Judges: JOHN CORNYN, Attorney General of Texas
Filed Date: 6/21/1999
Status: Precedential
Modified Date: 7/6/2016
Office of the Attorney General — State of Texas John Cornyn February 25, 1999 Susan Garrison The Honorable David Dewhurst Texas Land Commissioner General Land Office 1700 North Congress Avenue Austin, Texas 78701-1495
Re: Whether the General Land Office validly conveyed title to certain submerged land to the City of Aransas Pass in 1944, and related questions (RQ-0009)
Dear Commissioner Dewhurst:
Your predecessor in office requested an opinion on the validity of a 1944 conveyance from the Texas Land Commissioner to the City of Aransas Pass ceding an interest in certain state-owned submerged land to the City of Aransas Pass. The conveyance did not state that any compensation was paid to the perpetual public school fund established by article
Your predecessor asked two questions about the validity of the 1944 conveyance, which is titled "Special Award No. 1." He first asked whether Special Award No. 1 represents a valid act of the Land Commissioner, legally sufficient to convey title to the City of Aransas Pass or to ratify an interest in the described land obtained pursuant to article 68371 of the Revised Civil Statutes without compensation to the perpetual public school fund. He next asked whether the language of Special Award No. 1, together with article 6837 could be construed to give the city an exclusive perpetual easement to use and control the lands for the purposes set out in article 68302 of the Revised Civil Statutes, and whether such an easement could be granted without compensation to the school fund. See Letter from Honorable Garry Mauro, Land Commissioner, to Honorable Dan Morales, Attorney General (Nov. 8, 1996) (on file with Opinion Committee) [hereinafter "Request Letter"].
Article 6830 authorizes the commissioners court of all counties and the municipal authorities of all cities bordering on the coast of the Gulf of Mexico to build seawalls, breakwaters, levees, and various other similar or related projects and to incur indebtedness for these improvements.See Tex. Rev. Civ. Stat. Ann. art.
The right to the use and control for the purposes prescribed by this title, of so much of the land and sea bottom below high tide as may be deemed necessary by said commissioners court or governing body, is hereby ceded by the State of Texas to counties and cities availing themselves of the provisions herein.
Id. art. 6837.
Our answer to the questions is based on the information shown on the face of Special Award No. 1 and a resolution of the City of Aransas Pass requesting the conveyance. The General Land Office has provided us with a copy of Special Award No. 1, which is dated May 22, 1944, and signed by Bascom Giles, then Commissioner of the General Land Office. It states that the City of Aransas Pass, Texas, has voted and issued bonds for the purposes enumerated in article
The City of Aransas Pass has forwarded to us a copy of a resolution of the mayor and city commissioners, dated May 18, 1944, whereby the city applied to Commissioner Giles of the General Land Office to secure title to certain submerged lands in Nueces County as described by field notes attached to the resolution. The resolution states that the city voted at an election held on April 22, 1944, to authorize the issuance and sale of seawall and breakwater bonds and that the submerged lands are needed to construct the seawall improvements to be funded by the bonds. The statutory authority for the bond issuance consisted of title 118 of the Revised Civil Statutes, which includes articles 6830 and 6837, and a 1920 special law as amended in 1939 that donated certain state ad valorem taxes to Aransas Pass to use in constructing and maintaining seawalls, breakwaters, levees, channels, and other shore protections. Act of June 17, 1920, 36th Leg., 3d C.S., ch. 22, 1920 Tex. Gen. Laws 32, as amendedby Act of June 8, 1939, 46th Leg., R.S., ch. 12, 1939 Tex. Spec. Laws 989. We assume that the city's resolution provides the evidence referred to in Special Award No. 1.
Special Award No. 1 states that "it appears that said City is entitled to the benefits conferred by Article 6837" and continues as follows:
NOW, THEREFORE, I, BASCOM GILES, Commissioner of the General Land Office of the State of Texas, in conformity with the above law, do hereby award, cede and relinquish to the City of Aransas Pass, Texas, and its successors, for the purposes enumerated in Article 6830, the use and control of the following described land and sea bottom below high tide:
. . . .
[description of submerged land]
[mineral reservation to the state]
The description of the submerged land set out in the Special Award is identical with the description in the field notes provided by Aransas Pass. We note, however, that the city in its resolution sought title to the submerged lands, while the Special Award, consistent with article 6837, ceded the "use and control" of the described land.
Special Award No. 1 cites articles 6830 and 6837 of the Revised Civil Statutes as the authority for the transfer of submerged land to the City of Aransas Pass. These provisions were adopted in 19013 to give effect to article
XI , section7 of the Texas Constitution, which authorizes counties and cities bordering on the Gulf of Mexico to levy a tax, go into debt, and issue bonds to finance the construction of seawalls and breakwaters.Article 6837 expressly states that cities like Port Aransas may "use and control" submerged land to build seawalls, breakwaters, and other structures set out in article 6830. Article
XI , section8 of the Texas Constitution authorizes the legislature to aid the construction of seawalls and breakwaters in Gulf Coast counties and cities by donating lands from the public domain and thus appears to provide constitutional authority for article 6837. However, when we review articleXI , section8 of the Texas Constitution, and articles 6830 and 6837 in the context of other provisions applicable to submerged lands, we must conclude that they did not authorize the conveyance recited in the Special Award.
Before the legislature made any donation of submerged lands pursuant to article XI, section 8 of the constitution, and well before 1944, no public domain land remained to donate pursuant to that constitutional provision. Tex. Const. art.
The Texas Supreme Court decided in City of Aransas Pass v. Keeling,
The express wording of the section [article
XI , section8 , Texas Constitution] recognizes a state interest and a state obligation in the protection of coast settlements from calamitous overflows. It must have been known that before many years the public domain would be exhausted. It would be unreasonable to assume that the framers of the Constitution did not intend to make it possible for the Legislature to discharge an obligation which would be just as binding after as before the exhaustion of the public domain.
Id. at 820. Thus, the purpose of article XI, section 8, could be fulfilled, but not through the donation of unallocated public land, because none remained.
Prior to the 1944 Special Award, the legislature had placed submerged lands in the school fund established by article
Article
A survey of the legal history of the submerged lands shows that the 1944 Special Award could not transfer title to them. The Texas Constitution, as adopted in 1876, allocated public lands for various purposes, including the support of public education. Article
In 1898, the Supreme Court in Hogue v. Baker determined that article VII, section 2, vested in the school fund one-half of the public land that remained after deducting public lands appropriated by other constitutional provisions. The court judicially determined that the half of the public domain not dedicated to the school fund had already been exhausted and that the remaining lands belonged equitably to that fund. It held that the legislature had authority to determine the mode of partition of the public domain by choosing to allocate land or half the proceeds of land sales to the school fund, but that where the legislature had taken affirmative action to allocate the land or proceeds of the sale, its action was final. Hogue v. Baker,
The legislature responded to Hogue v. Baker by ordering a complete audit of all land accounts. Act of March 2, 1899, 26th Leg., R.S., ch. 16, 1899 Tex. Gen. Laws Texas 14; Butler v. Sadler,
Submerged lands, as lands under navigable waters, were held in trust for the people by the state, and could be sold only by the legislature.Lorino v. Crawford Packing Co.,
The soil covered by the bays, inlets, and arms of the Gulf of Mexico within tidewater limits belongs to the State, and constitutes public property that is held in trust for the use and benefit of all the people. The rule is firmly established in this State that land under navigable waters is withdrawn from the general provisions of the statutes conferring upon the Land Commissioner the right to contract for the sale or lease thereof, and passes by grant or sale only when so expressly provided for by the sovereign authority; and there is no presumption that the State has authorized such grant or sale.
Although such property may not be sold by the Commissioner of the General Land Office or other executive officer, its sale or grant may be authorized by the Legislature.
The reason for this distinction between ordinary public lands and those covered by navigable waters is obvious. It has always been the policy of the State to dispose of ordinary public lands to settlers, and under usual circumstances it may be presumed that the State has parted with title; but navigable waters and streams are reserved to the State for the use of the public generally, and no one should have an exclusive right to the enjoyment of such property, unless and until the Legislature has granted such right. Therefore, it has been the policy of the State to retain title to lands covered by navigable waters, and the presumption is that there has not been any act of the State divesting itself of title.
Lorino v. Crawford Packing Co.,
The submerged lands described in the Special Award could not be conveyed without payment to the school fund. Moreover, the Commissioner did not have authority to grant title to submerged lands. Accordingly, the information on the face of the Special Award does not show that title to the described land has been transferred to the City of Aransas Pass.
Your predecessor also asked whether the Special Award can be construed to grant "an exclusive perpetual easement to use and control" of the lands for the purposes set out in article 6830. Request Letter supra, at 2. The resolution from the City of Aransas Pass applies for title to the submerged land, while the Special Award uses the language "cede and relinquish to the City of Aransas Pass, Texas, and its successors, for the purposes enumerated in Article 6830, the use and control" of the described submerged lands. Special Award No. 1, supra. We cannot determine in an attorney general opinion whether or not this language of the Special Award attempted to grant an easement. See Lo-Vaca GatheringCo. v. Missouri-Kansas-Texas R.R. Co.,
If we assume that the Special Award was intended to grant "an exclusive perpetual easement to use and control" of the lands for the purposes set out in article 6830, we must conclude that it was invalid. The Commissioner's statutory authority to grant easements over submerged lands did not include authority to grant an easement for the purposes of article 6830. A 1943 enactment authorized the Commissioner of the General Land Office to execute grants of easements for the following purposes:
rights of way for telephone, telegraph, electric transmission and power lines, for oil pipe lines, gas pipe lines, sulphur pipe lines, and other electric and pipe lines . . . across all unsold Public Free School Land, and across all islands, salt water lakes, bays, inlets, marshes and reefs owned by the State within tidewater limits, and across that portion of the Gulf of Mexico within the jurisdiction of Texas.7
The legislation also provided for compensation to the school fund by persons holding such easements on unsold public school lands and submerged lands.8 In 1944, the Land Commissioner had no authority to grant an easement for the purposes set out in the Special Award.
Your predecessor also inquired about the legal effect of an instrument dated April 21, 1958, whereby the Nueces County Navigation District, reciting the city's ownership pursuant to Special Award No. 1, relinquished its authority over lands, including those described in the Special Award, to the City of Aransas Pass. The relinquishment document also recited the validation of Special Award No 1, by former article 969a-1 of the Revised Civil Statutes. See Request Letter supra, at 1.
We have no information about any claim the Nueces County Navigation District may have had on the land in question and cannot comment on that aspect of the document. We can point out that former article 969a-1, adopted in 1953, authorized "[a]ny city to which the State of Texas or the Republic of Texas has heretofore relinquished its right, title and interest in or to any island, flats, or other submerged lands . . . to lease, sell, option and convey" such submerged lands.9 This provision applies to submerged land that the state has transferred to a city and does not provide for validating any questionable grant of submerged land. Accordingly, it cannot be read to authorize the validation of the Special Award.
We finally point out that the state, in its sovereign capacity, is not subject to the defense of estoppel. State v. Durham,
Yours very truly,
JOHN CORNYN Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General — General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
Prepared by Susan L. Garrison Assistant Attorney General
Texas Co. v. State & Duval County Ranch Co. , 154 Tex. 494 ( 1955 )
Lorino v. Crawford Packing Co. , 142 Tex. 51 ( 1943 )
Aransas Pass v. Keeling , 112 Tex. 339 ( 1923 )
State of Texas v. Bradford , 121 Tex. 515 ( 1932 )
Hogue v. Baker , 92 Tex. 58 ( 1898 )
Weatherly v. Jackson , 123 Tex. 213 ( 1934 )
Lo-Vaca Gathering Co. v. Missouri-Kansas-Texas Railroad , 476 S.W.2d 732 ( 1972 )
Pittman v. City of Amarillo , 598 S.W.2d 941 ( 1980 )
Butler v. Sadler , 399 S.W.2d 411 ( 1966 )
City of Port Isabel v. Missouri Pacific Railroad , 729 S.W.2d 939 ( 1987 )