Untitled Texas Attorney General Opinion ( 1945 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVERSELLERS
ATTORNEY GENERAL
Honorsbli H. Z. raubfoa
Xmlrtsnt Fxeoutive 3eorstary
CSm, Fish end oyster Comn,lsrion
AWti5, lbXS8
rasr sir:
r of November 7, 194s.
xe are ,attaohing a
e type or mlmagel3snt lioense .~
Of the prOXfiPity Of th0 open sOa
Fslo >lnto County, ue would eppreoiate
5 nt your earllost 00n~enienoe.~
The l3r8x08 River Con~rvotfon and Reobmation Di8-
triot is (1 Stete A@S5Oy areated end employed by the State,
wreuant to the provlulonr of srotion 39, Artlole 16, of the
State corietitution, to ooneerve and .&velop the wters 0r the
Erazos River and tba land sfieoted Wweb:. It ir 15 the nature
Of I quasi-publio oorporatlon, and bein@ a component part of
Ronorable 11.. E. Faubion - page 2
the state, it derives all of its pokers and. authority by
expreos delegation from the state. iLike similar subordinato
gtate Agencies, it has only the powe?s and duties which are
clearly set forth and defined by the Constitution and Statutes
of the state. Titl% 128, oh. 8, special Acts, page 536,
v. A* c. s.; Acts 1929, 41St Legislature, 26 C. S.;Sp. I,..
page 22, ch. 13, as anended; 37 Tex. Jur. 065, Lower Colorado
River Authority vs. KcGravr, 125 Tax. 268; Crouoh vs. Posey,
69 S. W, 1001; 37 Tax. Jur. 950, Sec. 81.
Although we are well aware of the worthiness of the
,~
,, oause In this case, there is nothing in the 1anSuage of the
Act establishing the Erazos River Conservation end Reclamation
Distriot whioh either expressly or by olear inp&ication author-
izes the proposed contract here. Wha.tever authority the Dis-
trict has to dispose of or burden Its property is.derived
from Section 12 of Tit10 128, chap. 8, vol. 21, Special Acts,
pp 536-546, V. A* d. S., as amended, which is set out in the
following language:
“Sec. 12. Nothing in this Act shall be oon-
strued as authorizing she Distriot, and it shall,
not be authorized to mortgage, or otherwise en-
ounber any of its property or’ any k ind, real~op;ecr
sonal or mixed, or any interest therein, or
quire any such property or interest subjeot.to a
mortgage or oonditional sale, provided that this
section shall not be construed ss prevonting the
pledging of the revenue of the Distriot as herein
authorized. Nothing in this AOt shall be construed
‘as authorizing the sale, release or othor d’isposition
of sny such property or Interest by the Dlstriot,
or any receiver of any of the District property,
.or ,throug,h any court proceedings, or otherwise;
provided, however, that tho District may sell.for
.oash any such property or interest in on ag’grogate
value not exoeeding the 8um of One Rundrod Thousand
(~lOO,OOO.OO) DOllaxS in any one year if the Board
by affirmative vote of clevon of its members shall
have determined that the property or interest is not
necessary to tho business of the District, and shall
Ronorable 11. R. Faubion- page 3 .
have approved the termsof any such sale it
being the intention:of this Act that excipt by
sole 06 in this section oxppre3nly auti-iorlzed, no
such property or interest shall ever come into
the ovtilership or oontrol, directly or indireotly'i
of any person, firm or corporation other than a
public authority created under the laws of the.
state of Texas. All property of the District
shall be at all tines exempted from forced sale,
:ii.:;i-:_
y;.:~';5~..:.:_
; and nothing in this Act contained shall authorize
the sale of any of the property of the District
under any judgment rendered in any suit end such
sales are hereby prohibited and forbidden.*
(Xm~hasis added)
4s seenfrom the underlined portion of the above
Sootion 12, t~he District is expressly limited and cnnnot
'encumbers its property. TGth resyoct to the nature of
Iour Droposed Contract, the greet weight of authority In
other jurisdictionfi,. and also that vihich we, believe is
;resently the law in the State of Texas, is adequately
SfrJted by the Galveston Court of civil Appeals in the case
Of Anderson et us v. [Iipson, 144 2. :i'. 2nd 948 (&940), .in
:be rOuOme language:
.:. ,.:,::~:,:~>: ~. "The rule laid down by the text writers
and'supsorted by the great weight of authority
frox other juris&iotions is that the right of
one person to hunt on premises owned and in the
posceseion of another may be acquired by a ernnt
or lease of hunting rriviloges, and that vhen so
granted it is not a mere license but Is 811 in-
terest in tho real estate in the'nature of an
incorporeal hereditament, and that, as suoh, it
is within the statute of frauds and requiros a
writing for its oreatlon." AlSO seo C. J. S. 4;
32 A. L. R. 1527; 17 A?. JUT. 9.57.
I.
.
z-f%
2onorable B. E. Faubion - pace 4
As it is our belief thatthe instrument YOU
;ropose to execute oomes within the determination .of the
Soregoing authorities, suah instrument viould then amount
to an enoumbrance uPon the property .oS the District, whloh
1s expressly forbidden by the 1onpuac.e of the statute, supre.
42 G. J. s. 549; BouvierlS Law Diotionary, Vol. 2, p. 1530;
words and phrases, Vol. 20, p. 605.
Further, in a former opinion of this department No.
O-1287, dated Xay 15, 1940, addressed to the Honorable Frank
I). Quinn, it was held that the Eraxos River Gonservstion and
jgeolamation District did not have the power to convey by deed
P determinable fee interest in its lands to another state agency
because .the District had no pov,er sufficiently speaific to
dispose of Its property in such manner. Although the deed
therein recited a consideration of Yen Dollzrs and other
eood and valuable coilsideration, 11no actual cash consideration
~8s to pass between the parties.' The Distriot aid not have
:he power to d:spose of its property by &ift under those
provisions of Section 12 of the Act, supra, readins as fol-
lors:
". . . . it being the intention.of this Act
that exaopt by sale as In this section expressly
authorized, no such property or interest shall,
ever come into the ownership or control, directly
or indirectly, of any person, firm or oorporatlon
other than a public authority created under the
laws of the state of Texas."
The opinion then aonoluded that those provisions
Qf Section 12 regarding the value oSproperty which may be
*Old for oash in 'any one'year by an eleven member vote of
thO.Distrlct provided the property is not ncccssery to the
~;$~%a of the District applied only to sslcs end not to
I .
AS your proposed'controct here is not 6 sale within
the above statutory provisions, and beoause it would result
ponorebla H. EL Faubion - page 5
in en encumbrence upon the DistrfLctsC lends, it is not
authorized ~by the provisions of Section 12 df the'Act,
supra, end we therefore answer your question in the
negative.
Very truly yours
A’JT.IYO~XY G3!.ERALOF TEXAS