Mr. William J. Burke

ExecutiveDirector, " 'I State Boardof Control .~ Austin, Texas '; OpinionRdr.~~-60 Re: The authorityof 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 buildingresting 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 describedunder the provisionsof Articles 665 and 666a,Vernon's ~Civil Statutes, or under any, other acts of the Legis

lature

. ~.

;,... ,~ Article 666a'provides that the 'State

Board .ofControl may lease for agriculturalor 'commercial pur$osesall public grounds 'underthe 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 Legislativeacts which might pertain to the leasing or sale by the State Board of Control of lands such as those describedabove. It is said in 38'Tex. Jur., page 836: Section 19, State of Texas,

"Power la respect to State propertyrights 18 vested In the Legislature,and the Leglslature alone may exercise the power necessary to the enjoymentand protectionof those right8 by the enactmentof statutes for that purpose." Thu8, authority for the dispo8itiODor control of State 'property

or landsmust emanate from,eltherthe Texas Constitutionor the Legislature. The Constitutionof Texas does not authorlee the State Board of Control to dispose of tidelands.

And it is sald.lnLorlno v. CrawfordPackin Comi%P 142 Tex. 51, 175 S.W. 2a 410 at page56, **Tc$x~,** - -&--- 26 by Justice Sharp, regarding legislative d&sposition of tidelandsor lands under navigablewaters:

"The rule is firmly establishedin this State that land under navigablewater8 is, withdrawn from the general provisionsof the statutes conferringupon the Laud Commissioner the right to contract for the sale or lease thereof,and passes by grant or sale only *hen **SO** expresslyprovided for by the soverelnnauthand there Is no presumptionthat the authorieedsuch 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 Galvestonv. Menard Tex. 349; DiversionLake Club v. Heath 1 b T 441; Rosboroughv. 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.2dMr. William J. Burke, Page 3 &w-60)

Since the days of the Republic, the courtsof this State have clearlyand emphatically held that leases, grants or sales of tidelandsor lands underlyingnavigablewaters are authorizedand valid only' when clearlyand expressly provided for by the sovereignauthority. We are therefore of the opinion that the authorizationto 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 periodicallyinundatedby tidal waters. 'Iftidelandsor submerged lands were to be included in Article 666a, the act would have had to describe the lands as such. We must thereforeadvise you that the State Board of Control has no authority to lease or sell the lands periodicallyinundatedby 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 periodicallyinundated 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