HEA~~~ORNEY GENERAL OF-TEXAS
GROVER SRLLERS AUSTIN ,~.T~xan

ON .~TT<,RNIEY

GdcNEKAL

Honorable Bascom Giles Commissioner General Land Office Austin 14, Texas
Dear Mr. Giles: OpinionNo. O-5553 Re: Authority of the Governor and the Commissionerof the General Land Office to Issuepatents on escheated permanent free school land. Reference is made to your letter of April 1, 1944which is as follows:

"TheSchool Land Board and the Commissionerof the General Land Office are offering certain escheated lands for sale at the general sale of school lands scheduledMay 2nd of this year. "These lands are being offeredunder authority conferredby Chapter 60, Acts of the 3rd Called Ses-~ sion of the 43rd Legislature, 1934, and the applicable provisions of House Bill 9,Acts of 1939. More than four years has elapsed since the lands escheated to the State. "Somequestion has been raised as to the authority of the Governor and the Commissioner of the General Land Office to issuepatents on escheated lands after they have been sold and fully paid for under the above law. "Willgou therefore kindly advise me if the Governor and the Commissionerhave legal authority to issuepatents on these lands after they are sold and fully paid for."
We are in accord with your view that escheatedpermanent free school land is to be offered for saleby the School Land Board and the Commissionerof the General Land Office under the authority conferredby the provisions of Chapter 60. Acts of 43x7 Legislature, Third Called Session, 1934, and the applicable provisions of House Bill 9, Acts of 1939.Honorable Bascom Giles --page 2 0-5553

Under the provlsions ofArticle 3272,Vernon's Annotated Civil Statutes, escheat occurs and vests title In the State immediatelyupon the death of the intestatewithout heirs. The succeedingArticle under Title 53, Vernon's Annotated Civil Statutes prescribes the manner under which the State establishes its title. Ellis v. State, 21 S.W. 66; Robinson v. State 87 s.w. (2a) 297.

Article 3286, Vernon's Annotated Civil Statutes provides that if any person, as an heir, or devisee or legatee appears after the death of the testator or intestateand claim any part' of the money or property, he may file a petition against the State ascerting such claim provided such suit is institutedwithin fouryears after the date of the final judgment escheating suchproperty to the State, and not thereafter.
You state inyour letter that more than four years have elapsed since the date final judgmentwas entered escheating the land being offered for sale, and no such claimant has appeared. We assume that the escheatproceedings In theDistrict Courtwere regular in all respects. These factsbeing true, the State's title to the escheated land is now absolute. The question remaining is "Howmay escheatedpermanent free school landsbe titledby the State of Texas?"

In the case ofWeideranclers v, State of Texas, 64 Texas 133, the Supreme Court in an opinionby Mr. Justice Stagton said:

"The constitution expressly confers upon the district courts jurisdictionof 'allsuits in behalf of the state to recover penalties, forfeituresand escheats' (art. V, sec. 8, Const. ); but the same constitutiondeclares that 'thelegislature shallprovide a method for determiningwhat lands have been forfeited,and for giving effect to escheats.' Const., art. XIII, sec. 1. 11 II * D
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. In carrying out the provisions of the Constitution,the 43ra Legislature,Third Called Session, 1934, enacted Chapter 60, now codifiedas Article 3281 inVernon's Annotated Civil Statutes, and which provides:

"All lands heretofore or hereafter escheated to the State of Texas by provisions of this Title are hereby dedicated, appropriatedandset apart to the PermanentFree SchoolFund of the State of Texas.Honorable Bascom Giles -- page 3 0-5553

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. . Any escheatedpermanent free school lands may be soldby the Commissionerof the General Land Office for not less than one-tenth of the.purchase price in cash and the balance of said purchase price payable in nine equal annual installments,said deferred installmentsto bear interestat the rate of six (6)per cent per annum. Any lands **SO** sold shallbe sold to the highestbidder as alaeother public free school lands but no escheated lands shall be sold at a price of less than TwoDollars and Fifty Cents ($2.50)per acre. All sales of escheatedpermanent free school lands shallbe with a reservation to the State of all the minerals in the land in favor of the PermanentFree School Fund.

. . . .' Escheat has been defined by the Supreme Court of Texas in the case of Hughes v. State, 41 Texas 10, as follows:

"Title to land by escheat originated from and was a consequence of the feudal law,whereby, upon the failure of heirs of the person last seized,who may lawfully take the estate by succession, it fell back or reverted to the originalgrantor, his decendants, or successors. And, as under the general doctrine of tenures in the American States, the State occupies the place of the feudal lord by virtuesof its sovereignty, it is universallyasserted that, when the-title to land fails for lack of heirs or devlsees,who may lawfully take, it reverts or escheats to the State as property to which it is entitled."
In this connection;we find the Supreme Court of Texas in the case ofWeideranders v. State, supra, holding:

"The object of such a proceeding is not simply to have a decree declaring the escheat and vesting the title in the state;but by and throughprocess, to be issuedunder the judgment,to divest not only the title of persons entitled to take the property of the deceased as his.heirs, if perchanceany such there be, but also by a sale to divest the title of the state,and to start, and confer upon the purchaser, a new title deraigned directly from the sovereign of the soil." This holding of the Supreme Court of Texas was adopted verbatim by the Supreme Court of the United States in the Texas. .

Honorable Bascom Giles --page 4 o-5553

case ofHamilton v. Brown, 161 U.S, 256, 40 Law Edition 697, and followed by the Texas Court of CivilAppeals in the case of UnknownHeirs of Buchanan v. 176 S.W. 914. Creighton.--McShane 011 Company,

The Supreme Court in the case ofHughes v. State, supra, with respect to the disposition of escheated land said:

The surveyand patent of the land to de la Tuile severed it from the mass of the public domain, and though itmay be reinvested in the State again as escheatedproperty, itwill not become thereby subject to location or pre-emptionuntil this has been done, if then,without direct leglslation subjecting it to such appropriation.

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Itmight be well to note that the decisions of the Courts quoted above followedand referred to the old Statute which provided that e&heated lana'be soldby the sheriffby order of the Courtdeclaring the escheat, the sheriff failing, then by the Attorney General. That the Legislature,under the Constitution, Is to give effect to escheats,and is authorized to dedicate, appropriate and set apart unsold land belonging to the State to the PermanentFree School'Fund, iswell s~ettled. Chapter 60, supra, amended the escheat law changing the met~hcd of sale, and dedicated, appropriatedand set apart escheated land to the PermanentFree School Fund. It ~1s now soid subject to the reservations in the AmendatoryAct that are not in conflictwith the provisions of House Bill 9+

In connectionwith the titling of land ownedby the '- State,we find a discussion of this subject in an opinionwrltten by Mr. JusticeGaines in the case of Taylor v. Hall, 71 Texas 213, Inwhich he said:

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. o . 0Since the passage of the act which' established the general land officeand provided for issuingpatents, no law has been passedwhich recognized any othermethod of extending titles from the State to thosewho acquired rights to specific portions of its publicdomain. 0

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.To the rule of authorizingpatents to issue in case of legislative confirmations,ori

Honorable Bascom Giles -- page 5 o-5553

relinquishment therewere a few exceptionsat a very early day. But we think the statutesabove referred to are sufficientto indicatea well defined policy on the part of the Legislature to provide for patents to all lands, the title to which were confirmed by or emanateddirectly from the Republic orState.
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. . . . . Insofar as we can determine, the policy approved and followedby Judge Gaines has remained and is the policy of the State of Texas at this time. The escheated lands having reverted to the State and all previous titles or claims to It having been nullified by the escheat proceedings,we think title to thls land is to begin anew direct from the sovereignof the soil. You are accordinglyadvised that it is the opinion of this office that the Governor and the Commissioner of the General Land Office have legal authority to issuepatents on escheatedpermanent free school lands after it has been sold and the purchase price has been paid In full.
Yours very truly

JwR/pw/wc ATTORNEYGENERAL OF TEXAS By s/JackW. Rotiland JackVI Rowland Assistant

APPROVED s/Gee. P (Acting)APR 25, 1944

Blackburn 'ATTORNEYGENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman