# THEAITORNICYGENERAL OF,TEXAS
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JOaN 1. IalL& A-- alMamAn. July 19, 1977

Honorable Chris A. Mealy County Attorney Llano County Courthouse Llano. Texas OpinionNo. 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-yearperiod. The

. . county.

lease gave the lessees an option to re-lease the property at the end of the five-yearperiod, provided they equaled the bid of any other party wishing to lease the land. You inquirewhether 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 commissionerscourt. Under these constitutional and statutoryprovisions, the countiesmay 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 commissionersto 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. 4233Aonorable ChrisA. Mealy - Page 2 (S-1025)

SlaughterCattle 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 inEllerd v. Cox,, 114 S.W. no writ),however. conclu ded that the county had impliedpower 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 purchaseoption necessaryto 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 (3rded. 1974)at 6, 8, for explanationof the significanceof "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 landprovide littleguidance in determining the power of a county to grant an option to lease its school lands. We findmore persuasive the language used by the Supreme Court in upholdingthe power of a county to enter into an oil lease on,its school lands:

There is nothing in the constitutional provision here involvedwhich in the remotest degree limits the right of the commissioners' court tomake a sale of itsmineral estate upon terms similar to thosemade 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 contractupheld in Ehlinger v. Clark containeda "renewal" clause, empowering the lessee to defer commencementof drilling for 12months uponpayment of $200. While thematter is certainly not free from doubt,we believe the expansive reading of the constitutionalpower Of the commissionerscourt in Ehlingerv. Clark and UpshurCounty v. Heydrick indicates the courtswould conclude thata County may lease its school lands upon terms similar to thosemade by citizens generally, including a reasonable option to extend the leaseperiod. 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

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

1919, no writ) (upholdingvalidity of options in contracts by private parties). You have suggestedno other grounds by which the contract in questionmight be invalidor not binding on the county. SUMMARY

Texas courts would probably hold that the commissioners court of a countymay lease the county's school lands upon terms similar to thosemade by citizens generally, includinga reasonable option to extend the leaseperiod.

APPROVED: 

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. i Attorney General of Texas / 

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DAVID M. KENDALL, First Assistant

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