Untitled Texas Attorney General Opinion ( 1962 )

October 10, 1962
Honorable M. T. Harrlngton Opinion No. WW-1447
Chancellor
Texas Agricultural and Mechanical Re: Whether the Board of
College System Directors of the Agrlcul-
College Station, Texas tural and Mechanical
College of Texas has
the authority to execute
an oil and gas lease
on mineral classified
land under the stated
Dear Dr. Harrlngton: facts.
In a recent opinion request of this office you
state in effect that by the will of Mrs. Vena Wallace von
Roeder, deceased, the Agrlcultdral and Mechanical College
of Texas has acquired a 1/2&th interest in the surface
estate of Sections 1 and 2, Block 93, Public School Land
In Culberson County, Texas and an undivided 3/80ths Interest
in the surface estate of Sections 3, 4, 5, 6 and 7, Block
93 and Sections 4 and 5 of the South l/2 of Section 6, and
the Northwest l/4 of Section 6, Block 91, Public School
Lands, Culberson County, Texas. You state.that the surface
estate of these lands had been sold originally to private
parties by the State and that the minerals had been retained
by the State of Texas, such lands having been mineral class-
ified by the Land Commissioner.
You then ask, In effect, the following two questions:
1. Under the provisions of the "Relinquishment
Act* (Article 5367 et seq. V.C.S.) can the Board of Directors
of the Agricultural and Mechanical College of Texas execute
a valid oil and gas lease on the above described lands?
2. Under the authority of Article 2613(a)-3
Vernon'sCivil Statutes can the Board of Directors of the
Agricultural and Mechanical College of Texas execute a valid
oil and gas lease on the above mentioned lands?
Hon. M. T. Harrlngton, Page 2 (WW-1447)
The disposition of State land is exclusively in
the control of the Le islature of the State of Texas. Stiles
v. Hawkins, 207 S.W. 89 (Comm.App. adopted Sup. Ct. 19lT
34 T . 46, Public Lands, Sec. 25. In the year 1919,
the ~gi.s``&re of the State'of Texas provided for the dis-
position of oil and gas leases on State owned land class-
ified as mineral by passing Article 5367 et seq. By the
provisions of the Rellnqulshment Act as interpreted in the
case of Greene v. Robison, 117 Tex. 516, 8 S.W.2d 655 (1928),
the surface owner of lands classi.fiedas mFnera1 Is authorized
to act as agent for the State of Texas for the execution of
011 and gas leases thereon. This act was passed for, among
other purposes, to more closely align the owner of the surface
estate in such lands to the interests of the State of Texas
in the minerals therein. Norman v. Glles, 148 Tex. 21, 219
S.W.2d 678 (1949). Article 5367 V.C.S., In this regard reads
in part as follows:
"The State hereby constitutes the
owner of the soil its agent for the
purpose herein named . . ,(1
Clearly the Legislature was speaking of private persons who
might own the surface estate of lands classified as mineral
when it used the word "owner" In the Relinquishment Act and
did not Intend that the word be Interpreted as including
some State Agency in such meaning, since State Agencies and
State Boards are the State, and property which they might
possess Is already owned by the State. It would be absurd
under such circumstances to attempt to construe Article 5367
so as to have "The State hereby constitutes pn&/ the . . .
ptatg its agent for the purpose herein named".
It might be further noted that public officers
and governmental and administrative boards possess only
such powers as are expressly conferred upon them by law
or are necessarily implied from the powers so conferred,
State v. Cage, 176 S.W. 928, (Civ.App. 1915, error ref.);
Callaghan v. McGown, 90 S.W. 319, (Civ.App. 1905, error
f 1' Eastln v. Ferguson, 23 S.W. 918 (Civ.App. 1893);
~&i&gen Ind School Dist. v. C. H. Page & Bras., 48 S.W.2d
983 (Comm.App: 1932); State Line Consol. School Dlst. v.
Farwell Ind. School Dist 48 S W 2d 616 (Comm.App. 1932
Miller v. Brown, 216 S.W:'452 (Ci.;.App.1919,.error ref.
Von Rosenberg v. Lovett, 173 S.W. 508 (Civ.App. 1915, error
f)*Ry Ind. School Dist. v. Reinhardt, 159 S.W.
i&b iC1Z.i;~. 1913, error ref.);
Hon M. T. Harrington,'Page 3 (WW-1447)
Childress County v. State, 127 Tex. 343, 92 S.W.2d 1011
‘(193b) Canales v. LaughSIn, 147 Tex. 169, 214
S.W.2dJ451 1946 Hill v. Sterrett, 252 S.W.2d 766
(Civ.App. l&2, &or ref ., n.r.e.J.
The "Relinquishment Act" (Article 5367 et seq.)
does not expressly authorize ,or confer the power upon the
Board of Directors of the Agricultural ana Mechanical
College to lease State owned Permanent Free School Land
for oil and gas. In fact the act does not even make such
authorization by Implication. Thus, "The Relinquishment
Act." (Article 5367 et seq.) is not authority for the
Board of Directors of A & M College to execute an oil and
gas lease on the mineral classified land in question.
In 1931 the Legislature passed Article 2613(a)-3
Vernon's Civil Statutes which Article authorizes the Board
of Directors of A & M College to lease for oil and gas
State owned lands which fall within the following definition
or classlficatlon:
"The Board of Directors of the
Agricultural and Mechanical College
of Texas Is hereby authorized and
empowered to lease for oil, gas,
sulphur, mineral ore and other mineral
defelopments to the highest bidder at
public auction all lands used for
experimental stations and all other
lands under Its exclusive control or
any part thereof now owned by the State
of Texas and acquired for the use of
the Agricultural and Mechanical College
of Texas and Its divisions or that may
be acquired hereafter for the use of the
Texas Agricultural and Mechanical College
System."
Clearly the Legislature did not intend that mineral class-
ified land be considered as included in the lands described
above which can be leased by the Board of Directors of A & M
College. Such lands as described In the quote above are not
mineral classified lands. Should the Legislature have in-
tended that the above description Include mineral classified
lands, insofar as mineral classified lands would be read
into the above quoted verbiage of the act, the act would
be unconstitutional.
Hon. M. T. Harrington, Page 4 (WW-1447)
This would most certainly be so because of the
following reasons. By Article 7, Section 2 of the Consti-
tution of Texas adopted in 1876 the Permanent Free School
Fund was created. By Article 5416,Vernon's Civil Statutes,
mineral classified lands along,with~other lands were
dedicated to the Permanent Free School Fund. Article 7,
Section 6 of the Constitution of Texas provides that no
law shall ever be enacted appropriating any part of the
Permanent Free School Fund to any other purpose than Is
set out In said Article. However, Article 2613(a)-3
places all of the proceeds from the sale of lands included
within ‘its classification, as quoted above, under the con-
trol of the Board of Directors of the Agricultural and
Mechanical College for the College's own use. Since such
a use Is not authorized by Article 7, Section 6 of the
Constitution for Permanent Free School Fund Land or funds,
should the Legislature have intended such mineral classified
lands be leased for oil and gas by the Agricultural and
Mechanical College Board of Directors, and funds obtained
therefrom, used by the College, Article 2613(a)-3 would to
that extent be unconstitutional. Article 2618(a)-8 would
also be unconstitutional under the provisions of Article
7,Sectlon 4 of the Constitution of Texas, since mineral
classified lands are a part of the Permanent Free School
Fund which fund Is placed by Article 7,Section 4 under the
control of the Board of Education. Article 2618(a)-8
attempts to place all of the proceeds from the sale of
lands Included within Its definition under the control of
the Boardof Directors of the Agricultural and Mechanical
College of Texas. Thus, such an Interpretation of Article
2618(a)-8 would violate Article 7, Section 4.
It Is axiomatic that an unconstitutional constru-
ction of a statute will be avoided by a court if the
statute Is also capable of a constitutional construction
or Interpretation. 39 Tex. Jur. 206, Statutes,I] 111. A
constitutional Interpretation is achieved of Article 2618(a)-3
If mineral classified land Is not included in the subject
matter of said Article.
A further reason exists for holding that land
such as that described by you in your opinion request Is
neither subject to the Relinquishment Act or Article
2613(a)-5. In 1951 Article 5382(d),Sec. 15, V.C.S.,was
passed which specifically deals with mineral classified
State lands which have been sold and reacquired b th
State of Texas for the use and benefit of a StateYBoaEd
or Agency.
Hon. M. T. Harrington, Page 5 (WW-l&+7),,
Article ,5382(d), Se,ction15~ reads In part:
provided further, that
should'titie to any lands subject
to the provisions of the Rellnqulsh-
ment Act be acquired by any Depart-
ment, Board or Agency of the State,
such lands shall not be subject to
lease by any Board herein created,
but shall be leased in the same manner
as Is now or may hereafter be provided
for the leasing of unsold Public Free
School Lands."
The special treatment of a specific subject by the Legislature
will govern and take precedence over a more general subject
and its treatment by the Legislature. 39 Tex. Jur. 150
Statutes,S 81; Ellis vr Batts, 26 Tex. 703 (1863); Townsend
v. Terrell, 118 Tex. 403 15 S.W.2d 1063'(1929). ThEn;;eat-
ment applicable to mine&l classified lands (i.e.
subject to the Relinquishment Act) which have been re-
acquired by the State for the use and benefit of a State
department, board, or agency, is a special treatment of
a specific subject matter under the provisions of Article
5382(d), Section 15, V.C.S.,and should control in regard
to the leasing for oil and gas of the mineral classified
land Involved In the Instant case. The leasing of unsold
Public Free School Land for oil and gas Is provided for by
Article 5421c-3,V.C.S.,and Is handled In a different manner
than is provided for leasing State lands for 011 and gas
by Article 5367 et seq. V.C.S.,and Article 2613(a)-3,
V.C.S.
Wherefore, for the reasons above given, we
answer question No. 1 and No. 2 in the negative. The Board
of Directors of the Agricultural and Mechanical College of
Texas cannot execute a valid oil and gas lease on the
mineral classified State land in question.
SUMMARY
The Board of Directors of the
Agricultural and Mechanical College
of Texas does not have authority to
execute an oil and gas lease on
mineral classified land (land orig-
inally sold by the State with a
reservation of the minerals) in which
Hon. M. T. Harrington, Page 6 (``-1447)
the State of Texas, on behalf of the
Agricultural and Mechanical
. _ College
-_ ._ _ of
‘rexa
9, nas reacquirea an uncilvlaeci
Interest in the surface estate.
Very truly yours,
WILL WILSON
Attorney General of Texas
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Morgan Nesbltt
Frank Booth
Charles Llnd
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore