The Attorney General of Texas 

Msy 17, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12543 

Austin. TX. 78711. 2548 

512l47525Ql 

Telex 910/874-1367 

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San Antonlo. TX. 75205-2797 

51212254181 

An Equal Opportunity/ 

Affirmative Actlon Employer 

Honorable Bennie Bock II 

Chairman 

Committee on Environmental Affairs Re: Removal of timber from 

_ . . 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Dear Representative Bock: 

opinion No. Pg.&471 

land restricted to use ror 

public park and/or recreational 

purposes 

You have requested our opinion regarding the authority of the 

city of Rusk to sell timber rights to a 293.73 acre tract located in 

Cherokee County. In addition, you inquire as to what form a 

conveyance of timber should take; the application of articles 1019, 

5421q, and 5421c-12, V.T.C.S.. to the proposed sale; and the 

disposition of proceeds from such sale. 

In your opinion request you state that the land in question was 

obtained by trading a portion of a 487.33 acre tract which was 

conveyed to the city of Rusk by the Sixty-second Legislature, Acts 

1971, chapter 526, at 1787 [herein ,referred to as Senate Bill No. 

5201. The act specifies that "the land herein conveyed is to be used 

by the city of Rusk for public park and/or recreational purposes. If 

such land should be traded by the city of Rusk for other land, such 

other land shall be used for the same purposes." _ Id. at 12. 

Therefore, under the tenas of the grant, the tract in question is 

impressed with the same restrictions on use as the original 487.33 

acres conveyed by Senate Bill No. 520. 

Our answer to your inquiries will depend on the type of interest 

the city intends to convey. A timber deed which conveys title to 

standing timber, and contains language specifically granting a 

perpetual right to cut and remove, conveys an interest in land. 

Lodwick Lumber Company v. Taylor, 98 S.W. 238 (Tex. 1906). 

The city of Rusk is a general law city whose authority to convey 

an interest in land dedicated to park purposes is granted by statute. 

A sale of perpetual timber rights would therefore be by virtue of, and 

subject to, the requirements of articles 1017 and 1019, V.T.C.S. 

Zachry v. City of San Antonio, 305 S.W.2d 558 (Tex. 1957); City of 

p. 1645 
Representative Bennie Bock II - Page 2 (MW-471) 

Dublin v. Barrett, 242 S.W. 535 (Tex. Civ. App. - San Antonio 1922, 

writ dism'd w.0.j.). 

Article 1017 provides in part: 

The governing body of any incorporated city or 

town in this State, however incorporated, may sell 

and convey any land or interest in land owned, 

held or claimed as public square, (or.) park.... 

The proceeds of any such sale shall be used only 

for the acquisition and improvement of property 

for the same uses as that so sold... such sales 

shall be made by an ordinance passed by such 

governing bodies which shall direct the execution 

of conveyance by the mayor or city manager of any 

such city or town. 

Article 1019 provides: 

No public square or park shall be sold, until 

the question of such sale has been submitted to a 

vote of the qualified voters of the city or town, 

and approved by a majority of the votes cast at 

such election. 

We conclude that a conveyance of perpetual timber rights to the 

subject tract, since it is an interest in real property, can be made 

only .after such conveyance has been approved by the majority of the 

voters in an election as provided by article 1019. The conveyance 

could then be made pursuant to city ordinance as provided by article 

1017. Proceeds from the sale could only be applied toward the 

acquisition or improvement of property used for public park and/or 

recreational purposes. 

We also conclude that the provisions of articles 5421q and 

5421c-12, V.T.C.S., are applicable to a sale of perpetual timber 

rights by the city of Rusk. 

Article 5421q reads in part as follows: 

Section 1. No department, agency, political 

subdivision, county, or municipality of this state 

shall approve any program or project that requires 

the use or taking of any public land designated 

and utilized prior to the arrangement 'of such 

program or project as a park, or recreation 

area... unless such department, agency, political 

subdivision, county, or municipality, acting 

through its duly authorized governing body or 

p. 1646 
Representative Bennie Bock II - Page 3 (WW-471) 

officer, shall determine, after notice and a 

public hearing as required herein, that (1) there 

is no feasible and prudent alternative to the use 

or taking of such land, and (2) such program or 

project includes all reasonable planning to 

minimize harm to such land, as a park (or) 

recreation area... resulting from such use or 

taking; clearly enunciated local preferences shall 

be considered, and the provisions of the Act do 

not constitute a mandatory prohibition against the 

use of such area if the findings are made that 

justify the approval of a program or project. 

Sec. la. The department, agency, board, or 

political subdivision having control of the public 

land is not required to comply with Section 1 of 

this Article if: 

(1) The land is originally obtained and 

designated for another public use and is 

temporarily used as a park, recreational area, or 

wildlife refuge pending its utilisation for the 

originally designated purpose; 

(2) The program or project that requires the 

use or taking of the land being used temporarily 

as a park, recreation area, or wildlife refuge is 

the same program or project for which the land was 

originally obtained and designated; and 

(3) The land was not designated by the 

department, agency, political subdivision, county, 

or municipality for use as a park, recreation 

area. or wildlife refuge prior to the effective 

date of Section la of this Act. 

Section la became effective September 1. 1975, while the city received 

the land in question in 1971. Thus, section la(3) does not apply to 

this land. We believe the sale of timber rights constitutes a taking 

or use of a park or recreational area, and we find nothing in the 

language of section la which would exempt the city from the 

requirements of the act. 

Article 5421c-12 provides that "no land owned by a ,political 

subdivision of the State of Texas may be sold" without publication of 

notice that the land is offered for sale and the procedures under 

which sealed bids to purchase the land may be submitted. While there 

has been no judicial determination as to whether article 5421c-12 

p. 1647 
Representative Bennie Bock II - Page 4 (MW-471) 

applies to a sale of less than fee simple interest, section 4 of the 

act provides: 

Any conveyance, sale or trade wade under the 

exemptions set forth in Section 2, shall never be 

for less than the fair market value of the land or 

interest being conveyed, sold, or traded, as 

determined by an appraisal obtained by the 

political subdivision, which shall be conclusive 

of the fair market value thereof. 

We construe the statutory phrase uan interest in land" in section 

4 of the act to apply to conveyances of less than fee simple title. 

Therefore, the city of Rusk would be required to publish notice and 

receive sealed bids prior to a sale of perpetual timber rights on the 

subject tract. 

The foregoing discussion has been premised upon the assumption 

that the city of Rusk intends to sell a perpetual timber right which 

would constitute a conveyance of an interest in the park land. With 

the exception of the application of article 5421q, different 

conclusions will result if the city intends to convey something less 

than a perpetual estate in the subject timber. In Texas, a conveyance 

of standing timber which specifies a limited time for cutting and 

removal, or is silent in this regard, is a sale of personalty which 

passes title to only those trees which are cut and removed within the 

specified time. It passes no interest in the land. Lodwick Lumber 

Company v. Taylor, supra; Boykin vi Rosenfield; 9 S.W. 318 (Tex. 

1887). Therefore, such a couveyance by the city would not be subject 

to the provisioas of articles 1017, 1019, or 5421c-12, since, by their 

own terms, these statutes apply only to sales of land or an interest 

in land. Article 5421q, however, applies to "E of park or 

recreational areas.u (Emphasis added). In our opinion, the cutting 

and sale of timber is a "use" within the meaning of the statute, and 

the city of Rusk must comply with its provisions prior to any sale. 

The city of Rusk, as a general law city, has the general 

authority to convey personal property pursuant to article 962, 

V.T.C.S. The city is limited, however, in its exercise of this power 

with respect to timber growing on the subject tract. The terms of 

Senate Bill No. 520 restrict the use of the land granted therein, or 

laud obtained in trade, to use as a public park. The city is 

precluded from effectuating a sale of timber if said sale constitutes 

using the land for something other than park or recreational purposes. 

Zachry v. City of San Antonio, supra. We have found no authority, and 

we are not prepared to state categorically, that the removal of timber 

from park land is per se a non-conforming use. Such a determination 

is a factual matter which we are not empowered to determine. It is 

our view, however, that a particular use of a park or recreational 

p. 1648 
Representative Bennie Bock II - Page 5 (Mw-471) 

I 

area would likely be judicially upheld as permissible, if it would 

reasonably and probably contribute materially to the enjoyment of the 

land by members of the public. King v. City of Dallas, 374 S.W.Zd 707 

(Tex. Civ. App. - Dallas 1964, writ ref'd n.r.e.); City of Dallas v. 

Etheridge, 253 S.W.2d 640 (Tex. 1953). The removal of timber must 

therefor be directly related to the improvement of the land for park 

or recreational purposes. 

SUMMARY 

The city of Rusk is empowered to sell timber on 

land dedicated for park and/or recreational use. 

A sale of perpetual timber rights is a sale of an 

interest in real property. Therefore, the city 

must comply with the requirements of articles 

1017, 1019, 5421q, and 5421c-12. A sale of 

limited timber rights is a sale of personalty, but 

constitutes a use of park land under 5421q. The 

proceeds of a sale of limited timber rights may be 

expended only for the improvement of the land for 

park or recreational purposes. 

MARK WHITE 

Attorney General of Texas 

JOEN W. FAINTER, JR. 

First Assistant Attorney General 

RICBARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Bob Hughes 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

p. 1649