Untitled Texas Attorney General Opinion ( 1974 )

December 13, 1974
The Honorable Clayton T. Garrison Opinion No. H- 472
Executive Director
Texas Parks and Wildlife Department Re: Authority of Parks and
Austin, Texas 78701 Wildlife Department to grant
easements over park pro-
perty.
Dear Mr. Garrison:
Your letter requesting our opinion states:
At the present time, the Department has several
pending requests for easements to cross property
under the jurisdiction of this Department. One of
these requests involves a waterline while another
request involves a road right-of-way easement. In
each case, the request for the easement has been
submitted by a private individual and the easement,
if granted by the Commission, would be for the sole
benefit of the individual involved. In other words,
no benefit would result to the state by the granting
of either of these easements with the exception of
any monetary consideration received for the ease-
ment itself. Assuming that the individual request-
ing the easement has no pre-existing legal title or
prescriptive right and cannot establish a way of
necessity, please answer the following question:
Does the Parks and Wildlife Department have
authority to grant an easement to a private individual
over and across property under the jurisdiction of the
Department when the easement, if granted, would
accure to the solve benefit of the individual requesting
the easement?
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The Honorable Clayton T. Garrison page 2 (H-472)
By a supplemental request you have also asked:
Does the Parks and Wildlife Commission have
authority to issue easements directly or without
approval of the State Board for Lease established
by Article 5382d, Vernon’s Texas Civil Statutes?
The Parks and Wildlife Department, under the policy direction
of the Parks and Wildlife Commission (Article 978f-3a, Vernon’s Texas
Penal Auxiliary Laws), like every other state department, agency, or
subdivision derives its power from the constitution and laws of the
State of Texas. Canales v. Laughlin, 214 S. W. 2d 451, 453 (Tex. Sup.
1948); Anderson v. Wood, 152 S. W. 2d 1084 (Tex. Sup. 1941); Attorney
General Opinions H-445 (1974); H-392 (1974); H-374 (1974); H-51 (1973);
and H-45 (1973).
As in the case of other administrative agencies
the Commission has only those powers granted by
statute together with hose necessarily implied
from the authority conferred or duties imposed . . .
Nueces County Water Control and Improvement District v. Texas
Water Rights Commission, 481 S. W. 2d 924 at 929 (Tex. Civ. App. --Austin
1972, writ ref’d n. r. e.).
This rule is particularly applicable to attempts to dispose of
state-owned real property: CapIes v. Col,e, IO2 S. W. 2d I73 (Tex. Sup.
1937); Fort Worth Cavalry Club v. Sheppard, 83 S. W. 2d 660 (Tex. Sup.
1935); Conley v. Daughters,of the Republic, 156 S. W. 197 (Tex. Sup.
1913).
The granting of an easement in land is the granting of an interest
in land and requires the same authorization. Settegast v. Foley Bros. Dry
Goods Co., 270 S. W. 1014 (Tex. Sup. 1925); Burgess v. City and County
of Dallas Levee Improvement District, 155 S. W. 2d 402 (Tex. Civ. App.
--Eastland 1941, writ ref’d w. o. m.).
pe 2154
The Honorable Clayton T. Garrison page 3 (H-472)
When we examine the Constitution and laws of the State for
authority in the Parks & Wildlife Department to grant easements across
property within its jurisdiction to private individuals for private purposes
we find that contained in section 13a of article 5382d, V. T. C. S. The
statute, generally, created Boards for lease of lands owned by any
departments, agency or board of the state. It is apparent that the
original statute,was designed to govern the granting of oil and gas leases
on public lands. For example, section 7 provides that the lease shal.1
be for a primary term not to exceed five years “and as long thereafter
as oil, gas or other minerals covered by such lease is produced . . . .I’
However, in 1955 the Legislature added section 13a for the
avowed purpose of allaying confusion existing as to the authority to
grant easements on state lands (Acts 1955, 54th Leg., ch. 239, p. 670):
The appropriate board for lease is authorized to
grant easements on the land covered by this Act for
irrigation canals, laterals, flumes and ditches,
telephone, telegraph and electric power lines, and
pipelines for the gathering or transportation of oil,
gas, water and other fluids or substances, together
with such devices, equipment and appurtenances as
may be necessary. Such easements may be granted
on such terms and conditions as the board for lease
may deem to the best interest of the State of Texas.
Provided, that the provisions of this Section 13a shall
not apply to lands owned by the State of Texas as a
part of the penitentiary system nor shall this Act be
construed as repealing House Bill No. 330, Acts of
the 48th Legislature of the State of Texas, Regular
Session, 1943, Chapter 177, page 281, being Article
6203d, Vernon’s Texas Civil Statutes, or any amend-
ments thereto.
In our opinion, therefore, the Department does have the authority
to grant an easement for a waterline provided it acquires the approval of
the Board of Leases created by article 5382d, V. T. C.S. However, we
are unable to find any authority in this statute for the granting of an
p. 2155
The Honorable Clayton T. Garrison page 4 (H-472)
easement to a private person to construct a roadway unless it is an
appurtenance necessary to the types of projects listed in section 13a.
If an easement can be granted under article 5382d, adequate considera-
tion must be present either in money or other benefit to the State.
Otherwise it may be construed as a grant to a private individual in
violation of sections 50, 51 or 52 of article 3 of the Texas Constitution.
We do note that under strict statutory guidelines your Department
does have the authority to exchange real property or interests in real
property for other land or interest therein. Vernon’s Texas Penal
Auxiliary Laws, art. 978f-4a.
SUMMARY
The Parks and Wildlife Department may grant
an easement for a waterline to a private person for
adequate consideration under the terms of article
5382d, V. T. C. S. That statute normally does not
authorize an easement to be granted for a road.
Very truly your 8,
APPROVED:
Opinion Committee
lg
p. 2156