Untitled Texas Attorney General Opinion ( 1948 )

HE NEY GENERAL
EXAS
AUSTIN ``.%-ExAs
December 16, 1948
Hon. Bascom Giles, Commissioner
General Land Office
Austin, Texas Opinion No* V-741.
Re: Inclusion of Public
Squares shown on maps
of City of Austin as
Public School Land.
Dear Sir:
We refer to your letter in which you submit
the following:
"When the town of Austin was fixed
as the capital of the State, Congress on
January 14, 1839, directed.the townsite
to be platted and the property to be sold
according to said plat. Said Act has this
provision: 'That the said agent, before
the sale of said lots, shall set apart a
sufficient number of the most eligible for "
the Capitol, Arsenal, Magazine, University,
Academy, Churches, Common Schools, Hospital,
Penitentiary, and for all other necessary
public buildings and purposes.1 In compli-
ance therewith, the platas made and which
is on file in this office shows that a num-
ber of tracts designated as 'Public Squares,'
"Churches,' 'Hospital,* and 'Armory' and
some others were not subdivided into lots.
The same were not sold.
"Since that time, some of these blocks
have been,~by the Legislature, sold to the
City of Austin, and some of them have been
used by the State on which to erect public
buildings.
"Among other blocks designated as 'Pub-
lic Square' aa revealed by said plat is the
Eon. Eaecom Gil$m - Page 2 (V-741)
block lying between Trinity and Nueces and
4th and 5th Streets. The South half of the
block is vacant and lies along the railroad
``t;3!ihd 60 far aa our records show, never
be&n‘nbs”h``fcii.‘~any purpose and is very val-
uiibPe tnackage-‘property. The North half of
said block is now occupied, partly by the
0. Henry Museum and partly by one of the
fire stations of the City OS Austin.
“Another’block lies between San Antonio
and Guadalupe and 4th and 5th Streets aiid”is,
entirely vacmt. This is also very valuable
business property..
“So far as the reoorda of this office
ahow, the Legislature has never disposed of
any portion of’ said two ‘blocks above de-
scribed. We wish you would kindly ,investiy ~.``
gate the matter and let us have your oplnion~,
as to whether these two said tracts of land*
or any portion thereof, belong to ,the Public-
School .Fund and if so, can same be dlspos ed
of as Public School Land.*
In final analysis you-ask if blocks of land
shown On the Land Office map of the City of Austin, as
public squares in said city, have passed to the public
school fund and become subject to sale as such.
Court houses, jails, streets, and public
squares are not mentioned in the law of 1839 to which
you refer, but all such muses were therein authorized by
the,language “other necessary public buildings and pur-
poses.! -
An Act of the 26th Legislature, First Called
Session, 1900, recites that “for the purpose of adjust- ~,
ing and finally settling the controversy between the
permanent sohool fund and the State of~,Texas, growing
out of the division of the public domain, there,i,s here-
by set apart and granted to saio school, fund four mil-
lion, four hundred and forty-four thousand and one bun-
dred and ninety-five acres, or all of the unappropriated
public domain remaining in the State of Texas 01 what-
ever character, and wheresoever located,,including lands
hereafter reoovared by the State.”
Hon. Bascom Giles - Page 3 (V-741)
The maps and records in the General Land
Office show that the public squares mentioned in your
inquiry,are part of a grant titled by the Mexican
Government to Thomas J. Chambers on June P, 1835.
The Chambers title was held by the Supreme Court of
Texas, in the case of Chambers v. Fisk, 22 Tex. 504,
to be a valid grant. In 1925 the State of Texas aet-
tied with the Chambers heirs for $20,000.00. There-
fore these public squares have never been unappro-
priated public domain at any time since they were ac-
quired by the State.
These public squares were specially reserv-
ed and set aside as such as authorized by the Congress
of the Republic of Texas as they are shown on said map,
and recognized by the State of Texas.
In Roberts v. Terrell, 101 Tex. 577, 110 S.W.
733, the Supreme Court said:
"Having once specifically reserved as
set apartor withdrawn certain lands from
such appropriation, it is not to be supposed
that by subsequent legislation the Legisla-
ture intended to authorize the appropriation
of them.unless such intention is clearly ex-
pressed; and it has therefore been held in a
great number of cases in this State and else-
where that general laws authorizing locations
or entries upon and surveys of public lands,
or public domain or vacant land do not apply
to lands that have previously been so appro-
priated, reserved, set aside or withdrawn."
See also Taylor v. Hoya,,29 S.W. 540; Keuch-
ler v. Wright, 40 Tex. 600, 606; State v. Delesdsnier,
7 Tex. 108; and Ray v. State, 1~53S.W. (2) 660.
The fact that the Legislature has always dis-
posed of the reserved tracts within the City of Austin
by Special Act clearly indicates its belief that such
tracts were not included in the Settlement Act. In this
connection see: Acts 1911, 32nd Leg. 1st C.S., Ch. 18,
p. 105; Acts 1913, 33rd Leg., Ch. 34, p* 66; Aots 1913,
33rd Leg., Ch. 23, pa 43; Acts 1929, 41st Leg., Ch. 259,
Ch. 312, p. 695; Acts 1929,
Ch. 7; Acts 1929, 41s;7;;g,,
No. 91, Acts 1941,
Leg., Pa 1508; Acts 1945, 49th Leg., Ch. 44, pa 64.
Hon. Bascom Glles - Page 4 (V-741)
We are of the opinion that the two blocks of
Land shown on the 1839-1840 maps of the City of Austin
as public aquares do not belong to the Public School
R.znd and may not be disposed of as suah, Their dispos-
al or dedication to the Public School Fund for future
sale is matter wholly within the province of the Legis-
lature.
Public squarea shown on the 1839-1840
mans of the City of' Au&in do not belong
to-the Public &hool Fund and may not b$
aold as such. Their diapositlon is a
matter wholly within the province of the
Legislature.
Yours very truly,
ATTORNEYGENERALOF TEXAS
WTW:wb
ATTORNEYGENERAL