The Attorney General of Texas 

July 8, 1980 

MARK WHITE 

Attorney General 

Honorable James M. Windham 

Chairman 

Texas Board of Corrections 

Livingston, Texas 77381 

Opinion No. Mw-2 07 

Re: Authority of the Department 

of Corrections to lease land under 

its control for the removal of sand 

and gravel 

Dear Mr. Windham: 

Ycu have asked whether the Texas Board of Corrections is authorized 

to lease land under its control for the purpose of selling sand and gravel in 

deposits located on said land. Since you have specified that the land in 

question is under the control of the Department of Corrections, we assume 

that none is stiject to the provisions of section 86.001, et seq., of the Parks 

and Wildlife Code. We understand that applicants would bid competitively 

for “permits,” or surface leases, and that the Board would determine which 

applicants, if any, would receive contracts. A rental fee for the lease of the 

surface area would be charged, as well as a fixed fee at the market rate per 

cubic yard for the sand and gravel sold Lease revenue would be deposited in 

the Mineral Lease Fund, and funds collected as royalty from the sale of sand 

and gravel would be deposited in the Department Operating Fund. 

Various statutes authorize the Board of Corrections to lease land under 

its control. Article 61660, V.T.C.S., permits the Board to lease “real estate 

for &cultural or grazing purpcees” or “other fixed property... upon such 

terms as it may &em advantageous. . . .I’ Article 6203a, V.T.C.S., 

establishes a “Board for Lease of Texas Prison Lands” and provides that 

lands may be leased “to any person... or corporation... for the purpose of... 

exploring for and mining, producing... and disposing of the oil and/or gas 

therein. . . J’ Finally, article 6203aa-1, V.T.C.S., allows the Board of 

Corrections to “lease state-owned land under its... control at its fair market 

lease value for an initial period not to exceed 20 years” under such terms as 

the Board &ems appropriate. 

Other statutes authorize the Board of Corrections to sell or otherwise 

dispose of certain property. see, e.g., article 61660, V.T.C.S., (sale of prison 

products and personal and moveable property); article 6166~8, V.T.C.S., 

(sale of prison made goods); article 6203c, V.T.C.S., (sale of Shaw Farm and 

Prison-made Goods Act of 19631 However, no statute explicitly or 

implicitly authorizes the sale of sand and gravel in deposits located on 

P- 666 
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Honorable James M. Windham - Page Two (MW-207) 

leased land. The question, therefore, is whether express or implied authority to lease 

land for this purpose is needed, or whether the Board of Corrections may proceed 

absent some clear prohibition against its doing so. 

We conclude that the former is the correct interpretation. Viewed as a whole, 

the statutes governing the Department of Corrections, articles 6166, et se+, V.T.C.S., 

clearly indicate an intent on the part of the legislature to regulate closely the hinds of 

dispositions that the Board of Corrections may make of property under its control. 

The fact that the legislature has singled out certain purposes for which, and conditions 

under which, property may be leased or sold, i.e., real estate may be leased for 

agriculture or grazing, land may be leased for purposes of extracting oil and gas, and 

certain products may be sold, leaves little room for doubt that the legislature did not 

intend other property dispositions to be made. Article 61660, for example, specifically 

authorizes the sale of personal and moveable property, 

or other fixed=perty and appurtenances. 

but only the lease of real estate 

Had the legislature~hed to confer 

unlimited authority won the Board of Corrections to disease of land as it sees fit, it 

could easily have done so. See, e.g., Education Code 565.39, which vests in the 

University of Texas System board of regents the “exclusive management and control 

[of System lands]” and authorizes the regents to “sell, lease, and otherwise manage, 

control, and use the lands in any manner... and under terms and conditions the board 

deems best. . . .l( 

SUMMARY 

Absent express statutory authority, the Board of Corrections 

may not lease land under its control for the purpose of selling 

sand and gravel in depceits located on said land. 

Very truly yours, 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

P. 667 
Honorable James M. Windham - Page Three (MW-207) 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Jon Bible 

Susan Garrison 

Ride Gilpin 

Bruce Youngblood 

P. 668