September 13, 1972 

Honorable Bryan Davis, Jr. Opinion No. ~-1213 

County Attorney 

Nacogdoches County Re: The authority of Stephen F. 

Box 736 Austin University to close a 

Nacogdoches, Texas 75961 street passing through its 

campus in Nacogdoches without 

the consent of the City of 

Nacogdoches. 

Dear Mr. Davis: 

In your recent letter to this office, you asked our opinion 

as to the authority of Stephen F. Austin State University to 

close a street passing through its campus in Nacogdoches without the consent of the City of Nacogdoches. 

The facts, as presented by you, are that the street over 

school property has been in use by the public in Nacogdoches 

only since about the year 1938, but that it had not existed as 

a street or road prior to that time nor had it been used by the 

public in any manner. You further stated that there had been no 

formal dedication of this school property asa public road. The 

University's appropriation of funds with which to pave the street 

was provided by the Forty-fifth Legislature, Regular Session, 

1937, General and Special'Laws of Texas, 1036. This $15,000 item 

was appropriated for the year ending August 31, 1938. At a meeting of the City Commission of Nacogdoches on February 15, 1938, 

the Commission authorized the expenditure of an amount not to exceed $3,000, "to co-o erate with the State in this important street 

extension. W (emphasis Ad,. a 

There is ample authority in the Board of Regents of the 

University to regulate and control school land and grounds, including the power to close a street crossing the campus, if such 

a closing does not contravene some paramount right in the public 

at large. (See Sections 101.11 and 101.41 of the Texas Education 

Code). 

Section 2.04, Texas Education Code, is specific authority 

for closing the street here in question. No reimbursement of 

funds is required because no title to land was ever acquired 

from the University. 

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Honorable Bryan Davis, Jr., page 2 (M-1213) 

The Texas Supreme Court stated in the case of Conle 

Qauqhters of the Republic, 106 Tex. 80, 156 S.W. 1 tn-m-d+ 

at page 200 that: 

"It is well established that the State Legislature 

is clothed with all governmental power which resides in the people . . . . . The power of the 

State in respect to its property rights is vested 

in the Legislature, and the Legislature alone can 

exercise the power necessary to the enjoyment and 

protection of those rights, by the enactment of 

statutes for that purpose." 

The Legislature authorized the expenditure of $15,000 

in 1938 to pave a street across the school property in 

Nacogdoches. There was nothing further authorized in this 

aoorooriation bill concernins that street, and nothinq could 

by&erred from it to abrog&e the power of the school trustees 

to control its use or non-use. Conley v. Daughters of the 

Republic of Texas, 151 S.W. 877 (Tex. Civ. App. 1912, error 

granted. 106 Tex. 80. 156 S.W. 197 (19131 Reversins 151 S.W. 

677 on other groundsj. (Attorney General's Opinion No. V-1254, 

1951). The Legislature further has not seen fit to prescribe 

a means by which land owned by the State could be taken by 

cities, towns, or villages of this State, or private citizens. 

The county's right to open a public road across public lands 

(Article 2351, V.C.S.) is restricted by the provisions of 

Article 6715, V.C.S., relating to public land owned and used, 

or for actual use by the State or by public State institutions 

. . for public purposes. &i&&ton vs. Pwdio ounty 

812 (Tex. Civ. App. 1911, writ ref.). (See a"180 Arki G:Zi 

of the Texas Education Code). 

The road in question was constructed principally with 

State funds some thirty-four (34) years ago on property owned 

by the present Stephen F. Austin State University, and you 

have informed this office that the campus portion of Raguet 

did not exist as a street or road prior to 1938. It is clear, 

therefore, that no public use of the street on campus could 

have existed prior to 1938 to give rise to prescriptive easement in the public. It is also certain that since 1938, the 

public could not have acquired a prescriptive easement in that 

street over the campus. (See the discussion of prescriptive 

easements and supporting authorities in 21 Tex. Jur.2d Easements 925 and 2 Tex. Jur.2d Adverse Possession 5161. 

Based upon facts presented by you and the foregoing discussion, we are of the opinion that Stephen F. Austin State 

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. 

Honorable Bryan Davis, Jr., page 3 (M-1213) 

University in Nacogdoches has the authority to close that 

portion of Raguet Street within the confines of its campus, 

and may do so without the consent of the City of Nacogdoches. 

SUMMARY 

Stephen F. Austin State University in 

Nacogdoches has the authority, without the 

consent of the City of Nacogdoches, to close 

that portion of Raguet Street constructed in 

1938 over school property and lying within the 

campus area. 

ORD C. MARTIN 

General of Texas 

Prepared by James H. Quick 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Linward Shivers 

J. Milton Richardson 

Ben Harrison 

Fisher Tyler 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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