C 

Honorable Coke B. Stevenson 

Governor of TbxaS 

Austin, Texan 

Dsar Sir: Opinion Hoe. O-5011 

Bet Authority of the Governor of 

Texar to issue patent to the 

Podor@ Gtivermwat under facts 

auhnittsd. 

Ik am in receipt of your l*tter of Deoemkr 11, 1942, Iherein 

you request the opinion of this daputmsnt upon the following question* 

"Is the Governor of TOXM authorized to issue 

pate* to the Federal Goverrrment under the faotr 

subnittsd?" 

The facts as contained in pour attaohed oommunication addressed 

to Honorable Baeocm Giles,,Ccmmissioner of the General Land Office and 

nitten by Clifford B. Elm; Division Head of Real Eatate Suboffice, 

Ar Dspariment, l&w W~~ico, read in eubstanoe as follownc 

The United States is requiring for military airport purposes the Southmst Quarter of the Southeast 

quarter (S.E.* S.E.*) of Seotion 27, Blook CA, 

Fublio Sohool.Lauds, in Reeves County -- a 40 aore 

traot of land. Under oondemnation prooeedirgs entitled: 'United States of Amerioa vsr 2,560 &ares of 

Land in Reeves County, Texas, State of Terns and 

Joe Rorshem et al', Civil No., 154 in the U&D&, 

pea08 Division, an order for possession was entered 

securing izeaediate~pcssession of said land for the 

Federal Governnant. Later a Declaration of Taking 

was filed therein under the terms of which the Fsdsral Gwermusnt has aoquired fee simple title to said 

dssoribad Iands, srospting minerals therein and sub 

jeot to aortain easements thereon. 

A Csrtifioate of Faots prepared by the General 

wnd Offiae shows that prior to the institution of 

the aforementioned oondemuation prooeedings that 

;heds;; ~~b~a,",~~li~~~~~~,"~:: 2h%.,, 

her obligation for unpaid purchase price and interest 

thereon; that said sale of land was marked "Forfeited" 
Honorable Cok6 3. Stovanson, (0;5011) Page 2 

bp the said Land Office on August 26, 1941, for 

non-payment of i&west and the 86m so stands on 

the records of the Gemaral Land Offloe. 

Lillian 8. Ninkler and her husband, Sam Bnklar, 

haw b6ea mad6 parties defendant to the said oondsmnation proceeding by mason of the fast that this 

office has been uuable to obtain a quitolaim dmd or 

other instrumnt which muld extinguish "ny right of 

reinstatawent of the 8aid land purohass which they 

MY have. 

This office offsrs to puro~se,said 40 aore tract 

of land from the Gwernor of Tarcrs,~aoting for the 

State of Texas under authority grantsd him in Article 

5245, V.A.C.S.; and th6 offer being mcapted, stipulations to that effect will be sntarad in the oondamnation proceedings, thus obviating the neoessity for 

aondmnation of 6aid tract of land. 

Artiols 5242, Vernon's Aunotated Civil Statutea, provideatiat 

the United States Govermwmt through its proper acent may purahare landa 

within the State of Tens and held same as sites onvhich to are& forts, 

military stations, arsenals, dock yards, etc., and the coasent of the 

Lsgislatura is hereby expressly given te any suoh purchass. 

Arti 5245, V.A.C.S., reads as follow88 

"Rhea this State may be the owner of any land dosired by the United States for any purpose specified 

in this title, the Guvernor may sell suoh lad to the 

United States, and upon gryaent of the purohase money 

therefor into the Treasury, tha Land &mmissiowr, upon 

the order of the Governor, shall.issus a patent to the 

United St&es for such land in like manner as ottsr 

patents are fssued." 

Clearly, the abomwquoted statute authorizes the Govercor to 

sell and patent lands dosired ly ths United States for ,my of the purposss 

or like purposes speoified in Article 5242, "when the State may be the owner" 

thereof. It follows, therefore, that whenever the State of Texas is not the 

owner of the lauds desired, etc., that the Governor laoks the requisitm 

authority to 8611 6~66 or to ptent same~ Unl66s the Stat6 of Tens is the 

owner of the S.E. t of the 0. 2 of S 60 ti on 27, the land in qusstion, th6 

Goveruor would haw no authority-to sol1 the said 40 aores to the Fedwal 

Goverrraent or to authorise issuanc6 of a patent 011 sulldo 

We shall assum for the purpose of this opinion that the condmnation proooeding~, Civil Cause lib. 154, set out in the submitted facts aa 

king instituted for the land in question and other lands, was in all things 
Honorable Coke B. Stevenson, (o-5011) Page S 

legal and p?per; that the filing of plqadinga, aourt ordars and other 

imstruuents therein was in aocordmae with the Federal laws apperfaining thereto. 

Tit10 40, Se&ion 2SSa of the United States Code Annotated provides in part a8 follows8 

"In any proooeding in any oourt of thm United 

stat06 . . e which has been or may Be instituted 

in the nun* of 0 e e the United States forth* aoquisitioa of any laad e e 0 for public use, the 

petitioner may file in the cause, with the ptition 

or at any time Befon jud@snt, a deolaration of 

taking e . 0 to aoquire the lands dosoribod in the 

petition, declaring that said lands arm themby 

taken for the use of the United States, 

"Upon the filin of said declaration of taklag 

and the deposi %&&m court to the use of the 

psrsonr entitled thereto, of'the auount of the estimated ocmpensatio~ stated in said dsolaration, 

"Upon the l pplioatioa of the parties in interest,.the court may order that the money dspositod 

in the court, or any prt thereof, ba pid forthwith 

for or on account of the just compsnaationto be 

awarded in said prooeeding. If the compensatioa 

finally awarded in rasps& of said landa; or a~ 

parcel thoreof, shall exaaed the amount of the money 

so received by any person sntitlod, tha court shall 

enter judgpmnt agaiast the United Otates for the 

mount of the~deficienoy." (Undersooring oura) 

A referenoa to the statamsnt of faots suhnittsd h&with will 

disclose that la said Civil Cause Ho. 164, in whiohthe S.E. 4 of the 8.B. 3 

of Smtion 27, Reeves County was oondsmned, a daolaration of taking has 

bea filod. In acoordanoe with the terms of the above quoted F~denl 

rts$uta title to the lands in question vested in the United St&es of 

Jlmerica upon tho filing of the said declaration of taking. The only 

right in the State of Taxas in the land in question which rtill exists 
Honorable Coke B. Stevenson, (d-5011) Paga 4 

after the flling of the deolaration of taking is the right to just 

oompensatioa for the land so taken. 

Title to the land in questioa, known as S.B. 1 of ths,S.B. 4 

of Seation 27, Bowes Comty, Tens, having vcrstod ints United States 

of Azwrioa, the State of Texacoould not be the owaw thereof and Article 5245, V.A.C.S., authorizing the Goveraoi to rell Stats-ownad land 

is, therefore, inapplicabl*. If, of eourso, tha United States of Amorioa, petitioner in the aforcnasntionad cond~atioa suit, proceeds therowith to final judgment, the defendant, Lillian S. Uinklw, racaiving 

just compensation for her right of reinstatement in the land in question, 

and tlw State of Tons being paid for the said land, the Governor under 

the authority granted in Articles 5404 and 5413, V.A.C.S., may noommend 

or order iosuanoe of patent thereon. 

Itia the opinion of this doprtmrnt, thermforo, that the 

quo&ion sulxnittod must b+ ansxmrod in the negative. 

Very truly yours 

ATTORNEY GESRRAL OF TEXAS 

By s/ Cheater E. Ollisoa 

Chester E. Ollison 

Assistant 

cSO:ff:egw 

dppBavBD8 OtiiniOB 

Camnltfr( ?y Bw.% - .,. _ ^ - _ 

Chairman _