Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
Msy 17, 1982
MARK WHITE
Attorney General
Honorable Bennie Bock II opinion No. Pg.&471
Supreme Court Building Chairman
P. 0. Box 12543
Committee on Environmental Affairs Re: Removal of timber from
Austin. TX. 78711. 2548 _ . .
512l47525Ql
Texas House of Representatives land restricted to use ror
Telex 910/874-1367 P. 0. Box 2910 public park and/or recreational
Telecople~ 51214750288 Austin, Texas 78769 purposes
Dear Representative Bock:
1507 MaIn SL. suite 1400
DallP5. TX. 7s201-47oS
214l742J3S44 You have requested our opinion regarding the authority of the
city of Rusk to sell timber rights to a 293.73 acre tract located in
Cherokee County. In addition, you inquire as to what form a
4524 Alberta Ave.. Suite 180
conveyance of timber should take; the application of articles 1019,
El Paso, TX. 79905-2793
915/-
5421q, and 5421c-12, V.T.C.S.. to the proposed sale; and the
disposition of proceeds from such sale.
1220 Dallas Ave.. Suite 202 In your opinion request you state that the land in question was
Houston. TX. 77W2-W85
obtained by trading a portion of a 487.33 acre tract which was
71-
conveyed to the city of Rusk by the Sixty-second Legislature, Acts
1971, chapter 526, at 1787 [herein ,referred to as Senate Bill No.
808 Broadway. Suite 312 5201. The act specifies that "the land herein conveyed is to be used
Lubbock. TX. 7S401CM79 by the city of Rusk for public park and/or recreational purposes. If
SW747-522.0
such land should be traded by the city of Rusk for other land, such
other land shall be used for the same purposes." _Id. at 12.
4309 N. Tenth, Suits B
McAllen. TX. 75501-1885 Therefore, under the tenas of the grant, the tract in question is
5w6S2.4547 impressed with the same restrictions on use as the original 487.33
acres conveyed by Senate Bill No. 520.
2w MaIn Plaza. suite 400
San Antonlo. TX. 75205-2797 Our answer to your inquiries will depend on the type of interest
51212254181 the city intends to convey. A timber deed which conveys title to
standing timber, and contains language specifically granting a
An Equal Opportunity/
perpetual right to cut and remove, conveys an interest in land.
Affirmative Actlon Employer Lodwick Lumber Company v. Taylor, 98 S.W. 238 (Tex. 1906).
The city of Rusk is a general law city whose authority to convey
an interest in land dedicated to park purposes is granted by statute.
A sale of perpetual timber rights would therefore be by virtue of, and
subject to, the requirements of articles 1017 and 1019, V.T.C.S.
Zachry v. City of San Antonio, 305 S.W.2d 558 (Tex. 1957); City of
p. 1645
Representative Bennie Bock II - Page 2 (MW-471)
Dublin v. Barrett, 242 S.W. 535 (Tex. Civ. App. - San Antonio 1922,
writ dism'd w.0.j.).
Article 1017 provides in part:
The governing body of any incorporated city or
town in this State, however incorporated, may sell
and convey any land or interest in land owned,
held or claimed as public square, (or.) park....
The proceeds of any such sale shall be used only
for the acquisition and improvement of property
for the same uses as that so sold... such sales
shall be made by an ordinance passed by such
governing bodies which shall direct the execution
of conveyance by the mayor or city manager of any
such city or town.
Article 1019 provides:
No public square or park shall be sold, until
the question of such sale has been submitted to a
vote of the qualified voters of the city or town,
and approved by a majority of the votes cast at
such election.
We conclude that a conveyance of perpetual timber rights to the
subject tract, since it is an interest in real property, can be made
only .after such conveyance has been approved by the majority of the
voters in an election as provided by article 1019. The conveyance
could then be made pursuant to city ordinance as provided by article
1017. Proceeds from the sale could only be applied toward the
acquisition or improvement of property used for public park and/or
recreational purposes.
We also conclude that the provisions of articles 5421q and
5421c-12, V.T.C.S., are applicable to a sale of perpetual timber
rights by the city of Rusk.
Article 5421q reads in part as follows:
Section 1. No department, agency, political
subdivision, county, or municipality of this state
shall approve any program or project that requires
the use or taking of any public land designated
and utilized prior to the arrangement 'of such
program or project as a park, or recreation
area... unless such department, agency, political
subdivision, county, or municipality, acting
through its duly authorized governing body or
p. 1646
Representative Bennie Bock II - Page 3 (WW-471)
officer, shall determine, after notice and a
public hearing as required herein, that (1) there
is no feasible and prudent alternative to the use
or taking of such land, and (2) such program or
project includes all reasonable planning to
minimize harm to such land, as a park (or)
recreation area... resulting from such use or
taking; clearly enunciated local preferences shall
be considered, and the provisions of the Act do
not constitute a mandatory prohibition against the
use of such area if the findings are made that
justify the approval of a program or project.
Sec. la. The department, agency, board, or
political subdivision having control of the public
land is not required to comply with Section 1 of
this Article if:
(1) The land is originally obtained and
designated for another public use and is
temporarily used as a park, recreational area, or
wildlife refuge pending its utilisation for the
originally designated purpose;
(2) The program or project that requires the
use or taking of the land being used temporarily
as a park, recreation area, or wildlife refuge is
the same program or project for which the land was
originally obtained and designated; and
(3) The land was not designated by the
department, agency, political subdivision, county,
or municipality for use as a park, recreation
area. or wildlife refuge prior to the effective
date of Section la of this Act.
Section la became effective September 1. 1975, while the city received
the land in question in 1971. Thus, section la(3) does not apply to
this land. We believe the sale of timber rights constitutes a taking
or use of a park or recreational area, and we find nothing in the
language of section la which would exempt the city from the
requirements of the act.
Article 5421c-12 provides that "no land owned by a ,political
subdivision of the State of Texas may be sold" without publication of
notice that the land is offered for sale and the procedures under
which sealed bids to purchase the land may be submitted. While there
has been no judicial determination as to whether article 5421c-12
p. 1647
Representative Bennie Bock II - Page 4 (MW-471)
applies to a sale of less than fee simple interest, section 4 of the
act provides:
Any conveyance, sale or trade wade under the
exemptions set forth in Section 2, shall never be
for less than the fair market value of the land or
interest being conveyed, sold, or traded, as
determined by an appraisal obtained by the
political subdivision, which shall be conclusive
of the fair market value thereof.
We construe the statutory phrase uan interest in land" in section
4 of the act to apply to conveyances of less than fee simple title.
Therefore, the city of Rusk would be required to publish notice and
receive sealed bids prior to a sale of perpetual timber rights on the
subject tract.
The foregoing discussion has been premised upon the assumption
that the city of Rusk intends to sell a perpetual timber right which
would constitute a conveyance of an interest in the park land. With
the exception of the application of article 5421q, different
conclusions will result if the city intends to convey something less
than a perpetual estate in the subject timber. In Texas, a conveyance
of standing timber which specifies a limited time for cutting and
removal, or is silent in this regard, is a sale of personalty which
passes title to only those trees which are cut and removed within the
specified time. It passes no interest in the land. Lodwick Lumber
Company v. Taylor, supra; Boykin vi Rosenfield; 9 S.W. 318 (Tex.
1887). Therefore, such a couveyance by the city would not be subject
to the provisioas of articles 1017, 1019, or 5421c-12, since, by their
own terms, these statutes apply only to sales of land or an interest
in land. Article 5421q, however, applies to "E of park or
recreational areas.u (Emphasis added). In our opinion, the cutting
and sale of timber is a "use" within the meaning of the statute, and
the city of Rusk must comply with its provisions prior to any sale.
The city of Rusk, as a general law city, has the general
authority to convey personal property pursuant to article 962,
V.T.C.S. The city is limited, however, in its exercise of this power
with respect to timber growing on the subject tract. The terms of
Senate Bill No. 520 restrict the use of the land granted therein, or
laud obtained in trade, to use as a public park. The city is
precluded from effectuating a sale of timber if said sale constitutes
using the land for something other than park or recreational purposes.
Zachry v. City of San Antonio, supra. We have found no authority, and
we are not prepared to state categorically, that the removal of timber
from park land is per se a non-conforming use. Such a determination
is a factual matter which we are not empowered to determine. It is
our view, however, that a particular use of a park or recreational
p. 1648
Representative Bennie Bock II - Page 5 (Mw-471)
I
area would likely be judicially upheld as permissible, if it would
reasonably and probably contribute materially to the enjoyment of the
land by members of the public. King v. City of Dallas, 374 S.W.Zd 707
(Tex. Civ. App. - Dallas 1964, writ ref'd n.r.e.); City of Dallas v.
Etheridge, 253 S.W.2d 640 (Tex. 1953). The removal of timber must
therefor be directly related to the improvement of the land for park
or recreational purposes.
SUMMARY
The city of Rusk is empowered to sell timber on
land dedicated for park and/or recreational use.
A sale of perpetual timber rights is a sale of an
interest in real property. Therefore, the city
must comply with the requirements of articles
1017, 1019, 5421q, and 5421c-12. A sale of
limited timber rights is a sale of personalty, but
constitutes a use of park land under 5421q. The
proceeds of a sale of limited timber rights may be
expended only for the improvement of the land for
park or recreational purposes.
MARK WHITE
Attorney General of Texas
JOEN W. FAINTER, JR.
First Assistant Attorney General
RICBARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bob Hughes
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p. 1649