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 PrairieView Normal and IndustrialCollege

,DearSir:

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 Drovisionsof Article 5421~ of Vernon'sCivil Statutes D e *,anddoes the School Land Board have authorityto either lease or sell said land," We answer both questionsin the negative.

The tract in questionwas conveyed in 1877 by deed to R, B, Hubbard, Governorof the State of Texas and his successors in office,when the site of Prairie View Normal and IndustrialCollege was purchased, in considerationof the purchaseof certain other land, The conveyancewas *to and for any and all uses and purposesto which the same may be appropriated destinatedor in any manner utilizedby 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 patentedto 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 describedbyHon. DascomGiles, Page 2 (V-782)

metes and bounds in Decree of Tartitionin District Court of Austin County in Matters Probate betweenHelen M. Kirby and the Estate of Jared E. Kirby, dec'd., to which referenceis here made for more particulardescription."

You have not furnishedus with copies of the instrumentson file in your office relatingto the location, surveyand patentingof the Solomon Smith Survey in tialler

County. Volume 1 of "Abstractof All OriginalTexas Land Titles ComprisingGrants and Locations to August 31 1941," preparedby 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 includedtherein.

The Act to establishan Agriculturaland MechanicalCollege of Texas for the benefit of the colored youthswas approvedAugust 14 1876, It provided' for the establishmentof such a college; authorizedthe Governorto appoint a Commissionto select a site,containing not less than five hundred acres of land suitable for agricultural purposes;authorizedthis commission to receive donationsof land and money to aid in the erectionand maintenanceof the college;and placed the college,,

when located and established, under the supervisionand 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. (SeeActs 1876, p$ 136,)

The deed in 1877 ~,to GovernorHubbard,,previously referredto, 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 grantorsdid "give, grant and donate" to the Governor

and his successors588 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 acquiredby the State for the purpose of establishing and locating the contemplated college. Though not expresslystated in the deed, title so acquired isin the State of Texas. Walsh v. Universityof Texas, 169 S,N, 2d 993 ('Xv,App., 1942, writ ref,)Hon. Bascom Giles, Page 3 (V-7821

Accordingto 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 enclosureof a private citiaen and in constantuse, by him, we presume, for more than twenty-fiveyears, It is not statedwhether such possessionis adverse,under claim of title, or in recognition of title in the State, We have been furnished

no abstractfrom which we could determinewhether or not the State acquiredgood title under its deed. Such title, if acquired could not be lost by adversepossession, Art. 551+, V. C. S,

The college for which this land was acquired is under the controland supervisionof the board of directors of the Agriculturaland MechanicalCollege, with the same powers and duties as conferred by law for the governmentof the Agriculturaland 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 Directorsof Texas Agriculturaland MechanicalCollege was authorizedto conveyan 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 statutoryauthorityto execute a conveyanceof certain lands theretoforeacquiredby the Agriculturaland Mechanical College. We believe these opinions to be correct and therefore concludes that there is no statutoryauthority for the sale of the 110 acre tract of land in Waller County which was acquired for the State under the authorityof the Act to establishan Agriculturaland Mechanical College of Texas for the benefit of colored youths, The Legislature seems to have been of the same opinion,since in 1945 it attemptedby resolutionto authorize the Commissionerof the GeneralLand Office to sell this land. H, C, 8, No, 41, 49th Leg., 1945.

There is no State officialor board vested with general sales power over state-ownedlands. The Commissionerof the General Land Office is a ;;;stiFtional officer of the ExecutiveDepartment. Sec. 1, Constitution of Texas. He is requiredtAnpek form such duties as are or may be required of him byHon. Bascom Giles, Page 4 (V-782 1

law." Id. sec. 23. He has no .authority except that which has been conferredupon 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 hereafteremanate 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 Schneiderv. tipscombCo, N. F:L. Ass'n:

"T&e Commissioner

does not make the sale. It is aEcomplishedby the offer made by the State in the statutewhich prescribesthe terms and conditionsof the sale, and by the acceptanceof the offer by the intendingpurchaser in his taking the severalsteps for purchaseas set out in the statute." (202 S.W, 2d 832 at 836, Tex. Sup., 1947.)

The Legislature

may impose upon the heads of the ExecutiveDepartmentduties 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,andthe creation of the School Land Board in 1939, the duty to pass upon applications to purchasewas placed upon the Commissionerof the General Land Office. As statedby Mr, J. H. Walker in his 1934-1936Report:

"The constitutionalfunctionsof the of-. fice of Land Commissionerare restrictedto the registration

of titles and activitiesincident thereto. The basic enactment was in line with prior constitutions and legislation which imposedupon the commissioners only ministerialduties. The sellingand granting of land were placed,withother authorities. NOW the Commissioneris at the head of a great business institution." (p. 4.1

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

Like the Land Commissioner, the other members of the Board, the Governorand Attorney General are executive officersperforming "such other duties as may be requiredby 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 entertainand pass on bids therefor.H.B. Acts 1939, pe 465. It has no powers not related to 9,

these functionsor not otherwise conferredby 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 remainingin 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 provisionwhich has raised the questionof the authorityof 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 wheresoeverlocated, includingany lands hereafterrecoveredby the State except that included in lakes,bays and islandsalong 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 reasonablethereforeto construeArticle 5421~
as placing on the market for sale only that part of the public domain belongingto the school fund.

Indeed, this was the view taken in 1941 by Hon. GeorgeW. Barcus, then AssistantAttorney General and now a member of your department. In his brief inHon. Bascom Giles, Page 6 (V-782)



# --=+i--’ Ra v. State Mr. Barcus wrote as follows regardingthe aut ority under Article 5421~ to sell an alleged unsupveyed area of public domain:

"Upon examiningthe caption of the Act,
we find the definite statementthat the Act is one 'to regulatethe sale and lease of lands set apart for the benefit of the public free school fund' and to provide for the dispositionand sale of minerals in certain coast61 areas and '811 unsold public free school lands, both surveyedand unsurveyed' d
ser part in the caption, we find'tahzt %e Act is one 'providing generallythe method and
means for the sale of public school lands and the lease and developmentof the public school lands and coastal areas'.* (Emphasisin original.)

"At no place in the caption do we find any mention nor any languageused which indicates that any lands other than public free school land is includedwithin the sale, provisions and regulationsof the Act, or that any area other than public free schoollandand certain coastal areas are includedwithin 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 remainingsectionsthe wording of such isolated section is broad enough to include any land in Texas except river beds and certain coastal areas. "Appelleein the case at bar contendsthat when all of the provisionsof Article 5421~ are read as a comprehensive whole and in connection with the caption of said Act Section 6 of the &zt must be construedto authoriaeand dea$hFth the sale of unsurveyedschool land ,only. land described in applicantrsapplicationnever having been appropriatedto the school fund, it follows that an intended sale thereof under Article 5421~ is unauthorizedby law. o a 0n (Appelleetsbrief, 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 constructionis supportedby the terms of the Act. The "vacantand unsurveyedland" 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 surveyedeither 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 delineatedon 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 submergedareas 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 channelsand the mineral estate in all area* within tidewater limits.

. . are subject to control and dispositionin accordancewith the provisionsof this sectionand other pertinent provisionsof this Act and other laws not in conflictherewith.

. D aIt Sec. 1, V.C.S.) (Art. 5421c-3,

Chapter 498, Acts 1941, makes the same provision, though in slightlydifferentwords.

Under the previoue construction by this office as expressedin the aforementioned brief, the crucial inquiry is whether the 110 acre tract patented in 1854 as part of the Solomon Smith surveyand 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 constructionof 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 propertyheretofore set apart and appropriatedfor the support of public schools;all the alternate sections of land reservedby the State out of grantsheretoforemade or that may hereafterbe made to railroadsor 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 patentedland ;;q$r;d for a legislative purposeby the State in 1877 The prior laws settingapart funds and lands to the &chool fund have been reviewed. None concern patented land reacquiredby deed. See Constitution of 1845, Article X, Sec. 2; Act of Jan. 31, 1854, 3 Cam. Laws 1461. Act of August 29, 1856 4 Gam. Laws 525; Act of Feb. 11, 1858, 4 Gain. Laws 1061; Constitution of 1866, Article X, Sec. 3; Constitution of 1869, Article I&sse;f76; and Act of March 18, 18'73$ 3 Sayles Early 9 0
The Solomon Smith Surveywas not an "alternate section," in 1876. Nor was this patented survey "public domain"

See Day Land and CattleCo. v. State, 68 Tex. 526 at ,547,548 4 S.W. 865 (18871,; Kuechlerv. 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 reacquiredby the State after 1876 did not automatically pass to ,theschool 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 grantedto the school fund:

" all of the unappropriated public domain'rimiining

in the State of Texas of whatever characterand wheresoeverlocated. " 0 e 0Hon. 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 includedwithin the bounds of any

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

Weatherlyv. Jackson, 123 Tex. 213,

The Act also applied to certain surveyed lands which'had lapsed into an unappropriatedstatus for failureof an individualto 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 thereforedid 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 necessaryresult of the rule stated in Roberts v. Terrell,101 Tex. 577, 110 S.X~. 733 at 735 (1908)that:

"Having once specificallyreservedor set apart or withdrawn certain lands

. . . it is not to be supposed that by subsequent legislationthe Legislatureintendedto authorize the aporopriationof them unless such intentionwas clearly expressedand it has thereforebeen held ina great number of cases that general laws authorizinglocationsor entries upon and surveysof public lands, or public domain, or vacant lands, do not apply to lands that have previouslybeen 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);Gammagev, 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 PackingCo., 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 Generalof Republiito President, January 25, 1842 (LandOffice files); Opinion of Attorney Generalto Land Commissioner, dated May 19, 1874 (Land Office files);Opinionsof 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 No24,

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 possessionand use. Weatherlyv. Jackson, supra. Non-user of the SolomonSmith 110 acre tract would thereforenot render it subjectto sale as uni appropriated

public domain. In the Ray case, supra, the appellantsargued that an unused, filled-inportion of the Trinity Riverbed was unappropriated public domain and subjectto sale under Article 5421c, saying that:

n regardlessof 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 statuteprovides for the sale of all unappropriated and~unsold

P ublic d~omain

remainingin the State.

. . .* Appellants' S.W. 2d 660).

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

The Court held invalidthe Land Commissioners' award of the area, saying:

*We are of the view that no part of the land involvedis unappropriated public domain belonging to the permanentschool 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 abandonedthe 32 acre tract as a part of the TrinitfrRiver bed and ,itis abandonedriver bed, still it is not subject to sale either aa unappropriated public domain .or

as unsurveyedschool land in the abs.a~s~e~

08 legislation

authorisingsuch sale.

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

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

Our conclusionhas 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 governmentor its subdivisionsfor public purposeswere, on the other hand, reserved from sale. 36 S. W. 413, 415 (1886). Sheldon v. Milmo, PO Tex. 1,

The phrase "vacantdomain" was used in the first general colonizationlaw that of March 24, 1825. Saylest Early Laws, Art. 40. Qubsequentlaws relating to the dispositionof the.publicdomain spoke of vacant unappropriatedlands. 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, describesvacant 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 tabulationsprepared for the SettlementAct show that previouslytitled: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 tabulationsare 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 legislativeintent which controls.

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

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, acquiredby the State in 1877 as Dart of the site of PrairieVie.w, does not now belong to the Public Free School Fund; and that, under presentlaws, the School Land Board does not have, authorityto.sell or lease said land.

SUMMARY

A tract of patentedland acquired by the State in 1877 in the purchaseof
a college site is not subjectto sale or lease by the School Land Board und;zr&",icle 5421~ or other present laws. tract, though not now used by the State, remainsappropriatedto the purpose for which it was acquiredpursuantto legislative authority and therefore is not unappropriatedpublic 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'sOpinion V-741.

Yours very truly,

ATTORNEYGENERAL OF TJ&AS

Assistant

BHR:bt/g