HE NEY GENERAL EXAS

AUSTIN ~~.%-ExAs

December 16, 1948

Hon. Bascom Giles, Commissioner GeneralLand Office Austin, Texas OpinionNo* V-741.
Re: Inclusionof Public Squares shown onmaps 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 Austinwas fixed as the capital of the State, Congress on January 14, 1839, directed.thetownsite to be platted and the property tobe sold according to said plat. Said Act has this provision: 'That the said agent,before the sale of said lots, shall set apart a sufficientnumber of themost eligible for " the Capitol,Arsenal, Magazine,University, Academy, Churches, Common Schools,Hospital, Penitentiary,and for all othernecessary public buildings and purposes.1 In compliance therewith, the platas made and which is on file in this office shows that a number of tractsdesignatedas 'PublicSquares,' "Churches,' 'Hospital,*and 'Armory'and some otherswere not subdivided into lots. The same were not sold. "Since that time, some of theseblocks have been,~

by the Legislature, sold to the City of Austin, and some of themhave been used by the State on which to erectpublic buildings. "Amongotherblocks designated as 'Public Square' aa revealedby said plat is theEon. 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 OSAustin.

“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. Wewish 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 museswere 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)

Themaps and records in the GeneralLand Office show that the public squaresmentioned in your inquiry,arepart of a grant titledby theMexican 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 aettiedwith the Chambersheirs for $20,000.00. Therefore these public squareshave never been unappropriatedpublic domain at any time since theywere acquiredby the State.

These public squareswere speciallyreserved and set aside as such as authorizedby the Congress of the Republic of Texas as they are shown on saidmap, and recognizedby the State of Texas.

In Robertsv. Terrell, 101 Tex. 577, 110 S.W. 733, the Supreme Court said:

"Having once specificallyreserved as set apartor withdrawn certain lands from such appropriation,it isnot to be supposed that by subsequent legislationthe Legislature intended to authorize the appropriation of them.unless such intention is clearlyexpressed; and it has thereforebeen held in a great number of cases in this State and elsewhere that general laws authorizinglocations or entriesupon and surveys of public lands, or public domain or vacant land do not apply to lands thathave previouslybeen so appropriated, reserved, set aside orwithdrawn."
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 Legislaturehas always disposed of the reserved tractswithin the City ofAustin by SpecialAct clearly indicates its belief that such tractswere not included in the SettlementAct. In this connection see: Acts 1911, 32nd Leg. 1st C.S., Ch. 18, p. 105; Acts 1913, 33rdLeg., 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