Mr. Arnold W. Oliver, P.E. Opinion No. JM-1170 

Engineer-Director 

State Department of Highways Re: Conveyance of land from the 

and Public Transportation Texas Department of Corrections 

Dewitt C. Greer State 

Highway Building 

to the State Department of 

Highways and Public Transporta11th h Brazes tion (RQ-1951) 

Austin, Texas 78701-2483 

Dear Mr. Oliver: 

You ask about the construction of a bill requiring the 

Department of Corrections to transfer certain real property 

to the Department of Highways and and Public Transportation 

(hereinafter Highway Department). Specifically, you ask 

e whether the bill authorized the Department of Corrections to 

reserve the mineral rights in the land in question or 

whether the bill required the department to transfer title 

in fee simple. 

In 1907 the legislature adopted Senate Bill 52, which 

provides in part as follows: 

SECTION 1. CONVEYANCE OF PROPERTY. (a) 

On behalf of the state, the Texas Board of 

Mental Health and Mental Retardation and the 

Texas Department of Corrections shall sell to 

the State Department of Highways and Public 

Transportation the tracts of state-owned land 

that are described by Section 2 of this Act 

for a total amount of $120.6 million. 

(b) Before August 31, 1980, the .State 

Department of Highways and Public 

Transportation shall purchase the land for a 

total amount of $120.6 million. All the land 

that qualifies for the expenditure of 

constitutionally dedicated funds shall be 

purchased from the constitutionally dedicated 

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Mr. Arnold W. Oliver - Page 2 (JM-1170) 

portion of the state highway fund.1 The 

remainder shall be purchased from the 

statutorily dedicated portion of the state 

highway fund. 

Acts 70th Leg., 2d C.S., ch. 2, 5 1, at 5 (footnote added). 

You state that the Highway Department tendered the 

purchase price to the Board of Mental Health and Mental 

Retardation (hereinafter MHMR) and the Department of 

Corrections. MHMR delivered a deed conveying, without 

reservation, the property described in Senate Bill 52. The 

Department of Corrections, however, refused to execute a 

deed transferring title in fee simple and took the position 

that the legislature did not intend that the Department of 

Corrections transfer the mineral rights in the land in 

question. 

1. Article VIII, section l-a, Texas 

Constitution provides that revenues fromofmotEr vehicle 

registration fees and taxes on motor fuels and lubricants 

shall be used only for certain specified purposes, most of 

which have to do with financing of roads and highways. 

Article VIII, section 7-b provides: 

All revenues received from the federal 

government as reimbursement for state 

expenditures of funds that are themselves 

dedicated for acquiring rights-of-way and 

constructing, maintaining, and policing 

public roadways are also constitutionally 

dedicated and shall be used only for those 

purposes. 

Section l(b) of Senate Bill 52 restates the 

constitutional requirement that the Highway Department may 

expend funds from the sources described in those 

constitutional provisions only for purposes set out in those 

constitutional provisions. We note that section 4(b) of 

Senate Bill 52 would allow the Highway Department to lease 

back to TDC for $1 a year any portion of the land acquired 

from TDC pursuant to Senate Bill 52. The constitutionality 

of such a lease would be in question if the Highway 

Department used funds subject to section 7-a or section 7-b 

of article VIII to purchase the land from TDC. 

P. 6174 
Mr. Arnold W. Oliver - Page 3 (JM-1170) 

The legislature has exclusive control over the 

disposition ; 

mna Co,, 175 S.W.Zd 410, 414 (Tex. 1943); 

pauahters of the Renu&&.j& 156 S.W. 197, 200 (Y 

Attorney General Opinion JM-242 (1984). Senate Bill 52 

states that the Department of Corrections I'shall sell to the 

if state-owned land. See Lorino Y. Crawford 

Conlev 

Pex. 1913;; 

State Department of Highways and Public Transportation the 

tracts of state-owned land" described in the bill. The bill 

contains no language indicating that the Department of 

Corrections should retain any interest in that land. In 

grants of land, reservations of mineral interests must be by 

clear language. sharp v. Fowler, 252 S.W.Zd 153 (Tex. 

1952). In Texas, under both case law and statutory law, a 

grant of land will be construed as a grant of an estate in 

fee simple unless the conveyance is expressly limited. & 

of Stamford King 144 S.W.2d 923 (Tex. 

Eastland 1940: writ rLf#d) 

Civ. APP. - 

: Prop. Code § 5.001(a). We think 

the courts would apply an analogous rule to construction of 

a statute requiring one state agency to transfer real 

property to another state agency. Therefore, we do not 

think the Department of Corrections was authorized to 

reserve to itself the mineral estate in the land described 

in Senate Bill 52. See aeneraLly Attorney General opinion 

WW-207 (1980) (statutes governing Department of Corrections 

indicate legislative intent to regulate closely disposition 

of land under control of Department of Corrections): G 

Acts 1930, 41st Deg., 5th C.S., ch. 67, at 215 (authorizing 

Department of Corrections to sell certain property, but 

requiring that oil, gas, and mineral rights be reserved to 

state): Attorney General Opinion JW-242 (statute permitting 

board of regents "to transfer and convey" land under terms 

and conditions deemed advisable by regents allowed regents 

to convey easement or fee simple title). 

Two arguments have been raised in support of TDC's 

position. One is that the amount to be paid by the Highway 

Department for the land held by TDC is the value the 

General Land Office placed on the surface estate in that 

land. However, there is no requirement that a state agency 

receive "adequate compensationw when state property in its 

custody is transferred to the custody of another state 

agency. m Attorney General Opinion WW-1273 (1962) (land 

acquired in name of county for construction of state 

highways is state property regardless of fact that deed is 

made out to county); we a180 Tex. Const. art. I, § 17 

(requiring payment of adequate compensation when private 

property is taken for public purposes). 

p. 6175 
Mr. Arnold W. Oliver - Page 4 (JM-1170) 

The other argument is that TDC's retention of the 

mineral rights is required by the following Appropriations 

Act rider: 

No state lands shall be sold unless the 

mineral rights are retained by the state, 

unless impractical. 

General Appropriations Act, Acts 1989, 71st Leg., ch. 1263, 

art. V, 5 83; General Appropriations Act, Acts 1987, 70th 

-g., 2d C.S., ch. 78, art. V, 5 79. Regardless of whether 

TDC or the Highway Department holds title to the mineral 

rights in the land in question, those rights will be held by 

the state. Conseguently,,,that rider has no application to 

your question. 

SUMMARX 

A bill requiring the Department of 

Corrections to transfer certain real property 

to the Department of Highways and Public 

Transportation did not authorize the 

Department of Corrections to reserve to 

itself the mineral estate in that land. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

, 

P. 6176