December 13, 1974 

The Honorable Clayton T. Garrison 

Executive Director 

Opinion No. H- 472 

Texas Parks and Wildlife Department 

Austin, Texas 78701 

Re: Authority of Parks and 

Wildlife Department to grant 

easements over park property. 

Dear Mr. Garrison: 

Your letter requesting our opinion states: 

At the present time, the Department has several 

pending requests for easements to cross property 

under the jurisdiction of this Department. One of 

these requests involves a waterline while another 

request involves a road right-of-way easement. In 

each case, the request for the easement has been 

submitted by a private individual and the easement, 

if granted by the Commission, would be for the sole 

benefit of the individual involved. In other words, 

no benefit would result to the state by the granting 

of either of these easements with the exception of 

any monetary consideration received for the easement itself. Assuming that the individual requesting the easement has no pre-existing legal title or 

prescriptive right and cannot establish a way of 

necessity, please answer the following question: 

Does the Parks and Wildlife Department have 

authority to grant an easement to a private individual 

over and across property under the jurisdiction of the 

Department when the easement, if granted, would 

accure to the solve benefit of the individual requesting 

the easement? 

pn 2153 
The Honorable Clayton T. Garrison page 2 (H-472) 

By a supplemental request you have also asked: 

Does the Parks and Wildlife Commission have 

authority to issue easements directly or without 

approval of the State Board for Lease established 

by Article 5382d, Vernon’s Texas Civil Statutes? 

The Parks and Wildlife Department, under the policy direction 

of the Parks and Wildlife Commission (Article 978f-3a, Vernon’s Texas 

Penal Auxiliary Laws), like every other state department, agency, or 

subdivision derives its power from the constitution and laws of the 

State of Texas. Canales v. Laughlin, 214 S. W. 2d 451, 453 (Tex. Sup. 

1948); Anderson v. Wood, 152 S. W. 2d 1084 (Tex. Sup. 1941); Attorney 

General Opinions H-445 (1974); H-392 (1974); H-374 (1974); H-51 (1973); 

and H-45 (1973). 

As in the case of other administrative agencies 

the Commission has only those powers granted by 

statute together with hose necessarily implied 

from the authority conferred or duties imposed . . . 

Nueces County Water Control and Improvement District v. Texas 

Water Rights Commission, 481 S. W. 2d 924 at 929 (Tex. Civ. App. --Austin 

1972, writ ref’d n. r. e.). 

This rule is particularly applicable to attempts to dispose of 

state-owned real property: CapIes v. Col,e, IO2 S. W. 2d I73 (Tex. Sup. 

1937); Fort Worth Cavalry Club v. Sheppard, 83 S. W. 2d 660 (Tex. Sup. 

1935); Conley v. Daughters,of the Republic, 156 S. W. 197 (Tex. Sup. 

1913). 

The granting of an easement in land is the granting of an interest 

in land and requires the same authorization. Settegast v. Foley Bros. Dry 

Goods Co., 270 S. W. 1014 (Tex. Sup. 1925); Burgess v. City and County 

of Dallas Levee Improvement District, 155 S. W. 2d 402 (Tex. Civ. App. 

--Eastland 1941, writ ref’d w. o. m.). 

pe 2154 
The Honorable Clayton T. Garrison page 3 (H-472) 

When we examine the Constitution and laws of the State for 

authority in the Parks & Wildlife Department to grant easements across 

property within its jurisdiction to private individuals for private purposes 

we find that contained in section 13a of article 5382d, V. T. C. S. The 

statute, generally, created Boards for lease of lands owned by any 

departments, agency or board of the state. It is apparent that the 

original statute,was designed to govern the granting of oil and gas leases 

on public lands. For example, section 7 provides that the lease shal.1 

be for a primary term not to exceed five years “and as long thereafter 

as oil, gas or other minerals covered by such lease is produced . . . .I’ 

However, in 1955 the Legislature added section 13a for the 

avowed purpose of allaying confusion existing as to the authority to 

grant easements on state lands (Acts 1955, 54th Leg., ch. 239, p. 670): 

The appropriate board for lease is authorized to 

grant easements on the land covered by this Act for 

irrigation canals, laterals, flumes and ditches, 

telephone, telegraph and electric power lines, and 

pipelines for the gathering or transportation of oil, 

gas, water and other fluids or substances, together 

with such devices, equipment and appurtenances as 

may be necessary. Such easements may be granted 

on such terms and conditions as the board for lease 

may deem to the best interest of the State of Texas. 

Provided, that the provisions of this Section 13a shall 

not apply to lands owned by the State of Texas as a 

part of the penitentiary system nor shall this Act be 

construed as repealing House Bill No. 330, Acts of 

the 48th Legislature of the State of Texas, Regular 

Session, 1943, Chapter 177, page 281, being Article 

6203d, Vernon’s Texas Civil Statutes, or any amendments thereto. 

In our opinion, therefore, the Department does have the authority 

to grant an easement for a waterline provided it acquires the approval of 

the Board of Leases created by article 5382d, V. T. C.S. However, we 

are unable to find any authority in this statute for the granting of an 

p. 2155 
The Honorable Clayton T. Garrison page 4 (H-472) 

easement to a private person to construct a roadway unless it is an 

appurtenance necessary to the types of projects listed in section 13a. 

If an easement can be granted under article 5382d, adequate consideration must be present either in money or other benefit to the State. 

Otherwise it may be construed as a grant to a private individual in 

violation of sections 50, 51 or 52 of article 3 of the Texas Constitution. 

We do note that under strict statutory guidelines your Department 

does have the authority to exchange real property or interests in real 

property for other land or interest therein. Vernon’s Texas Penal 

Auxiliary Laws, art. 978f-4a. 

SUMMARY 

The Parks and Wildlife Department may grant 

an easement for a waterline to a private person for 

adequate consideration under the terms of article 

5382d, V. T. C. S. That statute normally does not 

authorize an easement to be granted for a road. 

Very truly your 8, 

APPROVED: 

Opinion Committee 

lg 

p. 2156