September 13,1972

Honorable Bryan Davis,Jr. Opinion No. ~-1213 County Attorney Nacogdoches County Re: The authorityof Stephen F. Box 736 Austin University to close a Nacogdoches,Texas 75961 streetpassing through its campus in Nacogdocheswithout the consent of the City of Nacogdoches.
Dear Mr. Davis:
In your recent letter to this office,you asked our opinion as to the authorityof Stephen F. Austin StateUniversity to close a streetpassing through its campus in Nacogdocheswithout the consent of theCity of Nacogdoches. The facts, as presentedby you, are that the street over school property has been in use by the public in Nacogdoches only since about theyear 1938, but that it had not existed as a street or roadprior to that time nor had it been used by the public in any manner. You further stated that there had been no formal dedicationof this school property asa public road. The University's appropriationof funds with which to pave the street was provided by the Forty-fifth Legislature,Regular Session, 1937, General and Special'Lawsof Texas, 1036. This $15,000 item was appropriated for theyear ending August 31, 1938. At a meeting of the City Commissionof Nacogdoches on February 15, 1938, the Commission authorizedthe expenditure of an amount not to exceed $3,000, "to co-o erate with the State in this important street extension.W (emphasisa

Ad,. There is ample authority in the Board of Regents of the University to regulateand 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. (SeeSections 101.11 and 101.41of the Texas Education Code). Section 2.04,Texas Education Code, is specificauthority for closing the streethere in question. No reimbursementof funds is requiredbecause no title to landwas ever acquired from the University. -5953-HonorableBryan 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. 1tn-m-d+ at page 200 that:
"It is well established that the State Legislature is clothedwith all governmentalpowerwhich resides in the people

. . . . . The power of the State in respect to its property rights is vested in the Legislature, and the Legislaturealone 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 schoolproperty in Nacogdoches. There was nothing further authorized in this aoorooriationbill concernins that street, and nothinq could school trustees by&erred from it to abrog&e the power of the 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 (19131Reversins 151 S.W. 677 on other groundsj. (AttorneyGeneral'sOpinion No. V-1254, 1951). The Legislature furtherhas 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 (Article2351,V.C.S.) is restrictedby 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.). (Seea"180 Arki G:Zi of the Texas Education Code). The road in questionwas constructedprincipally with State funds some thirty-four (34)years ago on property owned by the present Stephen F. Austin StateUniversity, and you have informed this office that the campusportion of Raguet did not exist as a street or roadprior to 1938. It is clear, therefore, that no public use of the street on campus could have existedprior 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 prescriptiveeasement in that street over the campus. (Seethe discussionof prescriptive easements and supporting authorities in 21 Tex. Jur.2d Easements 925 and 2 Tex. Jur.2dAdverse Possession 5161. Based upon facts presentedby you and the foregoingdiscussion,we are of the opinion that StephenF. Austin State -5954-.

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

University in Nacogdocheshas the authority to close that portion of Raguet Streetwithin the confines of its campus, andmay do so without the consent of the City of Nacogdoches.

SUMMARY
Stephen F. Austin StateUniversity in Nacogdocheshas 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 ExecutiveAssistant NOLA WHITE First Assistant -5955- ’