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: Opinion No. O-5553 

Re: Authority of the Governor and 

the Commissioner of the General 

Land Office to Issue patents on 

escheated permanent free school 

land. 

Reference is made to your letter of April 1, 1944 which 

is as follows: 

"The School Land Board and the Commissioner of 

the General Land Office are offering certain escheated lands for sale at the general sale of school 

lands scheduled May 2nd of this year. 

"These lands are being offered under authority 

conferred by 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. 

"Some question has been raised as to the authority of the Governor and the Commissioner of the General Land Office to issue patents on escheated lands 

after they have been sold and fully paid for under 

the above law. 

"Will gou therefore kindly advise me if the 

Governor and the Commissioner have legal authority 

to issue patents on these lands after they are sold 

and fully paid for." 

We are in accord with your view that escheated permanent 

free school land is to be offered for sale by the School Land 

Board and the Commissioner of the General Land Office under the 

authority conferred by 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 of Article 3272, Vernon's Annotated 

Civil Statutes, escheat occurs and vests title In the State 

immediately upon the death of the intestate without heirs. The 

succeeding Article 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 intestate and claim any part' 

of the money or property, he may file a petition against the 

State ascerting such claim provided such suit is instituted within four years after the date of the final judgment escheating 

such property to the State, and not thereafter. 

You state in your letter that more than four years have 

elapsed since the date final judgment was entered escheating 

the land being offered for sale, and no such claimant has appeared. We assume that the escheat proceedings In the District 

Court were regular in all respects. These facts being true, 

the State's title to the escheated land is now absolute. The 

question remaining is "How may escheated permanent free school 

lands be titled by the State of Texas?" 

In the case of Weideranclers v, State of Texas, 64 Texas 

133, the Supreme Court in an opinion by Mr. Justice Stagton 

said: 

"The constitution expressly confers upon the district 

courts jurisdiction of 'all suits in behalf of the state 

to recover penalties, forfeitures and escheats' (art. 

V, sec. 8, Const. ); but the same constitution declares 

that 'the legislature shall provide a method for determining what lands have been forfeited, and for giving effect to escheats.' Const., art. XIII, sec. 1. 

11 II * D . 0 . 0 . 

In carrying out the provisions of the Constitution, the 

43ra Legislature, Third Called Session, 1934, enacted Chapter 

60, now codified as Article 3281 in Vernon'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, appropriated andset apart to 

the Permanent Free School Fund of the State of Texas. 
Honorable Bascom Giles -- page 3 0 -5553 

. D . . Any escheated permanent free school lands 

may be sold by the Commissioner of 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 installments to bear interest at the rate 

of six (6) per cent per annum. Any lands SO sold 

shall be sold to the highest bidder as alae other 

public free school lands but no escheated lands shall 

be sold at a price of less than Two Dollars and Fifty 

Cents ($2.50) per acre. All sales of escheated permanent free school lands shall be with a reservation 

to the State of all the minerals in the land in 

favor of the Permanent Free 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 original grantor, 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 universally asserted 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 of Weideranders 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 through process, 

to be issued under the judgment, to divest not only 

the title of persons entitled to take the property 

of the deceased as his.heirs, if perchance any 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 of Hamilton v. Brown, 161 U.S, 256, 40 Law Edition 697, 

and followed by the Texas Court of Civil Appeals in the case 

of Unknown Heirs of Buchanan v. 

176 S.W. 914. 

Creighton. -- McShane 011 Company, 

The Supreme Court in the case of Hughes v. State, supra, 

with respect to the disposition of escheated land said: 

The survey and patent of the land to 

de la Tuile severed it from the mass of the public 

domain, and though it may be reinvested in the State 

again as escheated property, it will not become 

thereby subject to location or pre-emption until 

this has been done, if then, without direct leglslation subjecting it to such appropriation. . . . . . 

It might be well to note that the decisions of the 

Courts quoted above followed and referred to the old Statute 

which provided that e&heated lana'be sold by the sheriff by 

order of the Court declaring 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 Permanent Free School'Fund, is well s~ettled. 

Chapter 60, supra, amended the escheat law changing the met~hcd 

of sale, and dedicated, appropriated and set apart escheated 

land to the Permanent Free School Fund. It ~1s now soid subject 

to the reservations in the Amendatory Act that are not in conflict with the provisions of House Bill 9+ 

In connection with the titling of land owned by the '- 

State, we find a discussion of this subject in an opinion wrltten by Mr. Justice Gaines in the case of Taylor v. Hall, 71 

Texas 213, In which he said: 

!I * 0 a 0 . 

8, D . o . 0 Since the passage of the act which' 

established the general land office and provided for 

issuing patents, no law has been passed which recognized any other method of extending titles from 

the State to those who acquired rights to specific 

portions of its public domain. 0 . . . 0 

1, . 0 . D . To the rule of authorizing patents 

to issue in case of legislative confirmations ,or 
i 

Honorable Bascom Giles -- page 5 o-5553 

relinquishment there were a few exceptions at a very 

early day. But we think the statutes above referred to are sufficient to indicate a well defined 

policy on the part of the Legislature to provide for 

patents to all lands, the title to which were confirmed by or emanated directly from the Republic 

orState. . . . . . 

11 II . . . . . 

Insofar as we can determine, the policy approved and 

followed by 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 sovereign of the 

soil. You are accordingly advised that it is the opinion of 

this office that the Governor and the Commissioner of the General Land Office have legal authority to issue patents on escheated permanent free school lands after it has been sold 

and the purchase price has been paid In full. 

Yours very truly 

JwR/pw/wc 

ATTORNEY GENERAL OF TEXAS 

By s/Jack W. Rotiland 

Jack VI Rowland 

Assistant 

APPROVED 

s/Gee. P 

(Acting) 

APR 25, 1944 

Blackburn 

'ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman