The Honorable Bob Armstrong Opinion No. H-881~ 

Commissioner 

General Land Office Re: Constitutionality of 

Austin, Texas 78701 statute granting to City 

of Corpus Christi conditional title in submerged 

land previously set aside 

for school fund. 

Dear Commissioner Armstrong: 

In 1971 the Texas Legislature enacted an uncodified law 

granting the City of Corpus Christi submerged~lands in 

Corpus Christi Bay to use as a public beach without compensating the permanent school fund. You have asked whether 

the statute attempts an unconstitutional grant of school 

lands. 

Because it is not found in the codified compilation of 

Texas statutes, the pertinent parts of the rather lengthy 

1971 provision are set out below: 

Section 1. The City of Corpus Christi, 

Texas, a home rule city, desires to restore 

and maintain a recreation beach, commonly 

known as Corpus Christi Beach, and intends 

to accomplish this purpose acting in conjunction with the United States Corps of 

Engineers, and other agents and contractors, 

and as a result of a survey and report made 

by the United States Corps of Engineers, 

such restoration has-been found and deemed 

to be feasible, and the project has received 

Congressional authorization. 
The Honorable Bob Armstrong - page two (PI-881) 

Sec. 2. In furtherance and in aid of the 

above objective there is hereby granted to 

the City of Corpus Christi, the United States 

Corps of Engineers, their respective agents 

and contractors, a construction easement, on 

the lands described in Section 3 of this Act, 

for the purpose of allowing such city, the 

Corps of Engineers, their agents and contractors to conduct dredging, filling, 

excavation, and all necessary operations, 

without payment to the State for any fill 

material of any kind or character removed 

from the borrow areas described in Section 

3, in furtherance of the purpose stated in 

Section 1, on the lands described hereinafter 

in Section 3, which lands are owned by the 

State of Texas or in which the State has 

title or interest. There is expressly 

excluded from the provisions hereof any 

vested private property rights. 

Sec. 3. The lands to which this construction easement is granted shall be 

described as follows: 

TRACT1 

[Description] 

TRACT.2 - Proposed Borrow Area 

[Description] 

TRACT 3 - Alternate Borrow Area 

[Description] 

Sec. 4. Insofar as the State of Texas 

has jurisdiction and authority over the waters 

which all or any part of the land described 

in Section 3 underlies, grant is hereby made 

to the City of Corpus Christi, and the United 

States Corps of Engineers , or their contractors 

and agents to conduct all operation necessary 

in furtherance of the aforesaid objective in, 

through and upon said waters. 

.p. 3709, 
The Honorable Bob Armstrong - page three (H-88I): 

Sec. 5. The grant of authority herein shall 

extend to contracts let in furtherance of the 

objective stated herein whether let jointly 

by the City of Corpus Christi and the United 

States Corps of Engineers, or by either of 

them acting alone. 

!rs 

- 

subject to oil and gas directional drilling 

only and off-site mining of other minerals. 

Sec. 7. All laws or parts of laws in 

conflict herewith,are hereby repealed to 

the extent of such conflict. 

Sec. 8. If any word, phrase, clause, 

sentence or part of this Act shall be held 

by any court of competent jurisdiction to be 

invalid or unconstitutional, or for any other 

reasons void or unconstitutional, it shall 

not affect any other word, phrase, clause, 

sentence or part of this Act, and such 

remaining portions shall remain in full force 

and effect. Acts 1971, 62nd Leg., ch. 883 at 

2708. (Emphasis added). 

Section 6 grants Corpus Christi a fee simple determinable 

in Tract 1, an estate that will last as long as the land is 

used for a public beach. See Eyssen v. Zeppa, 100 S.W.Zd 

417 (Tex. Civ. App. -- Texzana 1936,writ ref'd); 22 Tex. 

Jur.Zd, Estates 9 7; Restatement of Property §§ 23, 44. 
The Honorable Bob Armstrong - page four @-I-8813: 

Section 2 grants Corpus Christi, the United States Corps 

of Engineers, and their agents and contractors, a construction 

easement, which permits them to excavate and remove fill 

materials from the borrow area in Tract 2 or 3. The Act 

does not provide for compensating the public school fund for 

the grant of Tract 1, the removal of materials from the borrow 

area, or any other use of the property encompassed in the 

construction easement. 

We will first consider the grant of Tract 1 to Corpus 

Christi, the validity of which turns on whether the land has 

been dedicated to the permanent school fund. Article 7, section 

2 of the Texas Constitution determines the components of the 

permanent school fund. 

All funds, lands and other property heretofore 

set apart and appropriated for the support of 

the public schools; all the alternate sections 

of land reserved by the State out of grants 

heretofore made or that may hereafter be made 

to railroads or other corporations of any 

nature whatsoever; one haif of the ublic 

domain of the State; ~ndl~um~o mone -- 

fhatmay come toe Statgrme -%? sa e of -- 

Fportionf same . . . .(jEm$%isdded). -- 

Article 7, section 4 requires that these lands be sold. 

The lands herein set apart to the Public 

Free School fund shall be sold under such 

regulations, at such times, and on such 

terms as may be prescribed by law . . . . 

This provision prevents the Legislature from giving the land 

away, although it might postpone sale and instead lease the 

land. Wheeler v. Stanolind Oil & Gas Co., 252 S.W.2d 149, 

;;;o,(Tex. Sup. m52); Reed v. Rogan, 59 S.W. 255 (Tex. Sup. 

. 

Article 7, section 5 governs the disposition of proceeds 

from the sale of school lands. 

The principal of all bonds and other funds, 

and the principal arising from the sale of 

the lands hereinbefore set apart to said 

school fund, shall be the permanent school 

p; ,37X: 
The Honorable Bob Armstrong - page five (H-881) 

fund . ., . . And no law shall ever be 

enacted appropst=g-any part ofhe 

permanent . . . school fund to z other 

purpose whatever . . . (Emiihasisadaed). 

These constitutional provisions render the Legislature 

powerless to make a free grant of school lands. Moreover, once 

the Legislature has dedicated land to the permanent school 

fund, it may not withdraw it. The Texas Supreme Court in 

Hague v. Baker, 45 S.W. 1004, 1005 (Tex. Sup. 18981, stated 

that azim, section 2, "fixed the right of the school 

fund in one-half of the unappropriated public domain, but 

left the legislature . . . with extended authority over the 

segregation of that interest . . . ." The Court went on to 

say that "where the legislature has taken affirmative action, 

and has provided pro tanto for the segregation of the interest 

of the school fund, its action is final . . . .'I Id. at 1006. 

It was held in E&v. State, 84 S.W. 607, 611 (Texxiv. 

App. 1904, writ refq),t once it appropriated lands to 

the school fund, "the Legislature could not by subsequent 

legislation change or destroy the character of these lands as 

public school lands . . . .'I In 1900 the Settlement Act 

settled permanently the division of much of the public domain 

but excluded lakes, bays , and islands on the Gulf of Mexico 

within tide water limits. Acts 1900, 26th Leg., 1st C. S., 

ch. 11 at 29. When the Legislature subsequently placed 

lands excluded by the Settlement Act in the public school 

fund, its decision was also final as to them. Attorney 

General Opinion M-356 (1969). 

In 1941 the Legislature enacted article. 5415a, V.T.C.S. 

The pertinent portion of that statute reads as follows: 

Sec. 3. The State of Texas owns, in 

full and complete ownership, the waters 

of the Gulf of Mexico and of the arms of 

the said Gulf, and the beds and shores of 

the Gulf of Mexico, and the arms of the 

Gulf of Mexico, including all lands that 

are covered by the waters of the said 

Gulf and its 'arms, either at low tide or 

high tide, within the boundaries of Texas, 

as herein fixed; and that all of said ----- 

lands are set apart and granted to the -- - -- 

p. 3712 
The Honorable Bob Armstrong - page six (H-881) 

Permanent Public Free School Fund of the 

State, andmbeeT?f-%?mbenefit 

ofe Public Free School Fund of this 

State according to the provisions of law 

governing the same. (Emphasis added). 

Grants of lands under navigable waters are strictly construed 

against the grantee, and any ambiguity will be resolved in 

favor of the State. State v. Bradford, 50 S.W.Zd 1065, 1075 

(Tex. Sup. 1932). The Supreme Court has said that "before a 

statute will be construed to include land under navigable 

waters, such as river beds and channels, it will have to be 

expressed in plain and positive language and not in general 

language." Id. We believe that the underlined language of 

article,5415axpressly and unambiguously grants tidelands 

and submerged lands to the public school fund. Moreover, it 

has been construed to have made this grant. Butler v. Sadler, 

399 S.W.Zd 411, 419 (Tex. Civ. App. -- Corpus Christrl966, 

writ ref'd n.r.e.); Attorney General Opinion M-356 (1969). 

In view of the clear language dedicating submerged glands to 

the permanent school fund and the inability of the Legislature 

to revoke its grant, we conclude that,the Legislature could 

not constitutionally grant Tract 1 to Corpus Christi without 

requiring compensation to the permanent school fund. 

Section 2 of the 1971 Act grants a construction easement 

over all three tracts in furtherance of the Corpus ChristiBeach restoration project. We believe that the grant of. 

this easement was inextricably intertwined with the grant of 

the restored beach to Corpus Christi. The invalidation of 

section 6 impairs the purpose underlying section 2 so that 

the latterprovision cannot stand alone. 

Although the Act contains a saving clause, it has no 

meaning when sections 2 and 6 are removed. Therefore, we 

believe that the 1971 Act is unconstitutional in that it 

violates article 7, sections 2, 4 and 5 of the Texas 

Constitution. 

p. 3713 
The Honorable Bob Armstrong - page seven (H-881) 

SUMMARY 

An Act granting the City of Corpus Christi 

submerged lands without compensation to 

the Public Free School Fund is unconstitutional in that it violates article 7, 

sections 2, 4 and 5 of the Texas Constitution. 

APPROVED: 

_Very truly yours, 

Attorney General of Texas 

jwb 

p. 3714