EA ORNEY GENERAL 

OF-XAS 

March 12, 1962 

Honorable James S , Grisham Opinion No. WW-1273 

Criminal District Attorney 

Canton, Texas Re: Whether a county can lawfully convey the minerals 

to its grantor on lands 

acquired for State Highway 

purposes on grounds of a 

mutual mistake in acquiring a fee simple title 

Dear Mr. Grisham: instead of an easement. 

Recently our office received an opinion request from 

you consisting of the letter comprising your request and a 

letter attached thereto, addressed to you and written by County 

Judge Truett Mayo. Judge Mayo's letter reads in part: 

I, Some thirty years past the 

State and County secured right of way 

for a State Highway Andy in so doing the 

right of way deeds were ta{en in the 

name of the County. . . . 

Your opinion request then asks the following question: 

"Where the County, in obtaining 

right-of-way easements, does so by acquiring complete fee title by warranty 

deed, which, of course, includes the 

mineral rights, whereas it was only 

necessary and the county only intended 

to acquire easement over the surface 

rights for the construction and maintenance of roads and the inclusion of 

the mineral rights was a mutual mistake 

between the parties: 

"Under these conditions, may the 

county legally reconvey the mineral 

right~s to the former ownership of thee 

land?" 

Land acquired by a county in the name of the county 

for the construction of State highways, is State property 
Honorable James S. Grisham, page 2 (WW-1273) 

irrespective of the fact that the deed is made out in the name 

of the acquiring county. The Supreme Court of Texas in Robbins 

v. Limestone County, 114 Tex. 345, 268 S.W. 915 (1925) reiterated 

in its opinion this law relating to the ownership of public roads 

and the control and authority thereover. On page 918, column 1, 

the Supreme Court said: 

But are public roads within 

the borders of a county its property, 

and is its title and control its own 

and inherent in it? 

'In their very nature and as 

exercised by the general sovereignty 

they belong to the state. From the 

beginning in our state the public roads 

have belonged to the state, and not to 

the counties. This is clearly reflected 

in the Constitution and early decisions 

of this court. 

n 

. . * . 

"Public roads are state property 

over which the.state has full control 

and authority." (Emphasis added.) 

Likewise, the authority to dispose of State lands, 

including State highway lands, resides exclusively in t e Legislature of the State. 38 Tex.Jur. 633, State of Texas, B 

Tex.Jur. 46, Public Lands, 6 25. 

34; 34 

A search of the Texas statutes fails to reveal the 

enactment of any statute by the Texas Legislature that would 

delegate the legislative right to dispose of public land and 

interests in existing State highways to the County Commissioners 

Court or any other officers of the county. 

In 34 Tex.Jur. 440, Public Officers, 8 67, it is 

said: 

"Public officers and governmental 

and administrative boards possess only 

such powers as are expressly conferred 

upon them by law or are necessarily 

impli:d from the powers so conferred. 

. . . 
Honorable james S. Grisham, page 3. (WW-1273) 

State v. Cage, 176 S.W. 928 (Civ.App., error ref.); 

Callaghan v. McGown, ,gO S.W. 319 (Civ.App., error ref.); Eastin 

v. F erguscn, ' 2Tex. 643, 23 S-W, 918; Harlingen Ind. School 

Disk. V. C. 5. Fage & Bra.* 48 S.W.2d 983 (C om.App.); State 

Line C .onsi:1. ~ School Dist. No. 6 v. Farwell Ind. SchoolDist., 

38 S.W.2d 61 

S"W. 1010 {Civ.App.J; Childress County v. State, 12'( Tex. 343, 

92 S.W.2d 1X1; Canales v. Laughlin, m Tex. 169, 214 S.W.2d 

451; Hill v, Sterrett, 252 S.W.2d 766 (Civ.App., n.r.e.). 

Since State highways are State property over which the 

State haps full control and authority irrespective of whether or 

not the right of way was acquired in the name of the county or 

the State, an? since the Legislature has enacted no statute 

authorizing the conveyances of any interest in an existing State 

highway by a County Commissioners Court or any county officers, 

nei.ther the &County Commissioners Court of Van Zandt County nor 

any ether county officials can convey the mineral rights of any 

Stase highw&v L ts the criginal owners of the land, which land 

now comprises a part of such highway. Therefore, we answer 

y2u1 question In the negative, the county cannot legally reconve,y the mineral .rights ,to the former owner of such lands. 

There .does exist, however, a method by which land 

not needed for highway purposes and which interest in land 

was cc,t Intended ts 'be lncL'j.;led in the acquiring deed but was 

i ri CT 1,!.:!3,ed by error may be returned to the grantor. The method 

to be emp~icyed is set out in Article 6673a, V.C.S. Said 

Article Fr::~vides 'in such circumstances that the Governor of 

+hls i c ,+ __,,..- z ,- 3.: ;;pon a recommendatinn from the State Highway Commi,ssicn ::?!.a5 he do so, may exenut,e and deliver such correction 

deed a3 is deemed necessary to rectify and resolve such error. 

S?JMMARY 

The n,.o:z3ty cannot convey to its 

original grant:crrs the mineral estate 

in land to which it has acquired the 

complete fee simple title by general 

:,%rranty deed fz~r State highway purposes 'bec.suse of a mlltual mistake 

betweer: :,r:e Farties in not excluding 

the miner31 estate from the transaction. 
Honorable James S. Grisham, page 4 (W+f-1273) 

However, Article 6673a, V.C.S., 

provides that when an interest in land 

acquired for State highway purposes 

was not intended to be included in 

the acquiring deed but was Included 

by error, the Governor of this State, 

upon recommendation of the State Highway Commission, may execute and deliver 

such correction deed as is deemed necessary to rectify and resolve the error. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

BY 

Assistant 

MR:ljb 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Thomas Burrus 

Jack Goodman 

Leon Pesek 

w. 0, Shultz 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Houghton Brownlee, Jr.