HE NEY GENERAL 

EXAS 

AUSTIN ~~.%-ExAs 

December 16, 1948 

Hon. Bascom Giles, Commissioner 

General Land Office 

Austin, Texas Opinion No* V-741. 

Re: Inclusion of Public 

Squares shown on maps 

of City of Austin as 

Public School Land. 

Dear Sir: 

We refer to your letter in which you submit 

the following: 

"When the town of Austin was fixed 

as the capital of the State, Congress on 

January 14, 1839, directed.the townsite 

to be platted and the property to be sold 

according to said plat. Said Act has this 

provision: 'That the said agent, before 

the sale of said lots, shall set apart a 

sufficient number of the most eligible for " 

the Capitol, Arsenal, Magazine, University, 

Academy, Churches, Common Schools, Hospital, 

Penitentiary, and for all other necessary 

public buildings and purposes.1 In compliance therewith, the platas made and which 

is on file in this office shows that a number of tracts designated as 'Public Squares,' 

"Churches,' 'Hospital,* and 'Armory' and 

some others were not subdivided into lots. 

The same were not sold. 

"Since that time, some of these blocks 

have been,~ by the Legislature, sold to the 

City of Austin, and some of them have been 

used by the State on which to erect public 

buildings. 

"Among other blocks designated as 'Public Square' aa revealed by said plat is the 
Eon. Eaecom Gil$m - Page 2 (V-741) 

block lying between Trinity and Nueces and 

4th and 5th Streets. The South half of the 

block is vacant and lies along the railroad 

~~t;3!ihd 60 far aa our records show, never 

be&n‘nbs”h~~fcii.‘~any purpose and is very valuiibPe tnackage-‘property. The North half of 

said block is now occupied, partly by the 

0. Henry Museum and partly by one of the 

fire stations of the City OS Austin. 

“Another’block lies between San Antonio 

and Guadalupe and 4th and 5th Streets aiid”is, 

entirely vacmt. This is also very valuable 

business property.. 

“So far as the reoorda of this office 

ahow, the Legislature has never disposed of 

any portion of’ said two ‘blocks above described. We wish you would kindly ,investiy ~.~~ 

gate the matter and let us have your oplnion~, 

as to whether these two said tracts of land* 

or any portion thereof, belong to ,the PublicSchool .Fund and if so, can same be dlspos ed 

of as Public School Land.* 

In final analysis you-ask if blocks of land 

shown On the Land Office map of the City of Austin, as 

public squares in said city, have passed to the public 

school fund and become subject to sale as such. 

Court houses, jails, streets, and public 

squares are not mentioned in the law of 1839 to which 

you refer, but all such muses were therein authorized by 

the,language “other necessary public buildings and purposes.! - 

An Act of the 26th Legislature, First Called 

Session, 1900, recites that “for the purpose of adjust- ~, 

ing and finally settling the controversy between the 

permanent sohool fund and the State of~,Texas, growing 

out of the division of the public domain, there,i,s hereby set apart and granted to saio school, fund four million, four hundred and forty-four thousand and one bundred and ninety-five acres, or all of the unappropriated 

public domain remaining in the State of Texas 01 whatever character, and wheresoever located,,including lands 

hereafter reoovared by the State.” 
Hon. Bascom Giles - Page 3 (V-741) 

The maps and records in the General Land 

Office show that the public squares mentioned in your 

inquiry,are part of a grant titled by the Mexican 

Government to Thomas J. Chambers on June P, 1835. 

The Chambers title was held by the Supreme Court of 

Texas, in the case of Chambers v. Fisk, 22 Tex. 504, 

to be a valid grant. In 1925 the State of Texas aettied with the Chambers heirs for $20,000.00. Therefore these public squares have never been unappropriated public domain at any time since they were acquired by the State. 

These public squares were specially reserved and set aside as such as authorized by the Congress 

of the Republic of Texas as they are shown on said map, 

and recognized by the State of Texas. 

In Roberts v. Terrell, 101 Tex. 577, 110 S.W. 

733, the Supreme Court said: 

"Having once specifically reserved as 

set apartor withdrawn certain lands from 

such appropriation, it is not to be supposed 

that by subsequent legislation the Legislature intended to authorize the appropriation 

of them.unless such intention is clearly expressed; and it has therefore been held in a 

great number of cases in this State and elsewhere that general laws authorizing locations 

or entries upon and surveys of public lands, 

or public domain or vacant land do not apply 

to lands that have previously been so appropriated, reserved, set aside or withdrawn." 

See also Taylor v. Hoya,, 29 S.W. 540; Keuchler v. Wright, 40 Tex. 600, 606; State v. Delesdsnier, 

7 Tex. 108; and Ray v. State, 1~53 S.W. (2) 660. 

The fact that the Legislature has always disposed of the reserved tracts within the City of Austin 

by Special Act clearly indicates its belief that such 

tracts were not included in the Settlement Act. In this 

connection see: Acts 1911, 32nd Leg. 1st C.S., Ch. 18, 

p. 105; Acts 1913, 33rd Leg., Ch. 34, p* 66; Aots 1913, 

33rd Leg., Ch. 23, pa 43; Acts 1929, 41st Leg., Ch. 259, 

Ch. 312, p. 695; Acts 1929, 

Ch. 7; Acts 1929, 41s;7;;g,, 

No. 91, Acts 1941, 

Leg., Pa 1508; Acts 1945, 49th Leg., Ch. 44, pa 64. 
Hon. Bascom Glles - Page 4 (V-741) 

We are of the opinion that the two blocks of 

Land shown on the 1839-1840 maps of the City of Austin 

as public aquares do not belong to the Public School 

R.znd and may not be disposed of as suah, Their disposal or dedication to the Public School Fund for future 

sale is matter wholly within the province of the Legislature. 

Public squarea shown on the 1839-1840 

mans of the City of' Au&in do not belong 

to-the Public 

aold as such. 

matter wholly 

Legislature. 

&hool Fund and may not b$ 

Their diapositlon is a 

within the province of the 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

WTW:wb 

ATTORNEY GENERAL