THEAITORNICYGENERAL 

OF, TEXAS 

Ausrr~~. - 787ll 

JOaN 1. IalL& 

A-- alMamAn. 

July 19, 1977 

Honorable Chris A. Mealy 

County Attorney 

Llano County Courthouse 

Llano. Texas 

Opinion No. H- 1025 

Re: Validity of option to 

lease school land from 

Dear Mr. Mealy: 

YOU 

lands to 

inform us that Llano County leased certain school 

private individuals for a five-year period. The . . 

county. 

lease gave the lessees an option to re-lease the property 

at the end of the five-year period, provided they equaled 

the bid of any other party wishing to lease the land. You 

inquire whether the option is valid and binding on the county. 

Article 7, section 6 of the Texas Constitution, which 

provides for disposition of county school lands, reads in 

part: 

All lands . . . granted to the several 

counties of this State for educational 

purposes, are of right the property of 

said counties respectively. . . . Each 

county may sell or dispose of its lands 

in whole or in part, in manner to be 

provided by the Commissioners' Court of 

the county. 

Section 17.82(a) of the Education Code also authorizes 

the county to sell or dispose of school lands in the manner 

prescribed by the commissioners court. Under these constitutional and statutory provisions, the counties may lease 

school lands. Falls County v. DeLaney, 11 S.W. 492 (Tex. 

1889). 

We have found no Texas case which conclusively determines 

the power of the commissioners court to grant an option to 

lease school lands. In three cases, however, the courts have 

discussed the power of the commissioners to grant an option to 

purchase. In two of those cases the courts stated that the 

commissioners court lacked such power. Potter County v. C.C. 

p. 4233 
Aonorable Chris A. Mealy - Page 2 (S-1025) 

Slaughter Cattle Co., 254 S.W. 775 

jdgmtadoptea), n, 

(Tex. Comm'n App. 1923, 

235 S.W. 295 (Tex. Civ. App. -- Amarillo 

1921); Midland County v. Slaughtc 

App. 19'10, writ ref'd) 

!I, 130 S.W. 612 (Tex. Civ. 

19h8. 

The courl 

410 (Tex. Civ. ADD. 

t in Ellerd v. Cox,, 114 S.W. 

no writ) , however. conclu ded that 

the county had implied power to give an option to purchase as 

an incident to a lease. In none of these cases was the discussion of the validity of the purchase option necessary to 

the judgment, and the Supreme Court did not write on or expressly adopt the reasoning of the lower courts in any of the 

three cases. See Texas Rules of Form (3rd ed. 1974) at 6, 8, 

for explanationof the significance of "judgment adopted" cases 

and "writ refused" cases prior to 1927. 

We believe the disparate dicta of these lower court cases 

relating to options to purchase land provide little guidance 

in determining the power of a county to grant an option to 

lease its school lands. We find more persuasive the language 

used by the Supreme Court in upholding the power of a county 

to enter into an oil lease on,its school lands: 

There is nothing in the constitutional 

provision here involved which in the remotest degree limits the right of the 

commissioners' court to make a sale of 

its mineral estate upon terms similar to 

those made by citizens generally. 

Ehlinger v. Clark, 8 S.W.2d 666, 671 (Tex. 1928). This language was quoted in the more recent case of Upshur County v. 

Heydrick, 221 S.W.Zd 326, 328 (Tex. Civ. App. -- Eastland 

1949, writ ref'd n.r.e.1. Although the court did not directly consider the point, the contract upheld in Ehlinger 

v. Clark contained a "renewal" clause, empowering the lessee 

to defer commencement of drilling for 12 months upon payment 

of $200. 

While the matter is certainly not free from doubt, we 

believe the expansive reading of the constitutional power Of 

the commissioners court in Ehlinger v. Clark and Upshur County 

v. Heydrick indicates the courts would conclude that a County 

may lease its school lands upon terms similar to those made 

by citizens generally, including a reasonable option to extend 

the lease period. Cf. Gr~iffin v. Bell, 202 S.W. 1034 (Tex. 

Civ. App. -- Texarkz 1918, writ repd):' Blaffer 6 Farish V. 

Gulf Pipe Line Co., 218 S.W. 89 (Tex. Civ. App. -- Galveston 

P. 4234 
, 

Honorable Chris A. Mealy - Page 3 (R-1025) 

1919, no writ) (upholding validity of options in contracts by 

private parties). You have suggested no other grounds by 

which the contract in question might be invalid or not binding 

on the county. 

SUMMARY 

Texas courts would probably hold that 

the commissioners court of a county may 

lease the county's school lands upon 

terms similar to those made by citizens 

generally, including a reasonable option 

to extend the lease period. 

APPROVED: 

,JIgTiz 

. 

i 

Attorney General of Texas 

/ 

L&f 

DAVID M. KENDALL, First Assistant 

klw 

p. 4235