The Attorney General of Texas 

July 8, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin. TX. 76711. 2546 

5121475.2501 

Telex 9101674-1367 

Telecopier 5121475.0266 

Honorable Dan W. Heard 

Criminal District Attorney 

Calhoun County 

P. 0. Box 1001 

Port Lavaca, Texas 77979 

Dear Mr. Heard: 

Opinion No.MW-489 

I&: Status of property conveyed to city of Port Lavaca 

by state of Texas 

1607 Main St., Suite 1400 

Dallas, TX. 75201-4709 

2141742.6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

9151533.3464 

1220 Dallas Ave., Suite 202 

HOUS~O”, TX. 77002.6966 

7131650-0666 

606 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

6061747.5236 

4309 N. Tenth. Suite S 

McAHen, TX. 76501-1665 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205-2797 

5121225.4191 

An Equal Opportunity1 

Affirmative Action Employer 

In 1921, the Texas Legislature granted 75 acres of submerged land 

to the city of Port Lavaca. 1921 Tex. Gen. Laws, ch. 80, Pl, at 158. 

Section 1 of the grant reads as follows: 

All right, title and interest of the State of 

Texas... is hereby granted to said city for public 

purposes only... (Emphasis added). 

Section 2 of the grant gives the city the power to erect buildings and 

other improvements for public purposes, to rent the buildings for 

public purposes, and to build seawalls and breakwaters. This section 

also prohibits the city from taking dredging material from the bay, 

and from placing or permitting any building on the land except for 

ornamental or civic purposes. In other sections, the state reserves 

the mineral rights and the right to build wharves, piers, and 

buildings for state or government purposes. 

The city now wants to convey part of this land to a certain 

individual as part of the settlement of a dispute between the city and 

two companies which also claim an interest in the submerged lands. 

The settlement contract calls for the city to convey to this 

individual "its rights from its patent to the remainder of the fee in 

the franchise area of Bauer (Channel Dock and Harbor Company, Inc.) 

and to recognize the validity of the grant by the state of Texas to 

Bauer of its franchise area." According to the terms of the 

agreement, the individual would become the sole stockholder of Bauer 

Channel Dock and Harbor Company, Inc. (hereinafter referred to as 

Bauer, Inc.). You advise that Bauer, Inc., is a channel and dock 

company chartered by the state in 1959 under now-repealed statutes 

which granted xhannel and dock companies certain rights to use and 

profit from submerged lands in exchange for improving them for 

navigation and commerce. However, you also inform us that there was 

no legislative action at that time relating to title or possession of 

these lands. 

p. 1736 
Honorable Dan W. Heard - Page 2 W-489) 

Your questions are as follows: 

1. Can the city of Port Lavaca legally sell 

any of the land patented to the city by the 1921 

Legislative Act? 

2. Are there any statutes, legislative act, 

laws, etc., that repeal any section of the special 

legislation of 1921? 

3. Is the city patented area still for 

public purposes only today? 

4. Is the city patent a limited grant and 

if so, can the city of Port Lavaca convey a good, 

clear, fee simple title to any of the area to any 

individual or corporation? 

Municipal property held in a governmental capacity, i.e., for a 

public use, cannot be sold without legislative authority but must be 

devoted to the uses and purposes for which it was intended. Property 

possessed and used by municipal corporations as public agencies of the 

state for the purpose of governmental administration cannot be 

alienated by them without special authorization. Weekes v. City of 

Galveston, 51 S.W. 544 (Tex. Civ. App. - 1899, writ ref'd); 10 E. 

McQuillin, "Municipal Corporations" 5928.37, 28.38, at 77, 83 (3rd ed. 

1981). If the city of Port Lavaca owns the submerged land in trust 

for the public, then it cannot alienate the land without express 

authority from the Texas Legislature. The city's general power to 

sell land does not give the city the power to sell land burdened with 

a public trust. That power must be granted specifically. Compton v. 

Waco Bridge Company, 62 Tex. 715 (1883). 

The legislature granted "[a]11 rights, title and interest of the 

State to all the land... to [the] city for public purposes only." 

(Emphasis added). This language, interpreted in light of the rules of 

construction for grants of submerged land and the circumstances 

surrounding the grant, shows that the legislature intended to grant 

the city the land for public purposes only, and that it imposed a 

public trust which restricts the city's power to alienate the land. 

The state holds submerged lands in trust for the public. The 

state, as sovereign, through its legislature, may grant fee simple 

title to submerged lands. City of Galveston v. Menard, 23 Tex. 349 

(1859). The state has, however, always had a policy to hold submerged 

lands in trust for the people. Title to submerged lands passes only 

on a very definite and express grant from the legislature. There is a 

presumption that title has not passed, and any grant is strictly 

construed against the grantee. Id.; Lorino v. Crawford Packing 

Company, 175 S.W.2d 410 (Tex. 1943);ollan v. State, 308 S.W.Zd 122 

p. 1737 
. I 

Honorable Dan W. Heard - Page 3 (MI'-489) 

(Tex. Civ. App. - Fort Worth 1957, writ ref'd n.r.e.); City of 

Galveston v. Mann, 143 S.W.2d 1028 (Tex. 1940). These rules of 

construction support the conclusion that when the legislature granted 

the land "for public purposes only," it did not intend to pass fee 

simple, unrestricted title to the city. This language is evidence of 

the state's intent to protect the public's rights by imposing a public 

trust on the land. See Weekes v. City of Galveston, B, (grant and 

later joint resolution evidenced legislature's intent to give city 

title to submerged land but also to impose public trust on that land), 

Hollan v. State, supra, (grant of "all right, title and interest of 

State of Texas... for public purposes and for the development of 

commerce only... [the navigation district] shall not at any time 

grant, convey, give or alien said lands..." held not to pass title in 

submerged land to navigation district). The state's reservation of 

the right to construct navigation improvements, docks, and wharves is 

consistent with this construction. 

We conclude that the city of Port Lavaca owns the land in 

question in trust for the public. Accordingly, it is without power to 

convey it without express authority from the state legislature. 

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

Fort Worth v. Taylor, 337 S.W.2d 160 (Tex. Civ. App. - Fort Worth 

1960), aff'd. 346 S.W.2d 792 (1961); Weekes v. City of Galveston, 

supra. 

It is suggested that article 969a-1, V.T.C.S., gives the city of 

Port Lavacs the power to convey submerged land to a private individual 

with no restrictions as to use. Article 969a-1, section 1, states: 

Any city to which the state of Texas or the 

Republic of Texas has heretofore relinquished its 

right, title and interest in or to any island, 

flats, or submerged lands be, and is hereby 

granted power and authority to lease, sell, option 

and convey all or any portion of such... submerged 

lands, and to enter upon development plans and 

contracts for any or all of these purposes with 

any person, firm, or corporation. public or 

private. The foregoing powers may be exercised at 

such time and upon such considerations and terms 

and for such periods of years as the governing 

body of such city shall determine to be proper and 

in the public interest.... 

It is our opinion, however, that the act does not confer upon 

municipalities the power to sell land held in trust for public 

purposes. Submerged land may be held by a municipality in either its 

proprietary or governmental capacity. Land held in a city's 

governmental capacity is subject to restrictions and duties not 

imposed upon land held in proprietary capacity. Weekes v. City of 

p. 1738 
Honorable Dan W. Heard - Page 4 (MW-489) 

Galveston, supra. It has always been the policy of the state not to 

grant submerged lands to individuals. Id. The city's power to convey 

the submerged lands, described in article 969a-1, is limited by this 

longstanding policy and by the words of the grant. Compton v. Waco 

Bridge Company, e. Submerged land granted for public purposes 

only cannot be conveyed to private persons for private purposes under 

the general authority provided by article 969a-1. 

The history of grants of certain submerged lands to the city of 

Corpus Christ1 supports this reading of article 969a-1. In 1919, the 

legislature conveyed certain submerged land to the city of Corpus 

Christi, using language almost identical to that used in the instant 

grant to Port Lavaca. The legislature later ratified conveyances made 

by the city to private persons. Tex. Laws 1941, ch. 40; V.T.C.S. art. 

54213. In 1961, eight years after article 969a-1 was passed, the 

legislature found it necessary to convey explicitly the right to lease 

part of the remaining submerged land without restrictions as to use. 

The city of Corpus Christ1 is hereby authorized 

and given the power and authority to lease those 

certain submerged lands described in Section 4 

herein and heretofore relinquished by the State of 

Texas to the citv of Cornus Christi. to anv 

person, firm or. corporaiion, owning lands; 

landfill or shore area adjacent to the described 

submerged lands, without restrictions as to public 

or private use thereof.... (Emphasis added). 

V.T.C.S. art. 54213-2, 51. If article 969a-1 had given the city the 

power to lease public lands for private purposes, the legislature 

would not have made this grant. State of Texas v. Aransas Dock and 

Channel Company, 365 S.W.Zd 220 (Tex. Civ. App. - San Antonio 1963, 

writ ref'd). 

Article 5421j-2 limits the power of the city to lease: 

[Alny lease shall contain a provision prohibiting 

the Lessee... from erecting or maintaining thereon 

any structure or structures, such as buildings, 

with the exceptions of yacht basins, boat slips, 

piers, dry docks, breakwaters, jetties, or the 

like. 

sec. 2. It also recognizes the public's continued right to use the 

waters. to wit: 

[Tlhe right to use the waters embraced by the 

lease shall be reserved to the public, though the 

boat slips, piers [etc.] may be limited to the 

private use of the Lessee. 

. 

p. 1739 
. . 

Honorable Dan W. Heard - Page 5 (MW-489) 

Despite the existence of article 969a-1, then, the legislature 

explicitly granted the city a restricted right to lease. In our 

opinion, article 969a-1 does not provide the kind of explicit 

authority necessary for a city to convey submerged land held for 

public purposes. Article 54213-Z does provide such explicit authority 

to the city of Corpus Christi, but no such statute has been passed for 

the benefit of the city of Port Lsvacs. A general power to sell 

property does not override restrictions in the instrument which 

conveyed the property. Compton v. Waco Bridge Company, supra. 

Thus, without express legislative authority, the city of Port 

Lavaca may not sell any of the submerged land patented to the city in 

1921. We do not address other statutes or constitutional requirements 

which might also be applicable. 

SUMMARY 

The city of Port Lsvaca cannot legally sell any 

of the submerged land patented to the city unless 

it receives the express authorization of the 

legislature, because the city holds the land in 

trust for the people of the city and for the 

public generally. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Susan Plettman 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

Susan Plettman 

p. 1740