Untitled Texas Attorney General Opinion

TEEA~ORNEY GENERAL
OF-TEXAS
Honorable O,J.Z, Elllngson
General Manager'
Texas ~Prison System
Huntsville, Texas
Dear Sir: Opinion~No. O-2356
Re: Authority of the Texas Prison
Board to-convey a pipe line
easement across one of the pri-
son farms under Its jurisdic-
tion.
We are In receipt of your letter of May 11, 1940, where-
in you request the opinion of this Department as to the author-
itg of the Texas Prison Board to permit the construction of a
pipe line across the Clemens State Farm in Brazoria County.
We quote from your letter as follows:
"The Latex Construction Company, General
Contractors, Houston, Texas, are seeking right
of way easements for a pipe line they propose
to build for the Dow Chemical Co. between Bay
City and Freeport, Texas.
"The route of this line will cross proper-
ty of the Texas Prison Systetiin Brazoria County,
which is the Clemens State Farm, in the John and
Sterling McNeel surveys, a distance of 10,800 feet,
or 654.5 rods. They wish to pay a consideration
of .50 per rod for this right of way easement,
or 0327.25. The easement calls for the laying of -~
a second line upon payment of a like consideration;
and they also agree to pay damages to crops, and
to lay the line 18" below the ground so it will
not interfere in any manner with cultivation.
"At its regular bi-monthly on May 6th the
Texas Prison Board agreed to permit the construc-
tion of this pipe line, provided fitmet with the
approval of the Attorney General.
It is elementiary,of course, that an easement consti-
tutes an interest in land and that whatever authority or power
the Texas Prison Board would have to convey such an easement,
Hon. O.J.S. Ellingson, page 2 o-2356
would depend, in the absence of any specific provision to
that effect, upon its authority In general to convey the land,
or any portion therof, under its jurisdiction.
The Texas Prison Board is a state agency, in the na-
ture of a quasi-corporation, created and employed by the
state for the purpose of carrying out the duty of the state
to incarcerate and care for persons convicted of crime in
this state, It is a component part of the state and derives
all of its power and authority by delegation from the state.
See 37 Tex. SUP. p. 65.
Like similar subordinate state agencies, such as
counties, townships and school districts, it has no power or
duties except those which are clearly set forth and defined
by the Constitution and statutes of the state. Edwards~County
vs. Jennings, (Civ. App. 1895) 33 S.W. 585; Stratton vs. Com-
missioners' Court (Civ. App.; San Antonio, lgll), 137 S.W.
1170; 11 Tex. Jur. 563, ]i36; 1 Dillon Evlni.Corps., 1 25.
Any ambiguity or reasonable doubt as to the existence of a
power in such board to convey its property is to be resolved
against the existence of such power.
Unle-s specifically authorized by the Constitution or
statutes, such state agencies have no power or authority to
convey any of the property placed under their jurisdiction
for the purpose of carrying out the duties delegated to them.
When authorized by statute to convey such property, such state
agencies mst do so strictly in the manner provided. CrouCh
vs. Posey, (Civ. App. 5th Dis. 1902), 59 S.W. 1001; 37 Tex.
Jur. 950, 1 81.
Whatever power or authority the Texas Prison Board has
to dispose of any of its property, is to be found under title
108, Articles 6166 through 6203g, Vernon's Annotated Statutes.
We have carefully examined the various statutes under this
title and have found none which specifically authorized, or
may be construed to authorize, the Texas Prison Board to make
the conveyance contemplated.
We have given special consideration to Articles 61660,
6203a, and 6203d.
Article 61660 authorizes the Prison Board to lease real
estate for agrFcultura1 and grazing purposes.
Article 6203a confers upon the Board for Lease of Texas
Prison Lands, composed of the Commissioner of the General Land
Office, the Attorney General and the Chairman of,the Prison
Board, the authority to lease Texas Prison Lands, for oil and
gas development.
--.- -
Hon. O.J.S. Ellingson, page 3 o-2356
Article 6203d authorizes the Prison Board to grant right-
of-way easements for irrigation
_ canals, ditches,
. etc., to per-
sons or companies engaged in the lrrlgatlon business.
We have also examined Article 602Oa which authorizes
the Land Commissioner to grant pipeline right-of-way easements
over unsold public free school land, bays, inlets, marshes and
reefs owned by the State within tidewater limits, and that
portion of the Gulf of Mexico within the jurisdiction of Texas.
This Statute is obviously Inapplicable.
Therefore, you are respectfully advised, and it is the
opinion of this department, that the Texas Prison Board does
not have authority to convey the proposed easement to the
Latex Construction Company.
Trusting that we have sufficiently answered your in-
quiry, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By: s/Peter Maniscalco
Assistant
PM:JM:rt:wc
APPROVED JUN 8, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved: Opinion Committee By:-,-Chairman