# The Attorney General of Texas
Msy 17, 1982 MARK WHITE Attorney General

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An Equal Opportunity/ Affirmative Actlon Employer HonorableBennie Bock II Chairman Committeeon EnvironmentalAffairs Re: Removal of timber from

_ . . Texas House of Representatives P. 0. Box 2910 Austin,Texas 78769
Dear RepresentativeBock: opinionNo.Pg.&471

land **restricted** to use ror publicpark 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 dispositionof proceeds from such sale.
In your opinion requestyou state that the land in questionwas 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 ,referredto 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 recreationalpurposes. If such land should be traded by the city of Rusk for other land, such other land shallbe used for the samepurposes."
_ 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 conveyedby SenateBillNo. 520. Our answer to your inquirieswill 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. LodwickLumber Companyv. Taylor, 98 S.W. 238 (Tex. 1906). The city of Rusk is a general law citywhose authority to convey an interest in land dedicated to park purposes is grantedby statute. A sale of perpetual timber rightswould thereforebe 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

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Dublin v. Barrett, 242 S.W. 535 (Tex. Civ. App. - San Antonio 1922, writ dism'dw.0.j.). Article 1017provides inpart:

The governingbody of any incorporatedcity 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 conveyanceby themayor or citymanager of any such city or town. Article 1019provides:

No public square or park shall be sold, until the question of such sale has been submitted to a vote of the qualifiedvoters 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 .aftersuch conveyancehas 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 recreationalpurposes. We also conclude that the provisions of articles 5421q and 5421c-12, V.T.C.S., are applicable to a sale of perpetual timber rightsby the city of Rusk. Article 5421q reads in part as follows:

Section 1. No department, agency, political subdivision,county,ormunicipalityof this state shallapproveany programor 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

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officer, shall determine, after notice and a public hearing as requiredherein, that (1) there is no feasibleand 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 enunciatedlocalpreferencesshall be considered, and the provisions of the Act do not constitutea mandatoryprohibitionagainst the use of such area if the findings are made that justify the approvalof a program or project.
Sec. la. The department, agency, board, or political subdivisionhaving controlof the public land is not required to comply with Section 1 of thisArticle if: (1) The land is originally obtained and designated for another public use and is temporarilyused as a park, recreational area, or wildlife refuge pending its utilisation for the originallydesignatedpurpose; (2) The program or project that requires the use or taking of the land being used temporarily as a park, recreationarea, or wildlife refuge is the same program or project forwhich the landwas originallyobtainedand 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 thisAct. Section labecame 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 constitutesa 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 requirementsof the act. Article 5421c-12 provides that "no land owned by a ,political subdivisionof the State of Texas may be sold"without publication of notice that the land is offered for sale and the procedures under which sealedbids to purchase the land may be submitted. While there has been no judicial determination as to whether article 5421c-12

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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, shallnever be for less than the fairmarketvalue 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 fairmarket value thereof.
We construethe statutoryphrase uan interestin 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 sealedbids 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 rightwhich would constitutea conveyance of an interest in the park land. With the exception of the application of article 5421q, different conclusionswill result if the city intends to convey something less than a perpetualestate 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 treeswhich are cut and removedwithin 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 couveyanceby the citywould not be subject to theprovisioasof 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 recreationalareas.u (Emphasisadded). In our opinion, the cutting and sale of timber is a "use"within themeaning of the statute, and the city of Ruskmust complywith itsprovisionsprior 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 effectuatinga sale of timber if said sale constitutes using the land for somethingother than park or recreationalpurposes. Zachryv. City of SanAntonio,supra. We have foundno authority,and we are not prepared to state categorically,that the removal of timber from park land isper se a non-conforminguse. 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

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I

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

reasonablyand probably contributematerially to the enjoyment of the landby members of thepublic. 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 thereforbe directly related to the improvement of the land for park or recreationalpurposes. SUMMARY

The city of Rusk is empowered to sell timberon land dedicated for park and/or recreationaluse. 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 limitedtimberrights is a sale of personalty,but constitutes a use of park land under 5421q. The proceeds of a sale of limited timber rightsmay be expended only for the improvementof the land for park or recreationalpurposes.

MARK WHITE AttorneyGeneral of Texas JOENW. FAINTER,JR. FirstAssistantAttorneyGeneral RICBARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Bob Hughes AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Rick Gilpin PatriciaHinojosa Jim Moellinger

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