Mr. William J. Burke 

Executive Director, " 'I 

State Boardof Control .~ 

Austin, Texas '; 

Opinion Rdr.~~-60 

Re: The authority of the State 

., 

Board of Co&sol to sell 

or lease State owned tidelands in Clear Creek, Harris 

County.; Texas, for the purpose of constructing piers, 

boat docks, fishing cabins, 

residences, etc. 

Dear Mr. Burke: 

., 

In a: recent opinion request 

effect, state the fc~l'lowlng: :~ 

of this office, you, in 

. 

In the 1930's Mr. James~ H. Charleston 'built a fishing 

wharf and pier consisting,,@ a;vood frame building resting on 

wooden piles, on submerged ,lands In Clear Creek,nesr its 

mouth in Galveston Bay, Harris County, Texas'. This land is 

regarded as State land. 

You then ask whether the State Board of Control has 

authority to execute Iea~s$s. or -authority to sell such lands 

as above described under the provisionsof Articles 665 and 

666a, Vernon's ~Civil Statutes, or under any, other acts of 

the Leg is lature . ~. ;,... ,~ 

Article 666a'provides that the 'State Board .of Control 

may lease for agricultural or 'commercial pur$oses all public 

grounds 'under the cha'rge and contro.1 of the State Board of 

Control. 

Article 665 provides that the State Board of Control 

shall have charge and control of all public buildings, grounds, 
Mr. William J. Burke, Page 2 (~~-60) 

and property of the State. 

A search of Vernon'8 Clvll Statute8 fail8 to reveal 

any other Legislative acts which might pertain to the leasing 

or sale by the State Board of Control of lands such as those 

described above. 

It is said in 38'Tex. Jur., 

page 836: 

Section 19, State of Texas, 

"Power la respect to State property rights 

18 vested In the Legislature, and the Leglslature alone may exercise the power necessary 

to the enjoyment and protection of those right8 

by the enactment of statutes for that purpose." 

Thu8, authority for the dispo8itiOD or control of 

State 'property or lands must emanate from,elther the Texas 

Constitution or the Legislature. The Constitution of Texas 

does not authorlee the State Board of Control to dispose of 

tidelands. And it is sald.ln Lorlno v. Crawford Packin Comi%P 

142 Tex. 51, 175 S.W. 2a 410 at page56, - Tc$x~, -&--- 

26 by Justice Sharp, regarding legislative d&sposition 

of tidelands or lands under navigable waters: 

"The rule is firmly established in this 

State that land under navigable water8 is, 

withdrawn from the general provisions of the 

statutes conferring upon the Laud Commissioner 

the right to contract for the sale or lease 

thereof, and passes by grant or sale only *hen 

SO expressly provided for by the soverelnn authand there Is no presumption that the 

authorieed such grant or sale."(Emphasis 

See City of Galveston'v. Mann, 135 Tex. 319, 143 S.W. 

2d 1028; State v. BradforT 121 Tex. 515, 50 S.W. 2d 1065; 

Landry v. BobisLm Tex: 295, 219 S.W. 819; DeMeritt v. 

Robison, 102 Tex. 358, 116 S.W. 796; Hynes v. Packard, 92- 

Tex.44, 45 s.W. 562; City of Galveston v. Menard Tex. 

349; Diversion Lake Club v. Heath 1 b T 

441; Rosborough v. PI&on, 12 Tex: Cfv. izp. 

12 gA2:.W. 2d 

1:; 34 S.W. 

;/';; Heard v. Town of Refuglo, 129 Tex. 349, 103'S.W. 2d 
Mr. William J. Burke, Page 3 &w-60) 

Since the days of the Republic, the courtsof this 

State have clearly and emphatically held that leases, grants 

or sales of tidelands or lands underlying navigable waters 

are authorized and valid only' when clearly and expressly 

provided for by the sovereign authority. We are therefore 

of the opinion that the authorization to the State Board 

of Control to lease public grounds belonging to the State 

of Texas under Article 666a is not such a clear and express authorization by the sovexgn as will permit the 

State Board of Control to lease or sell lands covered or 

periodically inundated by tidal waters. 'If tidelands or 

submerged lands were to be included in Article 666a, the 

act would have had to describe the lands as such. 

We must therefore advise you that the State Board 

of Control has no authority to lease or sell the lands 

periodically inundated by tidal waters in Clear Creek, 

Harris County, Texas, referred to in your opinion request. 

SUMMFLRY 

The State Board of Control has no authority 

to lease or sell lands periodically inundated 

by tidal waters in Clear Creek, Harris County, 

Texas. 

Yours, very truly, 

WILL WILSON 

~Attorney General of Texas 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler 

Chairman 

JMR:bk