion Lake Club v. Heath 1 b T 12 gA2:.W. 2d
441; Rosborough v. PI&on, 12 Tex: Cfv. izp. 1:; 34 S.W.
;/';;Heard v. Town of Refuglo, 129 Tex. 349, 103'S.W. 2d
Mr. William J. Burke, Page 3 &w-60)
Since the days of the Republic, the courtsof this
State have clearly and emphaticallyheld that leases, grants
or sales of tidelands or lands underlying navigablewaters
are authorized and valid only'when clearly and expressly
provided for by the sovereign authority.We are therefore
of the opinion that the authorizationto the State Board
of Control to lease public grounds belonging to the State
of Texas under Article 666a is not such a clear and ex-
press authorizationby the sovexgn as will permit the
State Board of Control to lease or sell lands covered or
periodicallyinundated by tidal waters. 'Iftidelands or
submerged lands were to be included in Article 666a, the
act would have had to describe the lands as such.
We must therefore advise you that the State Board
of Control has no authority to lease or sell the lands
periodicallyinundated by tidal waters in Clear Creek,
Harris County, Texas, referred to in your opinion request.
SUMMFLRY
The State Board of Control has no authority
to lease or sell lands periodicallyinundated
by tidal waters in Clear Creek, Harris County,
Texas.
Yours,very truly,
WILL WILSON
~AttorneyGeneral of Texas
APPROVED:
OPINION COMMITTEE
H. Grady Chandler
Chairman
JMR:bk