: August 6,'1952

Eon. I)~.

C. Greer State HighwayEngineer @ate Eighwag'Department~~ I~'

. .Austin,*Texas .opinion No. v-1493
Re:. m-rect 0r the aot.meating the era for Lease of High- .wqg,commis.sion

lands upon the previousauthpitg Or th&FIighway

Commissionre- ~ear.Sir: speotipgthese lands.

,. You.have requested an opinion upon the following problem:

.' "Iands~acquirea~ by the Highwajr ~ommissio~,by~ pwchsse, o~naemnationor otherwiseto be useQ for rights of way for State Highways,and which are no longer needed for highwey~right of way'purposesor by citizens as a road, because of the changing of the route or abendoment of suoh highway,have for many years been dizposed of by requestingthe Governor to execute'quitclaim deeds- to such lands after the proposea transfershave been,approve&by the Attorney General. This procedure seems to be in line with'the authority containedin Article .6673a of Vernon's Civil Statutes end, possibly in some instances, by Article 6614s~9. Wince the 52nd Legislaturee&acted Senate Bill 354 creat'ing

Boards'forthe leasing of 911 State owned lands for oil, gas and mineral development,~we are wondering if it repeals all or a pert 0r Article 6673a and 66749-9, or in.anymanner limits the authority of the Highway Commissionto dispose or such changed or abandonedright of way as it has,in the past." Article.6673a,.V.C.S., providesas follows: "Whereverthe State Highway Comm$ssionhas aoquired or shall hereafteracquire any land by purchase,condemnation,or otherwiseto be used as a right of way for any State Righway and thereafter the route of such Highwaywas or shall be622 Hon. D. C. Greer, page 2, v-1493

Ohanged or abandoned,and any such right of way be no longer needed for such Highway,or needed for use of oitizensas a road, the State Highway Commissionmay recommend to the Governor that such land be sold and that he execute a deed conveying all the State's right, title, and interest in such land SO acquired. Upon the reoommendation of the Commission;the Governormay execute a proper deed conveyingand/or exchanging'such land for airrerent land belongingto the same"person or persons. It shall be the duty~of the Corn-~ mission to rix the fair and reasonable value of all such land and advise the Go'drnor thereor. Provided that where such land is given to the State, the Governormay return the same by proper deed to the person or persons from whom the same is received. fallmoney der'ivea from the,

sale of such land shall be depositedwith the funds from which it was originally taken. The AttorneyGeneral shall approvd, all transfersunder this Act." The portions of Article 5382d,V.C.S; '(Acts'52na Leg,, R.S. 1951, ch. ,325, p. 556) which are.material to the' c&atioh of bgards to lease Sta$e-ownedlands are as follow.

%%ction~l.. There is hereby created Boards for,lea;se,of~

lands owned by any Department;Board or,Agenoy'of

the State of Texas : :. We0tion 2. All.lands-or any parael of same 'now owned by; or,

that may-hereafter be owned by,or held-1I.L

trust for the usa and benefit t5r',a,Departmeet, Agency or'

Board ,mag

be leased by the appropriate Boera~forLease to any person or persons, firms, or corporations subjectto ana as providea fur in this Aot, for the-purposeof-prospecting or exploringfor and mining, producing,storing,caring'for,ttianiporting, preserving,selling ana aisposing of,the 011,~.gas or otherminerals. Wection 4. Whenever in the opiliidn of .the appro$riate'Boara

for l.+a~se

there shall be such a demand for the purchase of oil,gasOT mineral leases on any lot OT tract of land subjectto the control of the Board-aswill reasonablyinsure~an advantageoussale, the Board for Lease shall place such oil, gas or mineral leases on the,msrketin such tract or tracts as the BOera for Lease may designate.

. . .. . Hon. D. C. Greer, page 3, V-1493 $23

Section 15 provides that *all laws and parts of laws ifi

conflictherewithYare hereby expresslyrepealed' with several exceptionsnbt material to this opinion.

It is clear that Article 6673a is not~,repugnant to Article 53828.' Article 6673a authorizes the aonveyanceof an abandonedright-of-way, but it does not grant the power to lease such Tight-of-weg for oil and,gas purposes. Att'y Gen. Op. O-2481 (1940). Article 5382a provides a procekre whereby lands owned.

by any state department may be leased for mineral development. No part of this article provides for the sale of lands owned by a'bepartment. There being no repugnancebetween the two statutes, they should be allowed to stand together. This rule of statutory ~construct$on~wss.expressed~by the Su$reme Court in Winterman'v. McDonald, 129 Tex. 275, 283, 102 s.w.2a 167, 171 (19371,as follows:

"Repeal of laws by implicationis not ravorecik.

39 Tex. Jur.;Seation 75, p0 140: 59 C-J.,;-

Sectlop 510, p. 905. ..In this absence of an express repeal by statute,where there is no positivepepugnanoebetweenthe proviso ions of the old and new statutes,the old and new statuteswill each be construed so 8s to $r; ;ffect, if possible,tonboth statutes.

. *, Section 75, p. 140. i _L If Article 5382d should. be construedas repealingArticle 6673a, the result would be that there would be no method of sellingan abandonedright-of-way. It is extremelydoubtful that the Legislatureintended to leave the State without a method for selling land which is no longer of any use to the State or to the public.
You are therefore advised that Article 5382d, which you refer to as Senate Bill 354, does not require you to change your methods of selling abandonedrightsof-way as authorizedby Article 6673a. It merely loperates to subject the land to the possibilityof being leased for oil..and gas developmentby the Board for Lease.

Artiole 5382a,V.C.S. (Acts 52nd L%g.,R;S: 1951, oh. 325, pa 5561, relating to the leasing

### 624~ Hon. D. C. Greer, page 4, v-1493

0r State owned lands for. oil, gas/a@3 mineral development,

does not repeal the power of the State EUghway Departmentto sell abandoned rights-of-wey

accordingto the methods prescribed in Article 6673a, V.C.S. Yours very truly,
APPROVED: PRICEDANIEL AttOTneY General Jesse P. Luton,Jr. Lana Div-ision
E. Jacobson ReviewingAssistant Charles D. Mathews First Assistant Thomas Black Assistant

TB:bt:jrb