_ OFFICE OF THE ATTORNEY GENERAL . STATE 0~ TEXAS 

JOHN CORNYN 

August 1,200l 

The Honorable Jeff Wentworth 

Chair, Redistricting Committee 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 7871 l-2548 

Opinion No. JC-0399 

Re: Whether the Llano County Commissioners 

Court may delegate its authority over county 

school lands to the Board of Trustees of the Llano 

Independent School District (RQ-0350-JC) 

Dear Senator Wentworth: 

You request an opinion on whether the Llano County Commissioners Court may delegate 

its authority to sell, lease, or otherwise dispose of county school lands to the Llano Independent 

School District if the district agrees to waive the liability of the commissioners court for actions 

taken in connection with the school lands.’ See TEX. PROP. CODE ANN. § 114.032 (Vernon Supp. 

2001). Pursuant to article VII, section 6 ofthe Texas Constitution, the Llano County Commissioners 

Court is trustee of the county school lands granted to the county, and it may not delegate its 

responsibility for the land to another entity. 

Your inquiry concerns the public school lands granted to Llano County for the benefit of 

education in the county.2 Beginning in 1838, the Republic of Texas set apart land to each county to 

fund the establishment ofpublic schools. See TEX. CONST. art. VII, 5 6, inter-p. commentary (Vernon 

1993). Article VII, section 6 of the Texas Constitution provides for the ownership and disposition 

of the county school lands as follows: 

All lands heretofore, or hereafter granted to the several counties of 

this State for educational purposes, are of right the property of said 

counties respectively, to which they were granted, and title thereto is 

‘You state y our question in terms of whether the Llano County Commissioners Court may delegate its 

management authority over the school land property to the school district. See Letter from Honorable Jeff Wentworth, 

Chair, Senate Redistricting Committee, to Honorable John Cornyn, Texas Attorney General (Feb. 16,200l) [hereinafter 

Wentworth Brief]. By management, we understand you to refer to the commissioners court’s authority to sell, lease, 

and otherwise dispose of the school lands, including other duties incident to its ownership of the lands as trustee for the 

schools in the county. See generally Logan v. Stephens Co., 83 S.W. 365 (Tex. 1904). 

2See Wentworth Brief, supra note 1. 
The Honorable Jeff Wentworth - Page 2 (JC-0399) 

vested in said counties, and no adverse possession or limitation shall 

ever be available against the title of any county. Each county may 

sell or dispose of its lands in whole or in part, in manner to be 

provided by the Commissioners’ Court of the county. . . . Said lands, 

and the proceeds thereof, when sold, shall be held by said counties 

alone as a trust for the benefit of public schools therein . . . . 

TEX. CONST. art. VII, 8 6. See also TEX. Lot. GOV’T CODE ANN. 9 263.003 (Vernon 1999) 

(commissioners court may dispose of county school lands only as provided by law); Act of June 2 1, 

1969,61 st Leg., R-S., ch. 889,§ 1, sets. 17.8 l-.83,1969 Tex. Gen. Laws 2735,2846-47, reprinted 

in TEX. EDUC. CODE ANN. tit. 2 app. at 195-96 (Vernon 1996) (former sections 17.8 l-.83 of the 

Education Code).3 A county may lease as well as sell its school lands. See Falls County v. DeLaney, 

11 S.W. 492 (Tex. 1889). The funds generated by the sale or lease of county school lands are placed 

in the available school fund of the county. See TEX. CONST. art. VII, $j 6; TEX. EDUC. CODE ANN. 

tit. 2 app. at 195-96 (Vernon 1996) (former TEX. EDUC. CODE AN-N. 9 17.82); Tex. Att’y Gen. Op. 

No. O-2111 (1940) at 3. 

Most counties in Texas have sold their county school lands and invested the proceeds in 

authorized securities. See 36 DAVID B. BROOKS, TEXAS PRACTICE: COUNTY AND SPECIAL DISTRICT 

LAW 5 30.2 (1989). Llano County, however, still holds more than 17,000 acres of county school 

land located in Tom Green County.4 The beneficiaries of these lands are the Llano Independent 

School District (“Llano ISD”), which is located entirely within Llano County, and the Bumet 

Consolidated Independent School District, a small part of which is located in Llano County. Over 

the years, some of the property has been sold, but most of it has been leased for grazing, hunting, 

mineral exploration, and excavation .5 You state that the Llano County Commissioners Court has 

often sold or encumbered this property without consulting the school districts and has sporadically 

reported activities regarding this property to the districts.6 

3These provisions were repealed in 1995, but section 11.30 1 of the Education Code provides for their continued 

application to county public school lands. See Act of May 29, 1995,74th Leg., R.S., ch. 260, 6 58, 1995 Tex. Gen. 

Laws 2207,2498; TEX. EDUC. CODE ANN. $11.301 (Vernon 1996). They may be found in the appendix following title 

2 of the Education Code. See TEX. EDUC. CODE ANN. tit. 2 app. at 195-96 (Vernon 1996). 

4Brief from George E. Grimes, Jr., Walsh, Anderson, Brown, Schulze & Aldridge, P.C., to Susan D. Gusky, 

Chair, Opinion Committee, Office of Attorney General, at 2 (Apr. 13, 2001) (on file with Opinion Committee) 

[hereinafter Grimes Brief]. 

‘Wentworth Brief, supra note 1, at 1; Grimes Brief, supra note 4, at 5. 

6Wentworth Brief, supra note 1, at 2. 
The Honorable Jeff Wentworth - Page 3 (JC-0399) 

The school districts would like the Llano County Commissioners Court to delegate its 

authority over the school lands to the Board of Trustees of the Llano ISD. In exchange, the school 

districts would agree to waive the commissioners court’s liability as trustee for the school lands 

pursuant to Property Code section 114.032, which authorizes releasing the trustee’s liability by a 

written signed agreement between the trustee and beneficiary. See generally County Sch. Trs. v. 

Brazoria County, 240 S.W. 675,676 (Tex. Civ. App.-Galveston 1922, no writ) (county is liable for 

amount of county school fund that commissioners court diverted to county purposes, plus interest); 

Comanche County v. Buds, 166 S.W. 470, 472 (Tex. Civ. App.-Fort Worth 1914, writ ref d) 

(county liable for proceeds of a sale of school lands, which were diverted to county purposes). We 

must determine whether the Llano County Commissioners Court may delegate its authority to sell, 

lease, or otherwise dispose of the county school lands to the Llano ISD on these terms. 

Article VII, section 6 of the Texas Constitution establishes an express trust in which the 

commissioners court acts as trustee of the county school lands for the benefit of the public schools 

in the county. See, e.g., Delta County v. Blackburn, 93 S.W. 419,422 (Tex. 1906); Brazoria County, 

240 S.W. at 676; Buds, 166 S.W. at 473-74; Tex. Att’y Gen. Op. No. JC-0004 (1999) at 2, H-506 

(1975) at 2, H-239 (1974) at 1, V-l 089 (1950) at 3. It gives the commissioners court the power to 

sell or otherwise dispose of school lands and leaves it free to provide the manner of sale. See Martin 

County v. Magnolia Petroleum Co., 252 S.W.2d 266,269 (Tex. Civ. App.- Amarillo 1952, no writ). 

Article VII, section 6 also prevents the commissioners court from delegating its authority to 

dispose of the county school lands of which it is trustee. See Logan v. Stephens County, 83 S.W. 

365,367 (Tex. 1904). The commissioners court has no power to delegate to another person or entity 

its discretionary authority to sell, lease, or otherwise dispose of the lands. See Williams v. Pure Oil 

Co., 78 S.W.2d 929,931 (Tex. 1935); Potter County v. C. C. Slaughter Cattle Co., 254 S.W. 775, 

777-78 (Tex. 1923); Gallup v. Liberty County, 122 S.W. 291, 294 (Tex. Civ. App.-San Antonio 

1909, writ ref d); Logan, 83 S.W. at 367. An order of the commissioners court attempting to 

delegate authority to sell the land is invalid, and a sale and deed executed by an agent under such 

order is also invalid. See Pure Oil Co., 78 S.W.2d at 931; Logan, 83 S.W. at 367. Based on these 

authorities, we conclude that the Llano County Commissioners Court may not delegate its authority 

as trustee of the county school lands to the Llano ISD. 

We are however informed that “it is the intention of the Llano Independent School District 

that its written agreement with Llano County will provide that any action taken by the School 

District will be expressly ratified by the Llano County Commissioners’ Courtyy7 It is thus suggested 

that the commissioners court may delegate authority to sell or lease school lands if it binds itself to 

ratify each action by the school board, including a sale, lease, or other disposition of the land. 

7Grimes Brief, supra note 4, at 7. 
The Honorable Jeff Wentworth - Page 4 (JC-0399) 

In a judicial decision on the ratification of an invalid sale of school lands, the court defined 

“ratification” as follows: 

Ratification is the election by a person, and the expression of such 

election by words or conduct, to accept an act or contract previously 

done or entered into in his behalf by another who had at the time no 

authority to do the act or make the contract on his behalf. 

Gallup, 122 S.W. at 296 (quoting 1 WILLIAM LAWRENCE CLARK & HENRY H. SKYLES: TREATISE 

ON THE LAW OF AGENCY 9 98 (1905)); see also T & R Assoc., Inc. v. City ofAmarillo, 688 S.W.2d 

622, 630 (Tex. App.-Amarillo 1985, writ ref d n.r.e.) (giving similar definition of “ratification”). 

The commissioners court, with knowledge of all material facts, may ratify a sale of school lands that 

is invalid because it was made by a person other than the commissioners court. See Boydstun v. 

Rockwall County, 24 SW. 272,274 (Tex. 1893); Brazoria County v. Rothe, 168 S.W. 70’74 (Tex. 

Civ. App.- San Antonio 1914, writ ref d); Gallup, 122 S. W. at 296. 

Ratification necessarily involves an exercise of discretion by the commissioners court 

because the court must decide, based on its knowledge of all material facts, whether to accept or 

reject the sale or other disposition of county school lands. Absent statutory or constitutional 

authority, the commissioners court may not delegate powers requiring the exercise of judgment and 

discretion to another entity. See Guerra v. Rodriguez, 239 S.W.2d 915 (Tex. Civ. App.-San Antonio 

1951, no writ); Padgett v. Young County, 204 S.W. 1046,1052 (Tex. Civ. App.-Fort Worth 1918, 

writ dism’d); see also Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385,391 

(Tex. 1977). 

Moreover, ratification necessarily takes place after the transaction has occurred. Thus, an 

attempt to “ratify” a transaction before it takes place is not ratification, but actually the prior 

authorization of the transaction. See generally Armstrong v. Palmer, 2 18 S. W. 627’63 1 (Tex. Civ. 

App.-Amarillo 1920, writ ref d) (prior and contemporaneous acts of principal authorize the 

transaction in advance and are not a basis for ratification); 3 TEX. JUR.3D Agency, Ej 116 (1996); 1 

WILLIAM LAWRENCE CLARK & HENRY H. SKYLES, TREATISE ON THE LAW OF AGENCY 9 98 (1905) 

(an act, in order to be the subject of ratification, must have been unauthorized). As we have already 

determined, the commissioners court may not authorize another person to exercise its authority over 

school lands. The attempt to ratify in advance would be an invalid effort to delegate the county’s 

constitutional authority over the school lands to the Llano ISD. Accordingly, the commissioners 

court may not bind itself to ratify each sale, lease, or other disposition of the school land by the 

school board. 

It is also suggested that the proposed contract is authorized by certain provisions of the Texas 

Trust Code, TEX. PROP. CODE ANN., tit. 9, subtit. B, $5 111.001-l 15.017 (Vernon 1995 & Supp. 

200 1). For example, section 113 .O 18 of the Property Code authorizes a trustee to “employ attorneys, 
The Honorable Jeff Wentworth - Page 5 (JC-0399) 

accountants, agents, including investment agents, and brokers reasonably necessary in the 

administration of the trust estate.” TEX. PROP. CODE ANN. 5 113.018 (Vernon Supp. 2001). Section 

113.060 of the Property Code authorizes a trustee to delegate investment decisions to an investment 

agent, subject to a number of conditions, including notifying the beneficiary before entering into an 

agreement with an investment agent. Id. cj 113.060. Section 114.032 provides that a written 

agreement between a trustee and a beneficiary, including a release, consent, or other agreement 

relating to a trustee’s duty, power, responsibility, restriction, or liability, is final and binding on the 

beneficiary and persons represented by the beneficiary if it is signed by the beneficiary and if certain 

other conditions are met. See id. 4 114.032. 

This office has on occasion relied on provisions of the Texas Trust Code to determine a 

county’s authority with respect to investing the available school fund. See Tex. Att’y Gen. Op. Nos. 

M-l 104 (1972) at 2 (restriction against trustee selling property to trust); JC-0004 (1999) at 2 

(“prudent investor” standard). No opinion states that the Texas Trust Code applies in its entirety to 

the trust in county school lands established by Texas Constitution article VII, section 6. Moreover, 

to the extent that provisions of the Texas Trust Code are inconsistent with the duties of the 

commissioners court established by article VII, section 6 of the Texas Constitution, they may not 

apply to the commissioners court as trustees of the county school lands. See TEX. PROP. CODE ANN. 

5 113 -001 (Vernon 1995) (“A power given to a trustee by this subchapter does not apply to a trust 

to the extent that the instrument creating the trust . . . conflicts with or limits the power.“). 

The Llano County Commissioners Court has a nondelegable duty under article VII, section 

6 of the Texas Constitution to sell or otherwise dispose of the county school lands granted to it for 

educational purposes. It may not delegate its constitutional authority to agents employed under 

Property Code section 113.018 nor may it delegate its investment decisions to investment agents 

pursuant to section 113.060 of the Property Code. The commissioners court is liable for failure to 

carry out duties as trustee of the county school lands, and it may not free itself from liability pursuant 

to section 114.032 of the Property Code. We conclude that the Llano County Commissioners Court 

may not contract with the Board of Trustees of the Llano ISD to delegate its authority to sell, lease, 

or otherwise dispose of the county school lands to the school district. 
The Honorable Jeff Wentworth - Page 6 (JC-0399) 

SUMMARY 

Pursuant to article VII, section 6 of the Texas Constitution, 

the Llano County Commissioners Court is trustee of the county 

school lands granted by the state to Llano County for educational 

purposes, and it has a nondelegable duty under the constitution to sell 

or otherwise dispose of the school lands. The commissioners court 

may not delegate its authority to sell, lease, or otherwise dispose of 

the county school lands to the Llano Independent School District. 

Provisions of the Texas Trust Code that are inconsistent with the 

constitutionally-mandated role of the commissioners court as trustee 

of the county school lands do not apply to the trust in these lands and 

their proceeds. 

N CORNYN 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee