**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN** 
**GROVERSELLERS ATTORNEY**  **GENERAL**



### Honorsbli H. Z. raubfoa **Xmlrtsnt** 

### Fxeoutive **3eorstary** CSm, Fish **end oyster**  **Comn,lsrion AWti5,**  **lbXS8**

**rasr sir:** 

r ofNovember 7, 194s.

xe are ,attaohing **a** e type or mlmagel3sntlioense .~

Of the prOXfiPityOf th0 open sOa Fslo >lnto County, ue would eppreoiate 5 nt your earllost 00n~enienoe.~
The l3r8x08**River** Con~rvotfon and Reobmation Di8- triot is (1Stete A@S5Oy areated end employed **by** the State, wreuant to the provlulonr of srotion 39, Artlole 16, of the State corietitution,to ooneerve and .&velop the wters 0r the **Erazos River**  **and tba**  land 

### sfieoted Wweb:. It ir 15 the nature Of I quasi-publio 

### oorporatlon, and bein@ a component part ofRonorable 11..E. Faubion - page 2

thestate, it derives all of its pokers and.authority by expreos delegation from the state. iLike similar subordinato gtate Agencies, it has only the powe?s andduties which are clearly set forth anddefined by the Constitution andStatutes of the state. v. A*c. s.; Titl% 128, oh. 8, special Acts, page 536,

Acts 1929, 41St Legislature, 26 C. S.;Sp. I,.. page 22, ch. 13, as anended; 37 Tex. 

### Jur. 065, LowerColorado River Authority vs. KcGravr, 125 Tax. 268; Crouoh vs. Posey, 69S. W, 1001; 37Tax. Jur. 950, Sec. 81.

Although weare well aware of the worthiness of the ,~
,, oause In this case, there is nothing in the 1anSuage of the

Act establishing the Erazos River Conservation endReclamation Distriot whioh either expressly or by olear inp&ication authorizes the proposed contract here. Wha.teverauthority the District has to dispose of or burden Its property is.derived from Section 12 of Tit10 128, chap. 8, vol. 21, Special Acts, pp536-546, V. A*d. S., as amended, which is set out in the following language:

“Sec. 12. Nothing in this 

### Act shall be oonstrued as authorizing she Distriot, and it shall, not be authorized to mortgage, or otherwise enounber any of its property or’ any kind, real~op;ecr sonal or mixed, or any interest therein, or quire any such property or interest subjeot.to a mortgage or oonditional sale, provided that this section shall not be construed ss prevonting the pledging of the revenue of the Distriot as herein authorized. Nothing in this AOtshall be construed

‘as authorizing the sale, release or othor d’isposition of sny such property or Interest by the Dlstriot, or anyreceiver of any of the District property, 

### .or ,throug,hany court proceedings, or otherwise; provided, however, that tho District maysell.for .oash any such property 

### or interest in 

### onag’grogate value not exoeeding the 8umof OneRundrod Thousand (~lOO,OOO.OO)DOllaxS in any one year if the Board by affirmative vote of clevon of its membersshall have determined that the property or interest is not necessary to tho business of the District, and shallRonorable 11.R. Faubion- page 3

.

have approved the termsof any such sale it being the intention:of this Act that excipt by sole 06 in this section oxppre3nly auti-iorlzed, no such property or interest shall ever come into the ovtilership or oontrol, directly or indireotly'i of anyperson, firm or corporation other than a public authority created under the laws of the. state of Texas. All property of the District

:ii.:;i-:_ y;.:~'; 5~. :.:_ ; shall be at all tines exempted from forced sale,

andnothing in this Act contained shall authorize the sale of any of the property of the District under anyjudgment rendered in any suit end such sales are hereby prohibited andforbidden.* (Xm~hasis added) 4s seenfrom the underlined portion of the above Sootion 12, t~heDistrict is expressly limited andcnnnot 'encumbers its property. TGthresyoct to the nature of IourDroposed Contract, otherjurisdictionfi,. the greet weight of authority In and also that vihich we,believe is ;resently the law in the State of Texas, is adequately SfrJtedby the Galveston Court of civil Appeals in the case OfAnderson et us v. [Iipson, 144 2. :i'. 2nd 948 (&940), .in :be rOuOme language:
.:.,.:,::~: ,:~> :~. "The rule laid downby the text writers

and'supsorted by the great weight of authority frox other juris&iotions is that the right of one person to hunt onpremises owned and in the posceseion of another maybe acquired by a ernnt or lease of hunting rriviloges, and that vhen so granted it is not amere license but Is 811 interest in tho real estate in the'nature of an incorporeal hereditament, and that, as suoh, it is within the statute of frauds andrequiros a writing for its oreatlon." AlSO seo C. J. S. 4; 32 A. L. R. 1527; 17 A?. JUT. 9.57.. 

# I. z-f%

2onorable B. E. Faubion - pace 4

As it is our belief thatthe instrument YOU ;ropose to execute oomeswithin the determination .of the Soregoing authorities, suah instrument viould then amount toanenoumbrance uPonthe property .oSthe District, whloh 1sexpressly forbidden by the 1onpuac.e of the statute, supre. 42G.J. s. 549; BouvierlS LawDiotionary, Vol. 2, p. 1530; wordsandphrases, Vol. 20, p. 605.

Further, in a former opinion of this department No. O-1287, dated Xay 15, 1940, addressed to the Honorable Frank I).Quinn, it was held that the Eraxos River Gonservstion and jgeolamation District did not have the power to convey by deed Pdeterminable fee interest in its lands to another state agency because.the District hadnopov,er sufficiently speaific to dispose of Its property in such manner. Although the deed therein recited a consideration of Yen Dollzrs and other eoodandvaluable coilsideration, 11no actual cash consideration ~8sto pass between the parties.' TheDistriot aid not have :hepower to d:spose of its property by &ift under those provisions of Section 12of the Act, supra, readins as follors: ".

. . . it being the intention.of this Act that exaopt by sale as In this section expressly authorized, no such property or interest shall, ever come into the ownership or control, directly or indirectly, of anyperson, firm or oorporatlon other than a public authority created under the laws of the state of Texas." Theopinion then aonoluded that those provisions QfSection 12regarding the value oSproperty which maybe *Oldfor oash in 'anyone'year by an eleven membervote of thO.Distrlct provided the property is not ncccssery to the ~;$~%a of the District applied only to sslcs endnot to I

.

AS your proposed'controct here is not 6 sale within theabove statutory provisions, andbeoause it would resultponorebla H. ELFaubion - page 5

in en encumbrence upon the DistrfLctsC lends, it is not authorized ~bythe provisions of Section 12df the'Act, supra, endwetherefore answer your question in the negative. Very truly yours A’JT.IYO~XY G3!.ERALOFTEXAS