Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
March la..1985
JIM MAlTOX
Attorney General
Supreme Court Bullding Mr. CharlesD. Travis Opinionlo. Jn-299
P. 0. Box US43 gxecutivcDirecto:c
*uettn. TX. 7S711.2540 Texas Parhs 6 Ulld:llfe Be: Constltutlonalityof article
5t214752m Department 7467a. V.T.C.8.. which authorizes
Telex 010187Cl3S7
Telecopier 512M75-02SS
4200 Smith School Iload specifiedmunicipalitiesto acquire
Austin,Texas 7w44 state streambedsby annexation
714 Jackson, Suite 700 Dear Wr. Travis:
D*llm. TX. 7S2024.506
214miaw
You questionthe coustitutiouality of an uucodifiedstatutewhich
authorlees certarluqualifying ~nlclpalltles to acquire, through
4824 Albrtl Ave.. Suite loo anuexatiousubicb are effected pursuant to other authority,the beds
El PMO. TX. 7990527S3 of state-ownedv~.tercourses.Acts 1925, 39th Leg., ch. 155. at 366
OlB3454 (V.T.C.S.art. 7467a). In particular,you express wncern about a
municipality'samnexetion of only the beds of watercourses for the
4W1 Texas, Salt. 7W sole purpose of assumingovuersbip of the,beds from the state. Your
,u*on. TX. 770024111 request results f'rouanticipationof conflictsbetveen the Parks and
/1- WildlifeDepartmeatand municlpalltlesvith regard to the department's
responsibilitytc uauage and protect the sand and gravel In state-
ouned streau and riverbeds.
SW Broadway, Suita 312
Lubbock, TX. 7mo1-3479
Sw7476231) Article 7467~ providesas follows:
Section 1. The State of Texas hereby relin-
4303 N. Tenth. Wt. S
MCAml. TX. 7SSol-lSS3
quishes,quit claims and grautsunto all incorpor-
512MS2.4547 ated cJ,tiesand towns that have a population of
forty thousandinhabitants,or more, accordingto
the 1923 census,all of the beds and channels,and
200 Main Plaza. suit* 400 alao al.1of the abandoned beds and channels. of
Sen Antonlo, TX. 182052797
512’2254101
all rlvc:rs,streams aud other chauuels thet are
nou or that my hereafterbe vithin the preseutor
futurecorporate llmlta of such cities or touns,
An Equal OppWtunltYl In so Tar as the beds and channels, and such
Afflrmatlw Actlon Em~Ioyer abandoned channels, of such rivers, streams and
other channels uay be owoed or claimad as the
propertyof said State.
Sec. 2. The fact that such incorporatedcities
and tams through which rivers and streams may
flow end channels may exist may be hindered in
their civic iuprweuenta by reasou of the State's
claim of property rights therein. creates an
emergeucg, and an imperative public necessity
p. 1344
Mr. CharlesD. Travis - Psge 2 (315299)
exists that the constitutionalrule requiring
bills to be read upou three separatedays In each
Rouse be suspended and that this Act be placed
upon its third reading and fiual passage aud take
effect from aud after its passage. and it IS SO
enacted. (Enphasisadded).
In addition to a general cmstftutional challenge,you suggest that
the first underscoredclauea, in section 1. as a grant in advance of
state-ownedproperty,is cor.atitutiouallysuspect insofar as It sllows
the specifiedmmlclpalitle~~,,rather then the state, to determinethe
amount of state propertyth#)tthe uuniclpalitieewill "acqu1re.s
As a preliminarymatter, we euphaslaethat article 7467a applies
only to "incorporatedcltiecland tovns that have a populationof forty
thousand inhabitsnte.or uore. according to the 1920 census. . . ."
V.T.C.S. art. 7467a. Il. :?orexample, because of this requirement,
the Texas Supreue Court ir.Waufrais v. State, 180 S.W.Zd 144, 146
(Tex. 1944). held that art!.c:le7467a does not extend to the city of
Austin because the city lathed the requleitepopulationas of the 1920
ceueus. Consequently,the Imope of the act Is limited.
Several courts have dlscueeedbriefly the general epplicablllty
of article 7467a without questioning Its validity. See, e.g.,
Coastal IndustrialWater Auc‘horlt v. York, 532 S.W.Zd 949. 951 (Tex.
1976); Waufrais v. State, '--146;
,180S.W. State v. Bradford, 50
S.W.Zd 1065, 1078 (Tex. 1.932);Bogus v. Glover. 302 S.W.Zd 757,
761-762 (Tex. Civ. App. - Wsco 1957. writ ref'd n.r.e.). Wane of the
reported cases, however, vaa called upon to directly address the
couetitutionality of the act.. War have any reported cases discussed
the nature and extent of tie interestrelinquishedby article 7467a.
Consequently; analysis of your request requires consideration of
uumeruuebasic principlesapplicableto submergedlaude.
Texas holds its submecned lands as state property In trust for
the public. Tar. Conet. art: XVI, 159(a); Carritherev. Ter-r Beach
c-llity 1mPrw-nt ~)B"II--665 S.W.Zd 772 (Tex. 1983), cert.
ii=:-
denied, 104 8.Ct. 422; Hea.-.__ i&
---- af
-- Refue,
~--- 103 S.W.Zd 728 7 Tex.
m State v. Bradford.56B.W.2d . 1932). State ownership
axtende- -navigableand to certain mm-navigable vater-
courses. San Antonio River Authorityv. Lewis, 363 S.W.Zd 444, 447
(Tex. 1963);Beard v. Tovn Df Refuglo.103 S.W.Zd, et 730-3l;.seeTex.
Water Code 121.001(3). Subject to conetitutional limlte, the wet to
control the dieuositionof ;,tateproperty resides in the legislature.
See Conlev v. Dauehters of the keuubli& 156 S.W. 197 (Tex. 1913).
reh'g denied. 157 S.W. 937:-AttornevGentera1 Opinion WW-62 (1979);see
alan
c .__ Arcnmr
-----..iy ~&&al 6&tht W-356 (1969) (certain reappropriation6
ofarouerty may require constitutionalauendment). The legislature
may~reiinquisb~titleto the land beneath public waterways. State v.
Bradford.50 S.W.Zd, at 107:B; Moore v. Asbbrook, 197 S.W.Zd 516, 518
p. 1345
3
Hr. CharlesD. Travis - Page!3 (JM-299)
(Tex. Civ. App. - San Antonio 1946, writ ref’d); Attorney General
OpinionIN-489 (1982).
Because submergedlands are impressedwith a public trust. grants
vhicb Include the beds of public watewaye must be express and are
strictlyconstruedagainst grantees. State v. Bradford,50 S.W.Zd, at
1075; Beard v. Town of Refl$i&, 103 S.W.Zd. at 732; Attorney General
OpinionsMW-489 (1982);H-E,81(1976). The languageof article 74678.
however,deals expresslyend exclusivelywith the beds and channelsof
watercoursesthat are owned or may be claimed as the~propertyof the
state. Therefore, the pjvotal questions include (1) whether any
constitutionalprovisionsllreventthis kind of relinquishmentat all
or prevent the manner in which the state relinquishesthe submerged
lands, and (2) the nature end extent of the interestrelinquished.
Oue constitutionalprovisionin particularprovides that certain
public lands are dedicatedto the public free school fund. Article
VII, section 2 of the Tex;tsConstitutiondetermineswhich lands are
part of this fund:
All funds, lands and other property heretofore
set apart and cl$lpropriated for the support of
public schools;a,11the alternatesectionsof land
reserved by the State out of grants heretofore
made or that may b,ereafter
be made to railroadsor
other corporationsof any nature whatsoever; one
half of the public domain of ,the State; and x
sums of money thaii:
may come to the State from the
sale of any port& of the same, shall constitute
a perpetualpubli;:school fund. (Emphasisadded).
See also Tex. Coast. art. VII, 114, 5; State v. Bradford, 50 S.W.Zd.
at 1073.
The Texas SupremeCourt:In State v. Bradford,50 S.W.Zd, at 1075.
examined section 2 of artj,cleVII and concludedthat the draftersof
the Texas Constitutiondid not intend article VII, section 2. by its
terms, to appropriatethe beds of navigablewatercoursesto the school
fund. Thus. articleVII, Ilection 2. does not, independentof legiela-
tlon, sutomaticallyplace one-halfof the beds of public watercourses
in the public free school.fund. State v. Bradford, 50 S.W.Zd. at
1075; Attorney General 0p:LnioneE-881 (1976); M-356 (1969); C-90
(1963); V-987 (1950). Moreover, although the legislature has
extensiveauthority to de~.ermine what shall initially constitutethe
school fund’s one-half of the public domain, once appropriated,the
leglslsture’saction is final. Hague v. Baker, 45 S.W. 1004, 1005-106
(Tex. 1898); AttorneyGene,calOpinionsE-881; M-356.
The Bradford court alSo consideredwhether the “SettlementAct of
Pebruaa 23, 1900” placed the beds of navigable streams in the
permanentschool fund. Acta 1900. 26th Leg., 1st C.S., ch. 11. at 29.
p. 1346
Mr. CharleaD. Travis - Page 4 (J&299)
After citing numerous statuteswhich were enacted subsequentto the
Act of February 23. 1900 and vhich dealt expresslywith the beds of
uavigablawatercourses,the court concluded that this later legiala-
tion was pateutly inconsistentwith the conteutionthat the legisla-
ture iuteudedthe Act of Pehruery23, 1900 to set apart and grant such
public landa to the permanent school fund. 50 S.W.2d. at 1073-75.
Couaequently,aa of the time when article 7467a was enacted,March 30,
1925, the atate atill held the beda of uavigablewatercoursesin trust
for the public; the river bed portion of the public domain had not
been dedicatedto the permanentfree school fund or otherwisegranted
to any other individual(a)or entity(s).
During the same legislativesessionwhich spawned article 7467a.
the Thirty-ninth Legislature emphasized that river beds were not
dedicated to the permanent school fund by passing article 4026.
V.T.C.S.,which provided thrt
All of the public rivers . . . togetherwith their
beda and bottoms, and all of the productsthereof,
ahall continue sod remain the property of the
State of Texas exkpt in so far as the State shall
permit the uae o:rsaid waters and bottoms. . . .
(Emphaaiaadded).-
This act was repealedby the Sixty-fourthLegislature,Acts 1975, 64th
Leg.. ch. 545, )2(a)(2),at.1804, and replacedwith substantiallythe
same language.by aectiou l.Dll of the Parks and Wildlife Code. Thus.
the prwiaiou. as originaLlyenacted in article 4026. is relevant to
the validity of article 7467a in light of the provision dealing with
the pexmanentschool fund because it shove that thia land was not part
of the fund. It is also relevant to the nature and extent of the
interestrelinquishedby article7467a.
The previous diacussim.demonstratesthat the state's stream and
river beds bad not been dedicatedto the permanent school fund prior
to the enactment of atticlo 7467a. Because article 7467a operates to
relinquish atate river beds at various times to qualifying
muuiclpalitiesas those cities grow, dedications to the permanent
school fuud mede subsequentto the enactmentof article 7467a are also
relevant. Later dedicatio~na. however, do not invalidate article
7467s; rather, they affect the uature and exte.utof the interest
relinquished. As will be men, they affect the extent of,the Interest
relinquishedbecause at diatessubsequent to the passage of article
7467a. the legislaturedid dedicatedifferentportions of the estate
in its river beds to the permanent school fund. Article 7467a
purports only to relinquilll the interest in state stream and river
beds vhich "may be owued ,,I:claimed as the property of said State."
Thus, the act caunot and does not operate to relinquishan interestof
which the state haa otherw:.sedisposed.
p. 1347
nr. CharlesD. Travis - pagt 5 (a-299)
In 1921. prior to the snactmantof article 7467a. the legislature
enacted a provisionwhich t.1)transferredall unexpendedmoney in the
state treasuryat that time to the credit of the Game. Fish and Oyster
Fund which had been receivedas or from royalty on oil and gas leases
issued upon river beds to the availablepublic free school fund, and
(2) dedicated all sums of money received thereafteras royalty upon
oil and gas leasesfrom leases issued upon river beds to the available
public free school fund. Ac:ta1921, 37th Leg., ch. 55. The interest
relinquishedby article 7467a is subject to and limited by this
royaltylatereat.
Similarly,subsequentto the passage of article 74678 and sub-
sequent to the Texas Supreme Court's decision in Bradford, the
legislaturededicatedall the income from the mineral developmentof
the state'sriver beds to zbe permanentschool fund. Acts 1935, 44th
Leg., ch. 140, 12, repealedby Acts 1969. 61st Leg., ch. 51, at 3025.
Section 15.01(a)(6)of the Texas EducationCode replacedthe provision
and provides for the same dedicationof the income from the mineral
developmentof submargedlrds.
In 1939, the legialatwcesevered the surface and mineral estates
in the state'sriver beds 2nd granted the entire mineral estate in the
state's river beds to the permanent school fund. Acts 1939, 46th
Leg., ch. 3, at 465 (V.T.C.,S.art. 5421c-3. 12. nou repealed). The
provisionwas repealedin 1.5177.and replacedwith section 11.041(a)(l)
of the Taxes Aatural ResourcesCode. Acts 1977, 65th Leg., ch. 871,
at 2689. The state mav cause such a horizontal severance of the
surface and mineral es&cs in its submerged lands.
State v. AranaasDock and channelCo., 365 S.W.2d 220.
APP. - San Antonio 1963,v&t ref'd).
The interest relinquishedby article 7467a does not include the
royaltyinterestdedicatedto the availablepublic free school fund in
1921. Similarly,any reljnqulshmentwhich became effectiveor which
may become effectiveupon 1:beexpansionof the boundariesof qualified
cities and touna, as envisionedby article 7467a. subsequentto the
grant in 1935 of the minoral estate income from river beds to the
permanentfund and to the 8rant in 1939 of the mineral estate itself
in river beds to the permanentfund, does not include these interests.
Once the legislaturehas dedicatedland to the permanent school fund,
it cannot reeuurooriatethe:land without a constitutionalamendment.
Hague v. Bake;, 4'5S.U. 1004; Eyl v. State, 84 S.W. 607, 611 (Tex.
Civ. App. 1904.writ ref'd:,;;
AttorneyGeneral GpinionaE-881;M-356.
No other statutesgrcurta greater interest in the state's sub-
merged river bed lauds to another entity or individual. But see Tex.
Nat. Ites.Code 511.041(a)(3)(Texas-Gulfof Mexico tidelandsgrant to
school fund not limitedto mineral estate and could include tidewater
portions of river beds); see, e.g., Attorney General Opinions H-881
(1976); C-90 (1963). You sapeciallyexpress concern about sand and
gravel. Sand and gravel ace not. however,mineralswithin the meaning
p. 1348
l4r.Charles0. Travis - Page 6 (m-299)
of the ststutea recodifiedin section 11.041 of the Natural Resource
Code. See Moser v. United !jtatesSteel Corporation,676 S.W.2d 99,
Eeinatev. Allen, 217 S.W.Zd 994, 997
these surface substances are excluded from
dedicationof the mineral estate to the public free school fund. See
Attornay General Opinion C-%1. Control of these substancesdepex
upon other statutoryprovisitrr~s
to be discussedlater.
Two other constitutionalprovisions deserve mention at this
point. Article III, section 51 of the Texas Constitutiondenies the
legislature the power to stake any grant of public money to any
Individualor entity. Secti,on59a of article XVI indicatesthat the
conservation,development,and preservationof all natural resources
related to rivers and atreasa in the state are declaredpublic rights
and duties.
As indicatedpreviously.Texas courtshave held that the legials-
Cure mav relinaulsh title i:o the land beneath eublic watercourses.
Stats v: l!radfo>d,50 S.W.2d, at 1078; Moore v. 'Ashbrook.197 S.W.2d
at 518; Attorney General Opia~lon
MW-489. Occasionally,the public use
and enjoymentof propertyurder navigablewaters "may be promoted and
increased.bv allowinn vortioua of it to become orivata orooertv."
Coastal Industrial W%r v. York, 532 S.W.26, at 953
rhrlthority
(quotingfrom City of Calvesionv. Menard, 23 Tex. 349, 393 (1859).
The Texas Supreme Court.in State v. Bradford, consideredboth
article III. section 51 and .articleXVI, section 59a. in the context
of the "Small Bill." article 5414a. V.T.C.S.,50 S.W.2d. at 1076-77.
Analysis of the court's trwtment of these provisionsis helpful to
the case at hand. The "Seal1 Bill" is a retrospectiveact which
"validated" the titles to lands whose surveys had been made across
streams subsequentlyclaimed to be aavlgable. With regard to article
III, section 51, the court held that the "Small Bill" was valid
because the state had received and retained cousiderationfor the
patents and awards validate&by the act. 50 S.W.Zd.at 1077.
Similarly,the act was expresslyheld not to contravenesection
59a of articleXVI because the act
reserves to the state. and the public generally,
and excepts from the operatiou of the act, the
natural resources located in the river beds
sffectedand, by :Lmplicatiou.
the uecessaryaccom-
panying rights of ingress and egress to those
resources,and al:Lother rightsnecessaryto their
proper use and dewrlopment.
50 S.W.2d.at 1076. The cow:t indicated.generally,that
the state has authority to validate the titles of
the land lying in the beds of navigable streams
p. 1349
Hr. CharlesD. Travis - Pagl?7 (m-299)
issued in good fa:Lth.
reservingunto the state for
the use of the p~d~lica11 rights reserved by the
statutoryand coa~:itutionslprovisionspertaining
to navigableatre.uns.
-- . . . (Emphasisadded).
50 S.W.2d.at 1077.
Applicationof these principlesto the validlry of article 7467a
under article III, section 51 and articleXVI, section 59a is roughly
analogous. We concludethat the public interestprotectedby both of
these provisions is prescwed by the fact that the legislature
intendedthat the submerged'landsrelinquishedby article 7467a remain
impressedwith a public trust when held by qualifyingmunicipalities.
The legislature vi11 not be presumed to have intended an
uncouariturional result.
The language employedby the legislaturein article 7467a mani-
fests the legislativeintent that the interest in state stream and
river beds which is relinqwlahedby article 7467a does not amount to
an unrestrictedgrant of fee simple title. Section 1 of the act
contains the operative wclrds "relinquish" and "quitclaim." By
analogy,under Texas' law on deeds, a quitclaimis baaed on the theory
that the grantor has either no title or imperfecttitle but that the
grantorneverthelesspossessessome present interest in the property,
undefined in its nature. that is released by the quitclaim. See
Richardsonv. Levi, 3 S.W. 444 (Tex. 1887); Green v. West Texas Coal
Hining 6 DevelopingCo., 2'215 S.W. 548 (Tex. Civ. App. - Austin 1920,
writ ref'd); Breen v. Morehead, 126 S.W. 650 (Tex. Civ. App.,l910),
e. 136 S.W. 1047. MorEzr. section 2 of the act indicatesthat
the purpose of the act is l:barqualifiedcities will not "be hindered
in their civic improvamanta'byreason of the State's claim of property
rights therein. . . ." The languageused in both sections of article
7467a. Interpretedin light of the rules of constructionfor grants of
submerged land, that grants of public land be strictly COtI6tNe.d
against grantees, avidencc!sthe legislative intent to relinquish
state- owned stream and riwr beds which lie within the boundariesof
qualifyingmunicipalities!!orpublic purposes only. Thus. the title
relinquishedremains impressedwith a public CNSC despite the lack of
an express reservation. SET Attorney General Opinion 1121-489 (1982);
Tex. Water Code S5.021 @6lic has continuing rights in waters of
navigable watercourses); Carrithers v. Terramer Besch Coswnity
ImprovemaneAsa'n., 645 S.U,2d,at 772; see also Parks and Wild. Code.
Il.Oll(c)(discussedinfra).
You suggest that article 7467a is also constitutionally suspect
because it allows the specifiedmunicipalities.rather than the state,
to determinethe amount of state propertythat the municipalitieswill
acquire. The Texas Constitution,in srticle III, section 1, and in
articleI, section28 prohibitsthe delegationof legislativepower to
make or suspend law. Nevertheless.Texas law conaiatentlyrecognizes
a distinctionbetween a del.agationof legislativepower to make a law
p. 1350
Mr. Charles D. Travis - Pags.8 ml-299)
and the discretionaryexercise of a power conferredby a law. -See
AttorneyGeneralOpinionsM-383 (1981);MW-11 (1979).
Both article 74670 and the annexation statutes. see, e.g.,
V.T.C.S. art. 970a and art. 1.183et seq., provide sufficientauthority
and standardsto guide any power given to qualifyingmunicipalitiesto
"acquire" state property by state relinquishment upon municipal
annexation. We emphasizethat article 7467a does not itself authorize
annexation;it merely relir.q,uishea state-ownedstream and river beds
when a city's boundariesarc expandedby annexationseffectedpursusnt
to other authority. See, e.&, art. 970a and art. 1183 et seq.
Aunexation powers are limited in several ways. For example, with
regard to home rule cities,article 1175 requiresthat annexed land be
adjaceut to the city and nof:within another city. city of Longview V.
State ex rel. Spring RI11 Utility District, 657 S.W.2d 430 (Tex.
1983). Similarly, sectior:7 of article 970a. applies the sama
adjacency test to all cities. Pox DevelopmentCompanyv. City of San
Antonio, 468 S.W.2d 338. 33!)(Tex. 1971).
You also express concern about a particular municipality's
annexationof only the bed),of watercourses for the sole purpose of
assuming ownershipof the blzdafrom the state. Article 7467s was not.
however, intended to authorize annexations of only river beds. As
indicated, article 7467a does not itself authorize annexation; its
purpose was to preventhindranceof qualifyingcities' civic improve-
manta caused by the state'lzownership of river beds within municipal
boundaries. V.T.C.S.art. 7467a, 02. Nevertheless.the long-standing
rule in Texas is that, oths:rthan limits imposedby the Voting Rights
Act, the only limit on the power of a city to annex additional
territory is that it be ,sdjacentto the city and pot within the
boundaries of another munic:!;pality.Fox DevelopmentCompany v. City
of San Antonio, 468 S.W.2d, at 339. Article 970a. in section 7 B-l,
also imposes a width limit, prohibitingtoo-narrowstrip annexations.
Further, certain unusual s~:ripannexatiouahave been held invalid on
the basis of a lack of adj,sceky. See, e.g., City of West Orange v.
State ex rel. the City of Grange. 613 S.W.2d 236 (Tex. 1981). The
adjacency of a particular annexation depends upon facts which we
cannot determinein the optzionprocess.
Moreover, articles 11133-87.V.T.C.S.. specifically authorize
limited purpose annexationsof only navigable streams for a specified
distance outside of a city's boundaries. See City of Port Arthur v.
Jefferson County Fresh Watss:c Supply DistrictNo. 1, 596 S.W.2d 553,
555 (Tex. Civ. ADS. - Iz.aumont1980. writ ref'd n.r.e.). The
Municipal Aonexatidn Act, article 9708, did not repeal articles
1183-89. Id. at 556. Arl::;cles 1183-87 were expressly intended as
limited puise annexation statutes which do not confer general
regulatorypowers over subject land. City of Nassau Bay v. Winograd,
582 S.W.2d 505. 508 (Tex. Xv. App. - Rouston (1st Diet.] 1979, writ
ref'd n.r.6.).
p. 1351
i
.
Mr. Charles D. Travis - Page 9 (JH-299)
Tour request regardinS the conaritutionalityof article 7467a
stems from concern over ,)otentialconflicts between the Parka and
WildlifeDepaCCmeBt and municipalitiesvith regard to the department's
reaponaibilityunder chapter 86 of the Texas Parka and Wildlife Code
to mauage and protect t'ke sand and gravel found in state-owned
atresmbeds. Because the submerged lands relinquishedto qualifying
cities by article 7467a are impressedwith a public fist, the cities
do uot have unrestrictedpower in the first place over the river beds "
Within their boundaries. See Attorney General Opinion WW-489.
Moreover, the legislaturehaExpressly placed control of sand and
gravelwithin the jurisdic,::lon
of the Parks and WildlifeDepartment.
As indicated pravloualy, during the sama legislative session
which resulted in article 7467a. the Thirty-ninthLegislaturepassed
article 4026, which reserved ~to the state the beds of all public
rivers and placed regulat:tonof such beds in what is nov the Texas
Parks and Wildlife Departsent. The provisionwas repealed in 1975,
and replacedby sectionl.OLl(c)of the Parks and WildlifeCode. Acts
1975, 64th Leg., ch. 51,5. 82(a)(2). at 1804. Section 1.011(c)
provides.in part:
fall the beds and bottoms and the products of
the beds and bottoms of the public rivers . . .
are the property of this state. m state may
permit the use of the waters and bottoms and the
taking of the pli'ductsof the bottoms and waters.
(Emphasisadded).
Section 1.011(d)provides:
The Parks and Wildlife Department shall regu-
late the taking snd conservationof fish, oysters,
shrimp, crabs, turtles, terrapins, mussels.
lobsters.and all,other kinds and forms of marine
life, or-sand, gravel, marl, uud shell,~and all
other kinds of shell in accordance with the
authorityveatei~in it by this code. (Emphasis
added).
See also Parka and Wild. Code 886.001et seq.
Where the legislatureintends a particularpatent or grant, to
authorize a political aubdivlsion CO exercise control over the
productsof submergedlands or flats, the legislaturebaa expresslyso
provided. See Parks and Wild. Code 086.012;Texas Parks and Wildlife
Department~Champlin Petroleum Company, 616 S.W.Zd 668 (Tex. Civ.
APP. - Corpus Christ1 1981, writ ref'd n.r.e.); see also Amdel
Pipeline Inc. v. State, 541 S.W.2d 821 (Tex. 1976); Attorney Gas
Opinion MW-367 (1981). 'Cne legialaturehas provided counties and
cities with a proceduref3.rusing the products of river beds without
p. 1352
Mr. Charlea D. Travis - Page LO (JX-299)
wment. sac Parks and Wild. Code 1586.013.86.014, but has not given
them jurixction over such pmducts.
Consequently,we couclud,s that article 7467a was not intendedto
coufer upon'qualifylngcities the power to control the productsof the
river beds relinquishedby the act. The act was necessaryto prevent
property law hindrance in c:l.vic improvements caused by the state
holding title to river beds which are located within municipal
boundaries. Although such c:ltjeshold the authority to wake certain
public improvements In. over, and around the river beds within their
boundaries, their power is uot unlimited. Just as they cannot
alienate land impressed with a public trust without express
legislative authority, see Attorney General Opinion MW-489. they
cannot alienate the products,of land impressedwith a public trust
without express legislativeauthority.
Subject to the interest of the public free
school fund in tht!mineral estate la river beds
and channelswhich are held by the state in trust
for the public, article7467a. V.T.C.S.,constitu-
tionally relinquis'nes title to the portions of
river beds and chmnels which certain qualified
cities may acquit'sthrough annexation effected
Pursuant to other authority. Such submergedlands
remain impressed with a public trust, and
products, including gravel, may not be removed
therefrom except for civil improvementprojects
and cannot be exploited couuerciallyby a city
without furtherexpress legislativeauthority.
JzJ@ Attoruey General of Texas
TOM GRRRN
Plrst AssistantAttorneyGenc:ral
DAVID R. RICRARDS
Executive Assistant AttorneyGieneral
RICR GILPIN
Chairman.Opinion Cosmlttee
Preparedby JenniferRiggs
AssistantAttorney General
p. 1353
llr.Charles D. Travis - Pagn 11 ml-299)
APPROVED:
OPINION COBNITTEE
Rick Gilpln, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Iloellinger
JenniferRiggs
Nancy Sutton
p. 1354