March 13, 1967

Honorable Hurshel R. Harding Opinion No. M-41 County Attorney Parmer County Re: Whether the severed Farwell, Texas minerals which are owned by Parmer County as part of Its public school lands, located in Gaines and Andrews counties, are subject to taxation In the Dear Mr. Harding: county where located. In your opinion request you stated:

“Farmer County ownsminerals in Gaines and Andrews Counties, Texas, having sold the surface of these lands a number of years ago. Over the last several years the tax assessorcollector of one or both of these counties mails to Parmer County an assessment of taxes for the minerals which Parmer County owns.” Wehave also been advised that the above minerals were a part of the public lands given to Parmer County by the State for the endowment of Its Permanent School fund. These 3.andswere subsequently sold and aportion of the mineral estate was reserved to the county. The lands have been leased for a number of years andthere was production of 011 andgas on the lands in Gaines County during the tax years involved here. Youhave requested our opinion as to whether the severed mineral estate owned by Parmer County in lands located in Gaines andAndrews Counties are taxable under Article VII, Section 6a., Constitution of Texas, and Article 7150a, Vernon’s Civil Statutes. The pertinent constitutional provisions and statutory enactments are as follows: Article VII, Section 6, Constitution of Texas.

“All lands heretofore, or hereafter granted

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to the several counties of this State for educational purposes, are of rightthe property of said counties respectively, to which they are granted, and title thereto is vested in said counties, and noadverse possession or limitation shall ever be available against the title of any county. Each County maysell or dispose of its lands in whole or in part, in manner to be provided by the Commissioners’ Court of the county.. .Said lands, andthe proceeds thereof, whensold, shall be held by said counties alone as atrust for the benefit of public schools therein;.

..” Article VII, Section 6a, Constitution of Texas.

“All agriculture or grazing school land mentioned in Section 6of this article owned by any county shall be subject to taxation except for State purposes to the sameextent as lands privately owned.” Added Nov. 2, 1926, proclamation Jan. 20, 1927. Article 7150a, Vernon’s Clvll Statutes.

“Any county in this State owning any land mentioned and referred to in Sectlon 6a of Article VII of the Constitution of Texas.

.., is hereby authorized to pay taxes duly and lawfully levied on the sameout of the County’s revenue derived from such land...” Article XI, Section 9, Constitution of Texas. ‘:

“The property of counties, cities and towns, owned and held only for public purposes, such as.. ., and all other property devoted exclusively to the use andbenefit of the public shall be exempt from forced sale and from taxation,...” Article VII, Section 6a, andArticle 7150a were added in 1927. Prlor to that time, It was settled that the oublic school lands owned by the several counties were-not subject to taxation. baugherty v. Thompson, 71Tex. 192, 9S.M. 99 (1888). That court also held

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Honorable Hurshel R. Harding, Page 3 (M-41)

that:

“Forbidding the taxation of the lands it forbids the taxation of an estate less than the fee,...” Article VII, Section 6a, read in relationto Article VII, Section 6, nowmakes all the agriculture and grazing school lands owned by the several counties, and granted to themby the State for educational purposes, subject to taxation except for State purposes. The question then is, does a severed mineral interest come within the term “all agriculture andgrazing school land mentioned in Section 6of this article...?” The history of the State’s school grants to its counties is set out in the interpretive commentary of Article VII, Section 6, andwill not be repeated here. It is sufficient to note that these grants were generally made upon vacant and unsurveyed public lands. They were given to the counties and, therefore, were never classified by the General Land Office as being either agriculture, grazing or timber lands, as was required for the sale of public lands. It is our opinion, however, that the Legislature used the term “all agriculture and grazing school lands..

.‘I to distinguish between the several broad classifications of public lands generally madeby the General Land Office in the sale of lands and not to distingulsh between the various estates in land. Childress Count v. Morton Independent School Dist.,95 S.W. 1-p 193b) At the time of the enactme% Ai’” Article VII, Section’Ga, timber upon public school lands whensold became the personal property of the vendee, and was.subject to taxation. Montgomery v. Peach River Lumber Co., 1.17S.W. 1061, (Tex.Clv.App. 1905 - error dism.w.0.j.). It is not the use or classification of the land at the time of the assessment that is controlling here, but the use or classification at the time of the grant. Section 6refers to “all lands heretofore or hereafter granted.

..” It is the agriculture and grazing lands granted to counties by the State that are madetaxable. The estate to be taxed is the entire fee of the land. Article 7146 V.C.S.; Humble 011 and Refining Co. v. State SW2d 5s 560 (Tex.Ci A casi <he co&t said: (P. %O m, error ref. )

. In that

“Until, however, the mineral estate has

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Honorable Hurshel R. Harding, page 4 (M-41)

been severed, the rendition of the land carries with it the value of the entire estate

.‘I Article 

### 7146, Vernon’s Civil Statutes, defines “Real Property” as lncludlng the land itself and all mines andminerals in and under the same. Article XIV, Section 

### 7, of the Texas Constitution released the minerals in and under public lands to the owner of the soil and provided that the minerals would be subject to taxation as other property. If the minerals were taxable while apart of the fee title owned by Parmer County, what is there within Section 

### 6a of Article VII that would exempt themwhen severed? Section 6a, specifically provides!,that the enumerated school lands shall be taxable. .to the sameextent as lands privately owned.‘! It has long been settled in this State that aconveyance or reservation of amineral or royalty interest creates an interest in land that Is subject to taxation apart from the surface estate. Stephens County v. Mid-Kansas Oil &Gas Co., 113Tex. 160 254 SW 290 (1923); State r Downman, 134 S.W. 

### 787, tTex.Civ.App., 1911 error ref., -1 US353); Sheffield v. R”,g$ v. Stakes li6 Tex. 124Tex 290 77 SW. 2d 1021 80 S.W.2d LIE&,:$ g.;. $ miv.s;. 174’S.W.2d’43 (1943); Jp%he&, lg;;ex. Ra~hara.~?k%%& Indep%ent ’ School Dist., 139 Tex. 532, 163 S.W.2d b31, (1942). Assuming that the land was at the time of the grant either agriculture or grazing land, it is our opinion that Parmer County Is liable for all taxes properly assessed against the mineral interest It reserved in the sale of its school lands. See also, Phillips Chemical Co. v. DumasIndependent School DlstrTct, 159Tex. 116 

### 362d362 389 (19 8I dAttorney General’s Opinions’ nimber o-6693 and 0~7&?(1946). SUMMARY Assuming that the lands in question, at the time of the grant were either agriculture or grazing lands, the severed minerals which are owned by Parmer County as part of its public school lands located in Gaines and



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Honorable Hurshel R. Harding, page 5 (M-41)

Andrews Counties are subJect to taxation in the county where located under the terms of Article VII, Section 6a, Constitution of Texas, and Article 7150a, Vernon’s Civil Statutes.

MFS :mh Prepared by Marvin F. Sentell Assistant Attorney Qeneral APPROVED OPINIONCOMMITTRE Hawthorne Phillips, Chairman W.V. Qeppert, Co-Chairman John Pettit kkghton E%rownlee Bill Allen STAFFLEGALASSISTANI' A. J. Carubbi, Jr. 

# 9 V truly yours, 

# ??kF Qkneral of Texas



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