The Honorable BobArmstrong 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 landpreviously set aside for school fund.

Dear Commissioner Armstrong:
In 1971 theTexas Legislature enacted an uncodified law granting the City of Corpus Christi submerged~lands in Corpus Christi Bay touse as apublic 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, thepertinent parts of the rather lengthy 1971 provision are set out below:

Section 1. The City of Corpus Christi, Texas, ahome rule city, desires to restore andmaintain a recreation beach, commonly known asCorpus Christi Beach, and intends to accomplish this purpose acting in conjunction with theUnited States Corps of Engineers, and other agents and contractors, and as a result of a survey and report made by theUnited States Corps of Engineers, such restoration has-been found and deemed tobe feasible, and theproject has received Congressional authorization.The Honorable BobArmstrong -page two (PI-881)

Sec. 2. In furtherance and inaid of the above objective there ishereby granted to the City of Corpus Christi, theUnited States Corps of Engineers, their respective agents and contractors, a construction easement, on the lands described in Section 3of thisAct, for thepurpose 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 theborrow areas described in Section 3, in furtherance of thepurpose stated in Section 1,on the lands described hereinafter in Section 3,which lands are owned by the State of Texas or inwhich the State has title or interest. There is expressly excluded from theprovisions hereof any vested private property rights.
Sec. 3. The lands towhich this construction easement isgranted 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 thewaters which all or any part of the land described in Section 3underlies, 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 saidwaters.

.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 theUnited States Corps of Engineers, or by either of them acting alone.

!rs -

subject tooil 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 anyword, phrase, clause, sentence or part of thisAct shall be held by any court of competent jurisdiction to be invalid or unconstitutional, or for any other reasons void orunconstitutional, it shall not affect any other word, phrase, clause, sentence orpart of thisAct, and such remaining portions shall remain in full force and effect. Acts 1971, 62nd Leg., ch. 883 at 2708. (Emphasis added).
Section 6grants Corpus Christi a fee simple determinable inTract 1, an estate thatwill last as long as the land is used for apublic beach. See Eyssen v. Zeppa, 100 S.W.Zd 417 (Tex.Civ. App. -- Texzana 1936,writ ref'd); 22Tex. Jur.Zd, Estates 9 7;Restatement of Property §§ 23, 44.The Honorable BobArmstrong -page four @-I-8813:

Section 2grants 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 theborrow area in Tract 2or 3. The Act does notprovide for compensating thepublic school fund for the grant of Tract 1, the removal of materials from theborrow area, or any other use of theproperty encompassed in the construction easement.
We will first consider thegrant of Tract 1 to Corpus Christi, thevalidity ofwhich turns onwhether the landhas been dedicated to thepermanent school fund. Article 7, section 2of theTexas 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 thatmay hereafter bemade 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 eof

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

-- Article 7, section 4requires 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 asmay beprescribed by law

. . . . This provision prevents the Legislature from giving the land away, although itmight 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 5governs the disposition of proceeds from the saleof school lands.

The principal of all bonds and other funds, and theprincipal arising from the sale of the lands hereinbefore set apart to said school fund, shall be the permanent school

p; ,37X:The Honorable BobArmstrong -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 tomake a free grant of school lands. Moreover, once the Legislature has dedicated land to thepermanent school fund, it may notwithdraw 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 inone-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

. . . .'IId. at 1006. Itwas held inE&v. State, 84 S.W. 607, 611 (Texxiv. App. 1904, writ refq),t once it appropriated lands to the school fund, "the Legislature could notby subsequent legislation change or destroy the character of these lands as public school lands

. . . .'I In 1900 the Settlement Act settled permanently the division ofmuch of the public domain but excluded lakes, bays,and islands on theGulf ofMexico within tidewater 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, thewaters of theGulf ofMexico and of the arms of the said Gulf, and thebeds and shores of the Gulf ofMexico, and the arms of the Gulf ofMexico, including all lands that are covered by thewaters of the said Gulf and its 'arms,either at low tide or high tide, within theboundaries of Texas, as herein fixed; and that all of said ----- lands are set apart and granted to the -- - --

p.3712The Honorable BobArmstrong -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 theprovisions of law governing the same. (Emphasis added).
Grants of lands under navigable waters are strictly construed against thegrantee, 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, itwill have tobe expressed inplain andpositive language and not ingeneral language." Id. We believe that the underlined language of article,5415axpressly and unambiguously grants tidelands and submerged lands to thepublic school fund. Moreover, it has been construed to havemade 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). Inview of the clear language dedicating submergedglandsto the permanent school fund and the inability of the Legislature to revoke itsgrant, we conclude that,the Legislature could not constitutionally grant Tract 1 to Corpus Christi without requiring compensation to thepermanent school fund.
Section 2of the 1971Act 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 theAct contains a saving clause, ithas no meaning when sections 2and 6are removed. Therefore, we believe that the 1971Act isunconstitutional in that it violates article 7, sections 2, 4and 5of the Texas Constitution.

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

SUMMARY
An Act granting theCity of Corpus Christi submerged landswithout compensation to the Public Free School Fund isunconstitutional in that itviolates article 7, sections 2, 4and 5of the Texas Constitution.

APPROVED: _Verytruly yours,

Attorney General of Texas

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