TEEATTORNEY GENERAL 

OFTEXAS 

Honorable George I-i? Sheppard 

Comptroller of Fublfc Accounts 

Austin, Texas 

Dear Sir: OpfnIon No. O-3013 " '~ 

Re: Delay rental on oil and gas 

leases on land purchased or 

condemned by the State for 

highway purposes. 

This will acknowledge raeceipt of your letter of Jan; 

uary 2, 1941,, and your supplemental letter of January 11, 1941, 

in which you ask for an opinion of this department as to what 

should be done with delay rentals tendered to the State by oil 

companfes unoer the two following situations: 

1. Where a landowner has executed an oil 

ana gas lease for a term of years provfaing for 

the payment of annual delay rentals and while 

said lease is outstandfng the landowner conveys 

to the Highway Department fee sfmple tftles to a 

portfon of hfs land, 

"2, Where the 'FLHSghwag Department' condemns 

a portfon of the land covered by the lease for 

highway r4ght of way purposes. 

It is the opfnfon of thfs department that under the 

first ,situation above, where the Highway Department secures an 

outright deed in fee simple to a portIon of land covered by an 

of1 and gau lease, that the delay rentals on the portion of the 

land purchased should be paid to that department, 

A:rticle 66::jal Set, 1, Vernon's Annotated Texas 

Statutes, provides as foilo'ws: 

'Wherever the State Highway CommfssIon hasp 

acqufred or shall hereafter acquire any land by purchase, condemnatibn, or otherwise to be used as a 

right of way for any State Highway~ana thereafter 

the route of such Highway was or shall be changed 

or abandoned, and any such right of way be no longer 

needed for such HLghwag, ce needed for use of citizens as a road, the State Hlghway CommfssFon may 
Hon. Geo. H. Sheppard, page 2 O-303.3 

recommend to the Governor that such land be 

sold and that he execute a deeci conveying all the 

State's right, tftle and Interest in such land so 

acquired. Upon the recommendation of the Commission, the Governor may execute a proper deed conveying and/or excnanging'such land for different land 

belonging to the same person OP peruons. It s'hall 

be~the duty of the Commission to fix the fair and 

reasonable value of all such land and advise the 

Governor ,thereof, 'ProvQied that where such land 

is given to the State, the Governor may return the 

same bv proper deed to the person or persons from 

whom the-same Is 

the sale of such 

funds from which 

Attorney General 

this Act." 

received a ‘811 money-derived from 

land shall 'be deposited with the 

it was originally taken. The 

shall approve ali tranufers under 

Since the land inquired about was purchased with the 

funds approprfnted to the Highway Department, even though the 

delay rentals do not strictly constitute the sale prfce'of any 

land~previouslg held by that department, t'he delay rental grew 

out of the tran.sac,tion of purchase made by the'Hlghwag Department 

'insofar Ei3 the State's in.tere3t is concerned, and in view of the 

above statute, it logically should be paid to that department, 

It is the oprnion of this department, in answcrto the 

second Inquiry above wfth respect to delay rentals on land con-'- 

demned by the Highway Department for highway right of way'purposes 

under the rrght of eminent domain, tha,? neither the Highway Department nor any other branch of the State is entitled to such 

delay rental since the State would own no interest 'in the minerals, 

but only an easement with a c;'Lght to u3e the surface for highway purposes. 

In the case of Calvert, e't al v. Harrfs County, 46 

S.W, (2d) 375, decided by ,the Coup':: of Civil Appea'ls at Galveston, 

whereIn the defer&ant ln a conc:emna~!;icn suit by the county seekfng to cordarm certain of h1s 'land fo,:? roao purposes contended 

that he was enti~tlga ,to the value of ,?he mIneral under the land 

taken. The CtT;ii:'t II?ovez%ling his ~~orcter~tlonu used the following language: 

"The se'iM:led role is t&t Ln condemn.atfon 

proceedings only an easement is required and that 

such easement is a'11 tha,t ,the 1a;i requires to be 

paid for." 

This opinion is not to be cor:,strued as holding that 

under either of the two above situations that the 011 company 
Hon. Geo. H. Sheppard, page 3 O-3013 

would be authorized to develop the land taken by the Highway 

Department for oil and gas purposes by operation on the property taken. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/3.0. Mahon 

D.D. Mahon 

Assistant 

DDM:BT:wc 

APPROVH) JAN 22, 1941 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BWB Chairman