C

Honorable

Coke B. Stevenson Governor

of TbxaS Austin, Texan
Dsar Sir: OpinionHoe. O-5011 Bet Authority

of the Governorof Texar to issuepatent to the Podor@ Gtivermwat

under facts auhnittsd. Ik am in receiptof your l*tter of Deoemkr 11, 1942, Iherein you requestthe opinionof 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

BaeocmGiles,,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 UnitedStates is requiring for militaryairport purposes

the Southmst Quarter of the Southeast quarter (S.E.*S.E.*)of Seotion27, Blook CA, Fublio Sohool.Lauds, in Reeves County -- a 40 aore traot of land. Under oondemnation prooeedirgs

entitled: 'United

States of Amerioavsr 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 simpletitle to said dssoribad

Iands,srospting

mineralsthereinand 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 unpaidpurchase 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 recordsof the GemaralLand Offloe. Lillian8. Ninkler and her husband, Sam Bnklar, haw b6eamad6 parties defendant

to the said oondsmnationproceeding

by mason of the fast that this office has been uuableto obtaina quitolaim dmd or other instrumnt which muld extinguish "ny right of reinstatawent

of the 8aid land purohass which they MY have. This officeoffsrsto 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 sntaradin the oondamnation proceedings,

thus obviating

the neoessity

for aondmnation of 6aid tract of land. Artiols 5242,Vernon's Aunotated

Civil Statutea,

provideatiat the UnitedStatesGovermwmt throughits properacentmay purahare landa within the State of Tens and held same as sites onvhichto 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 Statemay be the owner of any land dosired by the UnitedStates for any purposespecified in this title, the Guvernor may sell suoh lad to the UnitedStates,and upon gryaent

### of the purohase money therefor

into the Treasury,

tha Land &mmissiowr, upon the order of the Governor, shall.issus

a patentto the United St&es for such land in likemanner as ottsr patentsare fssued." Clearly,

the abomwquoted statute authorizes the Govercor

to sell and patent lands dosired ly ths UnitedStates for ,my of the purposss or like purposes

speoified

in Article 5242, "when the Statemay be the owner" thereof. It follows, therefore,

that whenever

the State of Texas is not the 

### owner of the laudsdesired, etc., that the Governorlaoks 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 S60 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 shallassum for the purposeof this opinionthat the condmnationproooeding~, Civil Cause lib.

154, set out in the submitted facts aa king instituted

for the land in question and other lands,

was in all thingsHonorable Coke B. Stevenson,(o-5011) Page S

legal and p?per; that the filingof plqadinga, aourt ordars and other imstruuents

therein

**was** in aocordmae with the Federallaws apperfaining thereto.

Tit10 40, Se&ion 2SSa of the United StatesCode Annotatedprovides 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 publicuse, the petitioner

may file in the cause, with the ptition or at any time Befon jud@snt, a deolaration of taking e . 0 to aoquirethe lands dosoribod in the petition,

declaring

that said landsarm themby taken for the use of the United States,

"Upon the filin of said declaration of taklag and the %&&m court to the use of the

deposi psrsonrentitled

thereto,

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

"Upon the 

### l

pplioatioa

of the parties in interest,.the

courtmay orderthat the money dspositod in the court,or any prt thereof, ba pid forthwith for or on accountof the just compsnaationto be awardedin said prooeeding. If the compensatioa finallyawardedin rasps& of said landa;or a~ parcelthoreof, shallexaaedthe amount of the money so received

by any person sntitlod, tha court shall enter judgpmnt

agaiastthe UnitedOtates 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 filingof the said declaration of taking. The only right in the State of Taxas in the land in question which rtill existsHonorable Coke B. Stevenson,(d-5011) Paga 4

afterthe fllingof 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 Seation27, Bowes Comty, Tens, having vcrstod ints United States of Azwrioa,

the State of Texacoould not be the owaw thereofand Article 5245,

V.A.C.S.,

authorizing

the Goveraoi

to rell Stats-ownad land is, therefore,

inapplicabl*. If, of eourso, tha United Statesof Amorioa, petitioner

in the aforcnasntionad cond~atioa suit,proceedstherowith to final judgment, the defendant,

LillianS. 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

grantedin Articles5404 and 5413,V.A.C.S., may noommend or order iosuanoe

of patent thereon. Itia the opinionof this doprtmrnt, thermforo, that the quo&ion sulxnittod

must b+ ansxmrod

in the negative.

Very truly

yours ATTORNEY

GESRRALOF TEXAS By s/ Cheater

E. Ollisoa Chester

E. Ollison Assistant cSO:ff:egw

dppBavBD8 OtiiniOB Camnltfr( ?y Bw.% - .,. _ ^- _ Chairman

_