Hon. Bascom Giles, Commissioner 

General Land Office 

Austin, Texas 

Opinion No. V-7g2 

Re: Authority of the School Land 

Board to sell or lease a 110 

acre tract of land acquired 

by the State in the purchase 

of a site for Prairie View 

Normal and Industrial College 

,Dear Sir: 

You have asked us whether a certain 110 a&e 

tract of land in Waller County vnow belongs to the Rublit Free School Fund under the Drovisions of Article 

5421~ of Vernon's Civil Statutes D e *,and does the 

School Land Board have authority to either lease or 

sell said land," We answer both questions in the negative. 

The tract in question was conveyed in 1877 

by deed to R, B, Hubbard, Governor of the State of 

Texas and his successors in office, when the site of 

Prairie View Normal and Industrial College was purchased, in consideration of the purchase of certain 

other land, The conveyance was *to and for any and 

all uses and purposes to which the same may be appropriated destinated or in any manner utilized by the 

grantee herein mentioned, o 0 .n 

The land was described in the deed as follows: 

” 

0 a 0 One hundred and ten (110) other acres of land off of a three hundred and twenty 

(320) acre survey patented to the heirs of Solomon Smith No, 726, Vol, 11 the said one hundred and ten (110) acres lying on the south side 

of said three hundred and twenty (320) and adjoining the said Law Survey and is described by 
Hon. Dascom Giles, Page 2 (V-782) 

metes and bounds in Decree of Tartition in District Court of Austin County in Matters Probate between Helen M. Kirby and the Estate of 

Jared E. Kirby, dec'd., to which reference is 

here made for more particular description." 

You have not furnished us with copies of the 

instruments on file in your office relating to the location, survey and patenting of the Solomon Smith Survey in tialler County. Volume 1 of "Abstract of All 

Original Texas Land Titles Comprising Grants and Locations to August 31 1941," prepared by you shows that 

F 

tent No. 726, Vol. 11, for 320 acres of land in Waler County was issued on November 17, 1854, to the H&s 

of Solomon Smith. Since you raise no question, we take 

it that you deem the Solomon Smith Survey and patent to 

be valid and the 110 acre tract to be included therein. 

The Act to establish an Agricultural and Mechanical College of Texas for the benefit of the colored youths was approved August 14 1876, It provided' 

for the establishment of such a college; authorized the 

Governor to appoint a Commission to select a site, containing not less than five hundred acres of land suitable for agricultural purposes; authorized this commission to receive donations of land and money to aid in 

the erection and maintenance of the college; and placed 

the college,, when located and established, under the 

supervision and control of the Board of Agricultural 

and Mechanical College. This Act appropriated the sum 

of twenty thousand dollars, or so much as deemed necessary to locate, erect furnish and operate the college. 

(See Acts 1876, p$ 136,) 

The deed in 1877 ~,to Governor Hubbard,,previously referred to, conveyed 800 acres in consideration 

of the sum of $12,000 in treasury warrants; and "in 

consideration of the sale of said eight hundred (800') 

acres," the grantors did "give, grant and donate" to 

the Governor and his successors 588 acres adjoining 

the 800 acres and for the same purpose, the 110 acre 

tract now in &aestion. It is clear from the deed and 

from the Act that the 110 acre tract was acquired by 

the State for the purpose of establishing and locating 

the contemplated college. Though not expressly stated 

in the deed, title so acquired isin the State of Texas. Walsh v. University of Texas, 169 S,N, 2d 993 

('Xv, App., 1942, writ ref,) 
Hon. Bascom Giles, Page 3 (V-7821 

According to your letter, this tract has never been used by the State. In fact, it is recited in 

H,C.R. No. 4l of the 49th Legislature, 1945, that the 

tract has been within the enclosure of a private citiaen and in constant use, by him, we presume, for more 

than twenty-five years, It is not stated whether such 

possession is adverse, under claim of title, or in recognition of title in the State, We have been furnished 

no abstract from which we could determine whether or 

not the State acquired good title under its deed. Such 

title, if acquired could not be lost by adverse possession, Art. 551+, V. C. S, 

The college for which this land was acquired 

is under the control and supervision of the board of 

directors of the Agricultural and Mechanical College, 

with the same powers and duties as conferred by law 

for the government of the Agricultural and Mechanical 

College. Art. 2638, R.C.S.; Arta 2643b, Sec,2, V.C.S, 

Our opinion V-320, dated June 30, 1947, held that neither the Local Board of Managers of North Texas Agricultural College, nor the Board of Directors of Texas 

Agricultural and Mechanical College was authorized to 

convey an excess tract of land except through act of 

the Legislature. Our opinion O-2417 dated June 24, 

1940, held that neither such Board 0) Directors, the 

Land Commissioner, the Board of Coutrol, nor the Attorney General had statutory authority to execute a 

conveyance of certain lands theretofore acquired by 

the Agricultural and Mechanical College. We believe 

these opinions to be correct and therefore concludes 

that there is no statutory authority for the sale of 

the 110 acre tract of land in Waller County which was 

acquired for the State under the authority of the Act 

to establish an Agricultural and Mechanical College of 

Texas for the benefit of colored youths, The Legislature seems to have been of the same opinion, since in 

1945 it attempted by resolution to authorize the Commissioner of the General Land Office to sell this land. 

H, C, 8, No, 41, 49th Leg., 1945. 

There is no State official or board vested 

with general sales power over state-owned lands. The 

Commissioner of the General Land Office is a ;;;stiFtional officer of the Executive Department. 

Sec. 1, Constitution of Texas. He is required tAnpek 

form such duties as are or may be required of him by 
Hon. Bascom Giles, Page 4 (V-782 1 

law." Id. sec. 23. He has no .authority except that 

which has been conferred upon him by law. 34 Tex., 

Jur. 31. 

The General Land Office itself is not a 

sales office. It is the office "&here ali land titles which have emanated or Mary hereafter emanate 

from the State shall be registered. . . ." Art. XIV, 

Sec. 1, Const. of Texas; 34 Tex, Jur.28, 29. 

The power and duty to sell public school 

land is in the Legislature, Art. VII Sec. 4, Const, 

of Tex@. As stated in Schneider v. tipscomb Co, 

N. F:L. Ass'n: 

"T&e Commissioner does not make the sale. 

It is aEcomplished by the offer made by the 

State in the statute which prescribes the 

terms and conditions of the sale, and by the 

acceptance of the offer by the intending purchaser in his taking the several steps for 

purchase as set out in the statute." (202 S.W, 

2d 832 at 836, Tex. Sup., 1947.) 

The Legislature may impose upon the heads 

of the Executive Department duties regarding such 

lands. 

(1888). 

Arnold v. Stat.e, 71 Tex.'239, 9 S.W. 120 

Between the abolition of the State. Land 

Board in 1887,and the creation of the School Land 

Board in 1939, the duty to pass upon applications 

to purchase was placed upon the Commissioner of the 

General Land Office. As stated by Mr, J. H. Walker 

in his 1934-1936 Report: 

"The constitutional functions of the of-. 

fice of Land Commissioner are restricted to 

the registration of titles and activities incident thereto. The basic enactment was in 

line with prior constitutions and legislation 

which imposed upon the commissioners only ministerial duties. The selling and granting of 

land were placed,with other authorities. NOW 

the Commissioner is at the head of a great business institution." (p. 4.1 

The duties of the School Land Board are prescribed by Articles 5421~~3, 5421c-4 and 5421c-5,V.C.S, 
Hon. Bascom Giles, Page 5 (V-782) 

Like the Land Commissioner, the other members of the 

Board, the Governor and Attorney General are executive officers performing "such other duties as may be 

required by law." 

Texas. 

See Art. IV Sec. 22, Const. of 

The Act creating this board requires, in substance, that it advertise school lands for lease or 

sale and entertain and pass on bids therefor. H.B. 

Acts 1939, pe 465. It has no powers not related to 

9, 

these functions or not otherwise conferred by law. 

Your letter refers to Article 5421c, V.C.S. 

Section 1 thereof reads as follows: 

"All lands heretofore set apart to the 

public free school funds under the constitution and laws of Texas and all the unappropriated and unsold public domain remaining in 

this State of whatever character, except river beds, and channels, and islands, lakes and 

bays and other areas within tide water limits, 

are subject to control and sale under the provisions of this Act." 

It is, perhaps, this provision which has 

raised the question of the authority of the School 

Laz& Bprg t; sell the 'Wailer County land. Article 

scho;l &n;: 

Ds sets apart and grants to the permanent 

n 0 all lands heretofore set apart 

under ihe" constitution and laws of Texas, and 

all of the unappropriated public domain remaining in the State of whatever character, 

and wheresoever located, including any lands 

hereafter recovered by the State except that 

included in lakes, bays and islands along the 

Gulf of Mexico within tidewater limits.* 

We note that the wording of Article 5416 and 

that of Section 1 of Article 5421~ is very similar. It 

would be reasonable therefore to construe Article 5421~ 

as placing on the market for sale only that part of the 

public domain belonging to the school fund. 

Indeed, this was the view taken in 1941 by 

Hon. George W. Barcus, then Assistant Attorney General 

and now a member of your department. In his brief in 
Hon. Bascom Giles, Page 6 (V-782) 

--=+i--’ Ra v. State Mr. Barcus wrote as follows regarding the 

aut ority under Article 5421~ to sell an alleged unsupveyed area of public domain: 

"Upon examining the caption of the Act, 

we find the definite statement that the Act 

is one 'to regulate the sale and lease of 

lands set apart for the benefit of the public 

free school fund' and to provide for the disposition and sale of minerals in certain coast61 areas and '811 unsold public free school 

lands, both surveyed and unsurveyed' d 

ser part in the caption, we find'tahzt %e 

Act is one 'providing generally the method and 

means for the sale of public school lands and 

the lease and development of the public school 

lands and coastal areas'.* (Emphasis in original.) 

"At no place in the caption do we find any 

mention nor any language used which indicates 

that any lands other than public free school 

land is included within the sale, provisions 

and regulations of the Act, or that any area 

other than public free schoolland and certain 

coastal areas are included within the leasing 

provision. o .of the Act, with the exception 

of,a special class of e Q D land which is specially treated in Section 5. 

"It is true that if Section 1 is considered alone and without relation to the caption 

of the Act or to remaining sections the wording of such isolated section is broad enough 

to include any land in Texas except river beds 

and certain coastal areas. 

"Appellee in the case at bar contends that 

when all of the provisions of Article 5421~ are 

read as a comprehensive whole and in connection 

with the caption of said Act Section 6 of the 

&zt must be construed to authoriae and dea$hFth 

the sale of unsurveyed school land ,only. 

land described in applicantrs application never 

having been appropriated to the school fund, it 

follows that an intended sale thereof under Article 5421~ is unauthorized by law. o a 0n (Appelleets brief, Ray v* State, 153 S.WO 2d 660, 
Hon. Bascom Giles, Page 7 (V-782) 

No. 8992 in Austin Court of Civil Appeals, 

1941, error ref. W.M.) 

This construction is supported by the terms 

of the Act. The "vacant and unsurveyed land" subject 

to sale or lease under Section 6 of Article 5421~ is 

now specifically defined as "an area of unsurveyed 

school land. . . ." The surveyed land subject to sale 

is defined as: 

1 , l . all tracts or parts of tracts 

heretofore surveyed either on the ground or 

by protraction, and set apart for the public 

school funds and which is unsold, and for 

which field notes are on file in the General 

Land Office or which may be delineated on the 

maps of said office as such. . . ." 

The School Land Board Act of 1939 likewise 

;;pfTrt;h;his construction. (H.B. 9, Acts 1939, p. 

s act sets apart the mineral estate in islands and certain submerged areas to the School Fund 

and provides (Sec. 5) that: 

"All lands set apart for the permanent 

free school fund and the several asylum funds 

by the Constitution and the laws of this 

State and the mineral estate in river beds 

and channels and the mineral estate in all 

area* within tidewater limits. . . are subject 

to control and disposition in accordance with 

the provisions of this section and other pertinent provisions of this Act and other laws 

not in conflict herewith. . D aIt 

Sec. 1, V.C.S.) 

(Art. 5421c-3, 

Chapter 498, Acts 1941, makes the same provision, though in slightly different words. 

Under the previoue construction by this office as expressed in the aforementioned brief, the 

crucial inquiry is whether the 110 acre tract patented 

in 1854 as part of the Solomon Smith survey and acuired by the State in the purchase of the site for 

ilr airie View in 1877, has ever been set apart for the 

public school fund. Under a broad construction of 

Article 5421c, the inquiry is whether this tract is 

Qnappropriated . . . public domain." 
Hon. Bascom Giles, Page 8 (v-782) 

The lands set apart to the school fund under 

the Constitution are the following: 

"All funds, lands and other property heretofore set apart and appropriated for the support of public schools; all the alternate sections of land reserved by the State out of 

grants heretofore made or that may hereafter be 

made to railroads or other corporations of any 

nature whatsoever; one-half of the public domain of the State; and all sums of money that 

may come to the State from the sale of any portion of the same, shall constitute a perpetual 

school fund.". Article ~VII, Sec. 2, Constitution 

of 1876. see Hogue v. Baker, 92 Tex. 58, 45 S.W. 

1004 (ld98,. 

It is ourconclusion that the above provision 

does not affect the status of a tract of patented land 

;;q$r;d for a legislative purpose by the State in 1877 

The prior laws setting apart funds and lands 

to the &chool fund have been reviewed. None concern 

patented land reacquired by deed. See Constitution of 

1845, Article X, Sec. 2; Act of Jan. 31, 1854, 3 Cam. 

Laws 1461. Act of August 29, 1856 4 Gam. Laws 525; Act 

of Feb. 11, 1858, 4 Gain. Laws 1061; Constitution of 

1866, Article X, Sec. 3; Constitution of 1869, Article 

I&sse;f76; and Act of March 18, 18'73$ 3 Sayles Early 

9 0 

The Solomon Smith Survey was not an "alternate 

section," 

in 1876. 

Nor was this patented survey "public domain" 

See Day Land and Cattle Co. v. State, 68 Tex. 

526 at ,547, 548 4 S.W. 865 (18871,; Kuechler v. Wright, 

40 Tex. 600 at A46 ~~( 1874); Decourt v. Sproul, 66 Tex, 

368 (1886); Mills v. Needham, 67 S.W. 1097. (Civ. App. 

1902, err. ref.) Lands reacquired by the State after 

1876 did not automatically pass to ,the school fund. 

State v. Powell, 132 S.W, 746 (Civ. App., 1,911). 

At this point our two lines of in uiry merge. 

The Settlement Act of 1900 (Acts 1900, 1st 2 *S., p. 29) 

set apart and granted to the school fund: 

" all of the unappropriated public 

domain'rimiining in the State of Texas of 

whatever character and wheresoever located. 

" 0 e 0 
Hon. Bascom Giles, Page 9 (V-782 I 

"Unappropriated public domain" within the 

meaning of this Act has been defined as ". . . land 

which in fact is not included within the bounds of any 

;E?: id.23; at 265 (1934) 

Weatherly v. Jackson, 123 Tex. 213, 

The Act also applied to 

certain surveyed lands which'had lapsed into an unappropriated status for failure of an individual to 

perfect his claim, Barber v. Giles, 208 S. W. 2d 

553 at 554 (Tex. Sup., 1948). 

Areas reserved for the use of the government or the people, however, were "aocropriated" and 

therefore did not pass to the school fund. State v. 

Bradford, 121 Tex. 515 50 S.d. 2d 1065 (1932); Anderson v. Polk, 117 Tex. 213 297 S.W. 219 (1927); see 

Taylor v. Hoya, 29 S.W. 340 (Civ. App., 1895). 

This is the necessary result of the rule 

stated in Roberts v. Terrell, 101 Tex. 577, 110 S.X~. 

733 at 735 (1908) that: 

"Having once specifically reserved or 

set apart or withdrawn certain lands . . . 

it is not to be supposed that by subsequent 

legislation the Legislature intended to authorize the aporopriation of them unless such 

intention was clearly expressed and it has 

therefore been held ina great number of cases 

that general laws authorizing locations or 

entries upon and surveys of public lands, or 

public domain, or vacant lands, do not apply 

to lands that have previously been so appropriated, reserved, set aside, or withdrawn." 

See State v. Delesdenier, 7 Tex. 76 at 107 (1851);.Kuechler v. Wright, 40 Tex. 600 at 646 (1874); Gammage v, 

Powell, 61 Tex. 629 (1884); Day Land and Cattle Co. v. 

State, 68 Tex. 526 at 547 4 S.uJ. 865 (1887); Landry v. 

Robieon, 110 Tex. 295 214 S.W. 819 at 820 (1920). Dolan v. Walker 121 Tel;. 361 49 S.uJ. 2d 695 at 698, 

-State v. Bradhord supra, ai 1069; Lorino v. Crawf&d 

Packing Co., 142 '!ex. 51, 175 S.W. 2d 410 at 413 (1943);". 

Wilcox v. Jackson 13 Peters 498 (U. S. 1839); Newhall 

V. Sanger 92 U. 6. 761 23 L. Ed, 769 [1875)* Opinion 

of 0. W. terrell AttorAey General of Republii to President, January 25, 1842 (Land Office files); Opinion of 

Attorney General to Land Commissioner, dated May 19, 

1874 (Land Office files); Opinions of Attorney General, 
Hon. Bascom Giles, Page 10 (V-782) 

Vol, 11 p. 667 (1886); Vol. 12 p. 342 (1888); Vol. 

it'8 

g. LO (1891)* Vol. 14, p, 359 (1892); Vol. 

(1911). Voi 39 p 63 (1914). Opinion No 

24, 

2783 dated Augu& 21: 1429 to Hon.'J. H. Walked; 

Opinion No. V-741, dated Dec. 16, 1948, to Hon. 

Bascom Giles. 

The "ar~propriation~ of land is not dependent on possession and use. Weatherly v. Jackson, 

supra. Non-user of the Solomon Smith 110 acre tract 

would therefore not render it subject to sale as uni 

appropriated public domain. In the Ray case, supra, 

the appellants argued that an unused, filled-in portion of the Trinity River bed was unappropriated 

public domain and subject to sale under Article 5421c, 

saying that: 

n regardless of whether the land 

is par; if'the public school,fund still the 

sale was valid under the Act of 1431, Chap, 

271, p. 452, and that statute provides for 

the sale of all unappropriated and~unsold 

P 

ublic d~omain remaining in the State. . . .* 

Appellants' 

S.W. 2d 660). 

brief, p. 10, Ray v. State, 153' 

The Court held invalid the Land Commissioners' 

award of the area, saying: 

*We are of the view that no part of the 

land involved is unappropriated public domain 

belonging to the permanent school fund or unsurveyed school land and subject as such to 

sale because all of the land is a part of the 

Trinity river bed, a navigable stream, the title to which is in the State for the benefit of 

the public at large. . . .* 

"If, however, we are mistaken in the view 

that the State has not abandoned the 32 acre 

tract as a part of the Trinitfr River bed and 

,it is abandoned river bed, still it is not subject to sale either aa unappropriated public 

domain .or as unsurveyed school land in the abs.a~s~e~ 08 legislation authorising such sale. 

. . .n (153 S.W. 26 at 662). 
. 

Hon. Bascom Giles, Page 11 (V-782) 

Our conclusion has other support. The phrase 

Vacant" or "unappropriated domain I1 has an ancient meaning in this jurisdiction. Under Spanish law, vacant 

lands meant the unappropriated royal domain. The %atUral" or Vacant" lands were the King's special prerogative, to be sold or granted as a reward of merit or as 

a matter of pure favor. Lands held by the government or 

its subdivisions for public purposes were, on the other 

hand, reserved from sale. 

36 S. W. 413, 415 (1886). 

Sheldon v. Milmo, PO Tex. 1, 

The phrase "vacant domain" was used in the 

first general colonization law that of March 24, 1825. 

Saylest Early Laws, Art. 40. Qubsequent laws relating 

to the disposition of the.public domain spoke of vacant 

unappropriated lands. See Act of Dec. 2, 1850, Sayles' 

Early Laws, Arts. 2164, 2374; Act. of Dec. 21 1853, Saylest Early Laws, Art. 2577; Act of Feb. 4, 1844, Sayles' 

Early Laws, Art. 2381; Act of Feb. 13; 1854, Sayles' 

Early Laws, Art. 2427; Act of Feb. 11 1858 Sayles' 

Early Laws, Art. 2757. Acts of Feb. lb 1858 Jan. 1 

1862, and March 4, 1863, Saylesl Early'Laws,'Arts. 2'?57, 

2977, 3055; Acts of Dec. 15, 1863 and Nov. 7, 1864 

Sayles' Early Laws, Arts. 3122, 3182; Act of March io; 

1875, Sp. Laws 14th Leg. p* 69; Act of Aug. 16, 1876, 

Saylest early hws Art. 4242; Act. of Feb. 20, 1879; 

and Act of July 14' 1879 amended by Act of March 11 

1881, R. S. 1879, Art. 3b76a. The Articles of Annex:- 

tion spoke of ". . . all the vacant and unappropriated 

lands. . ." See Art. 5415, R. C. S., 1925. The Act of 

January 22, 1845, describes vacant public domain as land 

n * . . which has been neither filed upon, entered, located nor surveyed by virtue of some genuine, legal and 

valid certificate, or other evidence of title to land 

0 . . " 2 Gam. bWS 1072. 

The tabulations prepared for the Settlement Act 

show that previously titled:Zand was not included in the 

wunappropriated public domain." See Report of Charles 

Rogan, Land Commissioner, dated.November 1, 1899; Message 

of the Governor S. J. 1st C.S. 26th Leg., 1900, p. 14. 

.While such tabulations are not determinative as'to a particular tract (Eyl. v. Stat,e, 84 S.ti. 607 (Civ. App., 

1904)), they indicate in general the lands intended,to 

pass to the school fund. State v. Bryan, 210 S.W. 2d 

455 at 457 (Civ. App., 1948, error ref.,wEG;h;A); &is 

the legislative intent which controls. 

ker, 133 Tex. 255, 128 S.W. 2d 1138 (1939). l -, 
. 

Hon. Bascom Giles - Page 12 (V-782) 

You are, therefore, respectfully advised that 

the 110 acre tract of land out of the Solomon Smith surw in Wailer County, acquired by the State in 1877 as 

Dart of the site of Prairie Vie.w, does not now belong to 

the Public Free School Fund; and that, under present laws, 

the School Land Board does not have, authority to. sell or 

lease said land. 

SUMMARY 

A tract of patented land acquired 

by the State in 1877 in the purchase of 

a college site is not subject to sale or 

lease by the School Land Board und;zr&",icle 5421~ or other present laws. 

tract, though not now used by the State, 

remains appropriated to the purpose for 

which it was acquired pursuant to legislative authority and therefore is not unappropriated public domain and has never 

ps;edSto the school fund. Article 5421c, 

* Article 5416, R. C. S.; State v. 

Biadhori' 121 Tex. 515 50 S.W. 2d 1065. 

Roberts :. Terre11 1Oi Tex. 577 110 S:W. 

733; Ray v. State, '153 S. W. 2d 660; Attorney General's Opinion V-741. 

Yours very truly, 

ATTORNEY GENERAL OF TJ&AS 

Assistant 

BHR:bt/g