# 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 HonorableDanW. Heard CriminalDistrictAttorney CalhounCounty P. 0. Box 1001 Port Lavaca, Texas 77979

Dear Mr. Heard: OpinionNo.MW-489

I&: Status of property conveyed to city of Port Lavaca by state of Texas

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An Equal Opportunity1 Affirmative Action Employer In 1921, the TexasLegislaturegranted 75 acres of submerged land to the city of Port Lavaca. 1921Tex. 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... ishereby granted to said city forpublic purposes only... (Emphasisadded).
Section2 of the grantgives the city thepower to erectbuildingsand other improvements for public purposes, to rent the buildings for public purposes, and to build seawallsand 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 stateor governmentpurposes.
The city now wants to convey part of this land to a certain individualas part of the settlementof a disputebetween 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 remainderof the fee in the franchise area of Bauer (ChannelDock 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 individualwould 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 You advise that Bauer, Inc., is a channel and dock company chartered by the state in 1959 under now-repealed statutes which grantedxhannel and dock companies certain rights to use and profit from submerged lands in exchange for improving them for navigation and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 therewas no legislativeaction at that time relating to title or possession of these lands.

p. 1736HonorableDan W. Heard - Page 2 W-489)

Your questionsare as follows:

1. Can the city of Port Lavaca legally sell any of the land patented to the city by the 1921 LegislativeAct?

2. Are there any statutes,legislativeact, laws,etc., that repealany sectionof the special legislationof 1921?

3. Is the city patented area still for publicpurposes 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 individualor corporation? Municipal propertyheld in a governmental capacity, i.e., for a public use, cannot be sold without legislative authoritybut must be devoted to the uses and purposes forwhich it was intended. Property possessedand used by municipal corporationsas public agenciesof 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, "MunicipalCorporations"5928.37,28.38,at 77, 83 (3rded. 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 thepower to sell landburdenedwith
a public trust. That power must be granted specifically. Comptonv. Waco Bridge Company, 62 Tex. 715 (1883).

The legislaturegranted "[a]11 rights, title and interest of the State to all the land... to [the] city for public purposes only." (Emphasisadded). This language,interpretedin 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 trustwhich restrictsthe city'spower 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 statehas, however,alwayshad a policy tohold submerged lands in trust for the people. Title to submerged lands passes only on a very definiteand expressgrant 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

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HonorableDan 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 constructionsupport the conclusion thatwhen the legislaturegranted 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 thepublic's rightsby imposinga public trust on the land. SeeWeekesv. City of Galveston,B, (grantand later joint resolution evidenced legislature's intent to give city title to submerged landbut also to imposepublic 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 constructnavigation improvements,docks, and wharves is consistentwith this construction.

We conclude that the city of Port Lavaca owns the land in question in trust for thepublic. Accordingly, it iswithout 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 thepower to convey submerged land to a private individual with no restrictionsas touse. 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 grantedpower 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 foregoingpowersmay be exercisedat such time and upon such considerationsand terms and for such periods of years as the governing body of such city shalldetermine tobe proper and in thepublic 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 landmay 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

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Galveston,supra. It has always been the policy of the state not to grant submerged lands to individuals. Id. The city'spower to convey the submerged lands, described in article 969a-1, is limited by this longstandingpolicy and by the words of the grant. Compton v. Waco Bridge Company, e. Submerged land granted for public purposes only cannotbe conveyed to privatepersons for privatepurposes under the generalauthorityprovidedby article 969a-1.

The history of grants of certain submerged lands to the city of Corpus Christ1 supports this readingof 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 legislaturelater ratified conveyancesmade by the city toprivatepersons. Tex. Laws 1941, ch. 40; V.T.C.S. art. 54213. In 1961, eight years after article 969a-1 was passed, the legislaturefound itnecessary to conveyexplicitly the right to lease part of the remainingsubmerged landwithout restrictionsas touse.

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 andheretoforerelinquishedby 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 submergedlands,without restrictionsas topublic
or privateuse thereof.... (Emphasisadded).

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 thepower of the city to lease: [Alny lease shall contain a provisionprohibiting the Lessee... from erectingormaintaining 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. towit:

[Tlhe right to use the waters embraced by the lease shallbe reserved to the public, though the boat slips, piers [etc.] may be limited to the privateuse of the Lessee. .

p. 1739. . HonorableDan 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 publicpurposes. Article 54213-Zdoesprovide such explicitauthority to the city of CorpusChristi,but no such statutehasbeen 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 theproperty. Comptonv. Waco Bridge Company,supra. Thus, without express legislative authority, the city of Port Lavacamay not sell any of the submerged land patented to the city in 1921. We do not address other statutesor constitutionalrequirements which might alsobe 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 AttorneyGeneral of Texas

JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral

RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral
Preparedby Susan Plettman AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa JimMoellinger SusanPlettman

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