December 13, 1974

The Honorable Clayton T. Garrison Executive Director Opinion No. H- 472 Texas Parks and Wildlife Department Austin, Texas 78701 Re: Authority ofParks 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 thejurisdiction ofthis Department. One of these requests involves awaterline while another request involves a road right-of-way easement. In each case, the request for the easement has been submitted by aprivate individual and the easement, ifgranted by the Commission, would befor the sole benefit ofthe individual involved. Inother words, nobenefit would result to the state by the granting of either ofthese 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 away of necessity, please answer the following question: Does the Parks and Wildlife Department have authority to grant an easement to aprivate individual over and across property under thejurisdiction ofthe Department when the easement, if granted, would accure to the solvebenefit ofthe individual requesting the easement?

pn 2153The 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 ofthe State Board for Lease established byArticle 5382d, Vernon’s Texas Civil Statutes? The Parks and Wildlife Department, under the policy direction ofthe 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 ofthe State of Texas. Canales v. Laughlin, 214S.W. 2d451, 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 inthe case of other administrative agencies

the Commission has only those powers granted by statute together withhose 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, IO2S.W. 2dI73 (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 ofan easement in land is the granting ofaninterest inland and requires the same authorization. Settegast v. Foley Bros. Dry Goods Co., 270 S.W. 1014 (Tex. Sup. 1925); Burgess v. City and County ofDallas Levee Improvement District, 155 S.W. 2d402 (Tex. Civ. App. --Eastland 1941, writ ref’d w.o.m.).

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

When we examine the Constitution and laws ofthe 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 ofarticle 5382d, V. T. C.S. The statute, generally, created Boards for lease oflands owned by any departments, agency or board ofthe state. Itis apparent that the original statute,was designed to govern the granting ofoil and gas leases on public lands. For example, section 7provides that the lease shal.1 befor aprimary 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 ofallaying 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 onthe 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 ofoil, 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 ofthe State ofTexas. Provided, that the provisions ofthis Section 13a shall not apply to lands owned by the State of Texas as a part ofthe penitentiary system nor shall this Act be construed as repealing House Bill No. 330, Acts of the 48th Legislature ofthe State ofTexas, 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 awaterline provided it acquires the approval of the Board of Leases created by article 5382d, V. T. C.S. However, we are unable tofind any authority in this statute for the granting ofan

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

easement to aprivate person to construct aroadway unless it is an appurtenance necessary to the types ofprojects listed in section 13a. Ifan easement can be granted under article 5382d, adequate consideration must be present either in money or other benefit tothe State. Otherwise it may be construed as a grant to aprivate individual in violation of sections 50, 51or 52 ofarticle 3ofthe Texas Constitution.

We donote 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 awaterline to aprivate person for adequate consideration under the terms ofarticle 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

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