### ATTORNEY GENERAL OFTEXAS
GREG ABBOTT

The Honorable Jerry Patterson Commissioner Texas General Land Office Post Office Box 12873 Austin, Texas 7871 l-2873 March 2,2006

Opinion No. GA-0407

Re: Whether Natural Resources Code section 33.613 violates article VII, section 4 or 5 of the Texas Constitution (RQ-0388-GA)

Dear Commissioner Patterson:
As commissioner ofthe General Land Office (the “Land Office”) and chairman ofthe School Land Board, you ask whether Natural Resources Code section 33.613, adopted by the Seventy-ninth Legislature, violates article VII, section 4or 5ofthe Texas Constitution.* See TEX.CONST. art. VII, $54,5; TEX.NAT.RES.CODE ANN.033.6 13(Vernon Supp. 2005); Act ofMay 27,2005,79th Leg., R.S., ch. 867, 9 3, sec. 33.613, 2005 Tex. Gen. Laws 2943, 2943-44. Section 33.613, you summarize, “allows alittoral property owner
. . .to obtain title to submerged land dedicated to the Permanent School Fund” byrestoring the land to its original boundaries and “without compensating” the Fund. Request Letter, supra note 1, at 1; see also TEX.NAT. RES.CODEANN. 0 33.613(b) (Vernon Supp. 2005). You suggest that section 33.6 13contravenes the requirement of article VII, sections 4 and 5that submerged land belonging to the Permanent School Fund must be “sold” and that the Fund must be compensated for such sales. Request Letter, supra note 1,at 1;see also TEX. CONST. art. VII, $5 4, 5.
The State ofTexas holds title to land covered by the Gulf ofMexico’s bays, inlets, and arms “within tidewater limits

. . .and those lands constitute public property that is held in trust for” the public’s use and benefit. Natland Corp. v. Baker’s Port, Inc., 865 S.W.2d 52, 57 (Tex. App.-Corpus Christi 1993, writ denied); accordLorino v. CrawfordPacking Co., 175 S.W.2d410, 413 (Tex. 1943); Tex. Att’y Gen. Op. No. JM-1123 (1989) at 1. In general, alittoral owne? acquires title to land added to the shoreline through accretion but loses title to land taken from the shoreline through erosion. See Brainard v. State, 12 S.W.3d 6, 17, 23 (Tex. 1999); Natland Corp., 865 S.W.2d at 57; see also Tex. Att’y Gen. Op. No. JM-1123 (1989) at l-2. “Accretion is ‘the process of increasing real estate by the gradual and imperceptible disposition by water of solid material, through the operation ofnatural causes so asto cause that to become dry land that was once before

‘See Letter from Honorable Jerry Patterson, Commissioner, Texas General Land Office, to Honorable Greg Abbott, Attorney General of Texas (Aug. 26,2005) (on file with the Opinion Committee, also available athttp://www .oag.state.tx.us) [hereinafter Request Letter].

‘A littoral owner’s land “borders an ocean, sea, or lake.” Brainardv. State, 12 S.W.3d 6,21 n.7 (Tex. 1999)The Honorable Jerry Patterson - Page 2 (GA-0407)

covered by water.“’ Brainard, 12 S.W.3d at 17 (quoting Butler v. Sadler, 399 S.W.2d 411, 421 (Tex. Civ. App.-Corpus Christi 1966, writ ref dn.r.e.)); see also Natland Corp., 865 S.W.2d at 57 (“accretion denotes the natural process ofincreasing real property by the gradual and imperceptible disposal of solid material to the shoreline”). “‘Erosion,“’ on the other hand, is the gradual and imperceptible “‘process of wearing away the land.“’ Brainard, 12 S.W.3d at 17 (quoting Coastal Indus. WaterAuth. v. York, 532 S.W.2d 949,952 (Tex. 1976)); see also Natlund Corp., 865 S.W.2d at 57 (“[elrosion is the process of wearing away the land”). The littoral landowner’s right to accretions does not extend to new accretive land if the landowner artificially influenced the accretion, however: “Man-made or artificial additions” that a landowner causes or participates in “do not change the boundaries between his land and the State’s.” Natland Corp., 865 S.W.2d at 57; accord Brainard, 12 S.W.3d at 23.
Article VII, section 2 of the Texas Constitution sets aside all submerged lands for the Permanent School Fund. See TEX.CONST. art. VII, 52;State v.Post, 169 S.W. 401,406 (Tex. Civ. App.-Austin 1913), rev ‘don other grounds, 171 S.W. 707 (Tex. 1914); Tex. Att’y Gen. Op. No. JC-0069 (1999) at 4; see also TEX.NAT.RES. CODEANN. 0 11.041(a) (Vernon 200 1) (including within the Permanent School Fund “the mineral estate in river beds and channels”; “the mineral estate in areas within tidewater limits”; and the arms, beds, and shores of the Gulf of Mexico). According to article VII, section 4,the lands “set apart” tothe Permanent School Fund “shall be sold under such regulations, at such times, and on such terms as may be prescribed by law; and the Legislature shall not have power to grant any relief to purchasers thereof.” TEX.CONST.art. VII, $4. Consistent with article VII, section 4, land belonging to the Permanent School Fund “must be sold and may be disposed ofonly by sale.” Weatherly v.Jackson, 71 S.W.2d 259,266 (Tex. 1934). “Article [VII], [slection 4

. . .says that Public School Lands ‘shall be sold.’ There must be a sale; otherwise, one collides with the constitutional prohibition ofgifts ofpublic lands.” Cobra Oil &Gas Corp. v.Sadler, 447 S.W.2d 887,898 (Tex. 1969). The state may not dispose ofPermanent School Fund land by gift. See Wheeler v. Stanolind Oil h Gas Co., 252 S.W.2d 149, 152 (Tex. 1952); accord Tex. Att’y Gen. Op. No. H-881 (1976) at 4.
Proceeds from the sale ofsubmerged lands must be used to acquire other land orinvestments for the Permanent School Fund. See TEX.CONST. art. VII, 64; see also id. 5 5(a) (“The permanent school fund consists ofall land appropriated for public schools by this constitution orthe other laws ofthis state, other properties belonging to the permanent school fund, and all revenue derived from the land or other properties.“); id. 9 5(f) (authorizing the State Board of Education to invest Permanent School Fund monies). With express narrow exceptions, article VII, section 5forbids the legislature from enacting alaw appropriating any part ofthe Permanent School Fund to any purpose other than the Fund. Id. $ 5(c). Against this constitutional backdrop, we consider the issue you raise: whether Natural Resources Code section 33.613, “which allows the restoration of Submerged [Permanent School Fund] Land and, subsequently, the granting of title to the Property Owner without” compensating the Fund, violates article VII, section 4 or 5of the Texas Constitution. Request Letter, supra note 1,at 1. Section 33.613, adopted in 2005, applies to land that (1) on December 1, 1955, was privately owned and not submerged or owned by the School Land Board; andThe Honorable Jerry Patterson - Page 3 (GA-0407)

(2) fronts on abay and not the Gulf of Mexico.
TEX.NAT. RES.CODE

ANN.633.613(a) (Vernon Supp. 2005). Section 33.613(b) appears to require littoral landowners to whom the statute applies to artificially reclaim eroded land and subsequently to hold the land in fee simple:

In accordance with land office rules, the owner of property immediately landward ofapublic beach orsubmerged land, including state mineral lands, that has been affected by coastal erosion shall restore the affected land to its original boundaries as evidenced in a residential subdivision plat forresidential lots ofone acre orless filed in the real property records ofeach county in which the affected land islocated. The owner shall use only private resources and money for restoration authorized by this section. After restoration the owner owns the restored land in fee simple, subject to: (1) the common[-]law rights ofthe public inpublic beaches *and *

. .) (2) the rights of apublic school land lessee holding alease
on the property on September 1,2005.
Id. 5 33.613(b); see also id. 0 33.613(e) (prohibiting the use of state money for land restoration). Newly adopted section 33.613(b) thus purports on its face to accomplish two things: (1) to require littoral property owners whose property has been “affected by coastal erosion” to “restore the affected land,” using only private resources and money; and (2)to convey fee simple title to restored land to the littoral landowner. Id. § 33.613(b).

You posit that section 33.6 13is unconstitutional because it allows alittoral property owner to obtain title in fee simple to submerged Permanent School Fund land through artificial reclamation that the owner causes or participates in without requiring the owner to compensate the Fund. See Memorandum Brief attached to Request Letter, supra note 1,at2. You further suggest that this grant oftitle is “completely unrelated to ‘the support ofthe public free schools’ and isthe type of ‘relief ” that article VII, section 4 specifically prohibits. Id.

We must presume that astatute isconstitutional. SeeBrooks v.Northglen Ass ‘n,141S.W.3d 158, 169 (Tex. 2004) (citing Barshop v.Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 625 (Tex. 1996)); Post, 169 S.W. at 406; see also TEX. GOV’T CODEANN. 5311.021(l) (Vemon 2005) (stating the presumption that the legislature, when enacting a statute, intends the statute to be consistent with the state constitution). We are enjoined to “avoid constitutional problems if possible.” Brooks, 141 S.W.3d at 169 (citing Barshop, 925 S.W.2d at 625). Moreover, ifastatute can be construed to bevalid, acourt has aduty to so construe it. Empire Gas & Fuel Co. v. State, 47 S.W.2d 265, 275 (Tex. 1932). And ifportions of a statute are legal while other portions are not, a court may effect the legal provisions by separating them from the illegal, but only ifthe provisions are “separable and not dependent” upon each other. Id.The Honorable Jerry Patterson - Page 4 (GA-0407)

The statute purports to convey fee simple title to restored lands without providing for compensation to the Permanent School Fund. See TEX.NAT. RES.CODE ANN. 9 33.613 (Vernon Supp. 2005). Article VII, section 4’s plain language, aswell asjudicial constructions and opinions of this office, direct that a statute cannot convey fee simple title to Permanent School Fund land to littoral property owners without requiring compensation to the Fund. TEX.CONST. art. VII, 04. Attorney General Opinion H-88 1,for example, considers the constitutionality ofa statute “granting the City of Corpus Christi submerged lands in Corpus Christi Bay to use as apublic beach without compensating” the Permanent School Fund. Tex. Att’y Gen. Op. No. H-88 1(1976) at 1. Under the statute, the legislature granted the City fee simple title to the submerged lands so long as the City used the land for a public beach. Id. at 3 (quoting Act of May 24, 1971,62d Leg., R.S., ch. 883, 1971 Tex. Gen. Laws 2708,2708-l 0). Finding that the land had been dedicated to the Permanent School Fund, the opinion concluded that the legislature could not constitutionally grant the tract to the City “without requiring compensation to” the Fund. Id. at 6. Attorney General Opinion JC-0069 similarly construes aconveyance of submerged land pursuant to former article 6837, Revised Civil Statutes, which ceded “[tlhe right to the use and control

. . .of so much of the land and sea bottom below high tide as” a county or municipality bordering on the Gulf of Mexico considers necessary to build seawalls, breakwaters, levees, and drainways. Tex. Att’y Gen. Op. No. JC-0069 (1999) at 2 (citing former article 6837 of the Revised Civil Statutes).3 The opinion concludes that, consistently with article VII, section 4,the land could not have been conveyed without compensation to the Permanent School Fund. See id. at 6; cf: Empire Gas & Fuel Co., 47 S.W.2d at 275 (determining that astatute conveying title to 15/l 6ofallminerals inpublic school lands to the owner ofthe soil violated article VII, section 4); Tex. Att’y Gen. Op. No. JM- 1123 (1989) at4 (concluding that a littoral property owner who has lost to the state title to a portion of his tract through submergence may not regain title ifthe land is subsequently artificially restored).

In addition, the requirement that littoral landowners restore eroded coastal land with private
resources and “money forrestoration authorized by” section 33.6 13isinseparable from the bestowal offee simple title on the littoral landowner who restored the land. We do not believe the legislature intended to require landowners to restore eroded land without the promise of regaining fee simple title.

For this reason, we believe section 33.613(b) in its entirety contravenes article VII, section 4 of the Texas Constitution. See Empire Gas h Fuel Co., 47 S.W.2d at 275 (stating that a court may not effect legal statutory provisions that are inseparable from illegal provisions). Given our conclusion under article VII, section 4,we need not consider the constitutionality of section 33.6 13 under article VII, section 5.

You also ask whether the Land Office constitutionally may adopt rules concerning the artificial reclamation of land as required by section 33.613(d). See Request Letter, supra note 1,

3The substance of former article 6837 ofthe Revised Civil Statutes has been codified as section 42 1.005 ofthe Local Government Code. See TEX.Lot. GOV’~CODEANN. 5421.005 (Vernon Supp. 2005); Act ofMay 10,1999,76th Leg., R.S., ch. 227, $5 16, 28, 1999 Tex. Gen. Laws 721, 1025-26, 1056 (adding section 421.005 to the Local Government Code and repealing article 6837, Revised Civil Statutes).The Honorable Jerry Patterson - Page 5 (GA-0407)

at 1. Section 33.613(d) requires the Land Office to have adopted reasonable rules to regulate land restorationunder section 33.613 by December 1,2005. See TEX.NAT.RES.CODE ANN.033.613(d) (Vernon Supp. 2005). In our opinion, the statutory rulemaking requirement wholly depends on the legality ofsubsection (b), which purports to convey fee simple title to littoral landowners who restore eroded, submerged land without compensation to the Permanent School Fund. Accordingly, the Land Office may not adopt rules as section 33.613(d) purports to require. See Empire Gas & Fuel Co., 47 S.W.2d at 275 (stating that acourt may not effect statutory provisions that are inseparable from unconstitutional statutory provisions).The Honorable Jerry Patterson - Page 6 (GA-0407)

SUMMARY
Natural Resources Code section 33.613, which allows a littoral property owner to artificially restore submerged land that has been lost through erosion and is dedicated to the Permanent School Fund and thereby receive title to the land in fee simple without compensating the Fund, violates article VII, section 4 of the Texas Constitution. Very truly yours,

Attorney &era1 of Texas

BARRY R. MCBEE First Assistant Attorney General

ELLEN L. WITT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee